Raymond K. Hoxsie Real Estate Trust v. Exxon Education Foundation

No. 97-557-L (81 F. Supp. 2d 359, 50 ERC 1084) (D.R.I. February 4, 2000)

The court holds that a landowner whose property was previously owned by gasoline companies, may bring Resource Conservation and Recovery Act (RCRA) claims against the companies for groundwater pollution allegedly caused by leaking underground storage tanks (USTs), but the landowner cannot bring a state-law groundwater contamination claim against the companies. The court first holds that the companies can be held liable for petroleum leaks from the USTs that were removed before enactment of the Hazardous and Solid Waste Amendments (HSWA). Because the companies are also owners of the USTs according to RCRA regulations, they can currently be in violation of RCRA by failing to remediate contamination caused by the USTs. It is irrelevant that the USTs were removed before the enactment of HSWA. The companies' status as owner is not altered by such a distinction. Additionally, there is no language in the statute or regulations suggesting that a confirmed release must have occurred after the statute's enactment in order to trigger an owner's corrective action duties. The court next holds that the landowner's evidence of contamination and of migration of that contamination is sufficient to establish a genuine issue of material fact as to whether the contamination presents an imminent and substantial endangerment to health or the environment. It is undisputed that the contamination levels on the property exceeded state standards, Conformance with state environmental standards is relevant in determining whether contamination constitutes an imminent and substantial endangerment. Therefore, the presentation of such evidence is sufficient to reasonably lead a fact finder to determine that an imminent and substantial endangerment exists. Additionally, neither the absence of an expert opinion on the ultimate factual issue, nor the groundwater's designation as non-potable is fatal to the landowner's case. The court further holds that there exists a genuine issue of material fact as to whether the companies contributed to contamination on the property. In situations of consecutive ownership, circumstantial evidence is sufficient to allow a fact finder to determine the timing of a leak when it cannot be determined by direct evidence.

The court additionally holds, however, that the companies are not liable under state law for intentional or negligent contamination of the groundwater. The state statute only applies prospectively and the landowners have failed to produce evidence of leaks that occurred after enactment of the statute. The state statute is not violated by failing to remediate a spill that occurred prior to the statute's enactment, even if the resulting contamination persists subsequent to that date.

The full text of this opinion is available from ELR (14 pp., ELR Order No. L-171).

Counsel for Plaintiffs
William M. Dolan III
Brown, Rudnick, Freed & Gesmer
One Providence Washington Plaza
Providence RI 02903
(401) 276-2600

Counsel for Defendants
Robert D. Fine
Chace, Ruttenberg & Freedman
One Park Row, Ste. 300, Providence RI 02903
(401) 453-6400

[30 ELR 20308]

[NO TEXT IN ORIGINAL]