Kara Holding Corp. v. Getty Petroleum Marketing, Inc.

No. 99 Civ. 0275 RWS (S.D.N.Y. September 23, 1999)

ELR Digest

The court holds that a state administrative action does not preclude a property owner's Resource Conservation and Recovery Act (RCRA) and Federal Water Pollution Control Act (FWPCA) citizen suit claims against a petroleum company for damage cause by a gasoline spill. The court first holds that the state's administrative action against the petroleum company does not preclude the property owner's citizen suit claims under RCRA. Under RCRA's clear language, the only state action capable of precluding a citizen suit is a civil or criminal action in a court. This language does not afford any preclusive effect to a state administrative action. The court next holds that the state's administrative action does not preclude the property owner's FWPCA claim. A state administrative action does not qualify as an action in a court under the FWPCA's language. Additionally, the property owner's claim survives even though the state is prosecuting under a comparable state law, because the owner gave adequate notice to the company and filed its complaint less than 120 days thereafter. The court further holds that the petroleum company's request for summary judgment should be granted with respect to the property owner's claims for past cost or damages. RCRA does not allow suits by private citizens to recover for purely past damages or to recover costs already incurred by a plaintiff in response to an environmental hazard of the defendant's creation. However, the court does not grant summary judgment to the petroleum company with respect to the property owner's remaining RCRA claims. The owner does not need to show that the petroleum company continues to leak gasoline, or continued to be in violation of applicable environmental regulations when the action was commenced, or that the company is likely to do either in the future. Rather, the property owner only needs to demonstrate that the spilled petroleum has not been properly cleaned up and that it remains in the soil and the surrounding area and may pose an imminent and substantial endangerment.

The full text of this decision is available from ELR (11 pp., ELR Order No. L-106).

Counsel for Plaintiff
Sean E. O'Donnell
Bachner, Tally & Polevoy
380 Madison Ave., New York NY 10017
(212) 687-7000

Counsel for Defendants
Robert G. Del Gadio
Del Gadio & Tomao
EAB Plaza
W. Tower, 12th Fl., Uniondale NY 11556
(516) 683-0200

[30 ELR 20148]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]