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February 9, 1993

PETER D. GACHE, Plaintiff,


The opinion of the court was delivered by: GERARD L. GOETTEL



 The Town of Harrison, New York maintains a municipal garage on Barnes Lane in the Purchase area of Harrison. The garage is primarily used for storage of highway maintenance vehicles. Beginning around 1970, the Town began dumping waste materials (including brush, concrete, scrap metal and auto parts) into a landfill behind the garage. Since 1970 and until 1989, when the Town ceased its dumping activities, the landfill gradually spread onto property owned by plaintiff Peter Gache. From 1982 through 1989, the Town charged private third parties, including gardeners and landscapers, a fee to dump materials into the landfill located on plaintiff's land. The Town never sought permission to dump on plaintiff's property. Plaintiff has offered evidence showing that the landfill sits atop or adjacent to a stream.

 In 1989, the Town closed access to the landfill and began using an alternative site for its waste disposal. This action was taken after plaintiff had served a notice of claim pursuant to § 50-e of New York General Municipal Law. The landfill allegedly occupies some 5.5 acres of plaintiff's property and reaches in some areas a height of over 20 feet. Plaintiff retained two environmental consulting firms to sample the landfill's soil, the air above it, and the water and sediments in surrounding streams and wetland areas. The sampling data was also analyzed by an environmental expert retained by the Town.

 In September 1990, plaintiff filed this action against the Town of Harrison and the Village of Harrison *fn1" alleging violations of the Resource Conservation of Recovery Act ("RCRA"), 42 U.S.C. §§ 6972(a)(1)(A) and 6945(a) and the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9607. Plaintiff also raises state claims of trespass, public and private nuisance, inverse condemnation, and zoning violations.

 Before the court today are motions for partial summary judgment brought by the defendants Town of Harrison and the Village of Harrison (collectively the "Town") on plaintiff's RCRA claim, the injunctive relief requested under both environmental statutes, and certain response costs claimed by plaintiff. Defendant also seeks summary judgment on plaintiff's claims of trespass, nuisance, inverse condemnation, and zoning violations or in the alternative, an order in limine precluding plaintiff'S expert from testifying on issues of valuation and psychological impact.

 Plaintiff has cross-moved for partial summary judgment on defendants' affirmative defense of adverse possession. In response, defendants have moved to strike the exhibits to plaintiff's memorandum in opposition to their summary judgment motions.


 A. Defendant Town's Motion For Partial Summary Judgment on the Environmental Claims

 Turning to the substantive motions, defendants first argue that plaintiff's RCRA claim must be dismissed and excavation of the landfill denied because no evidence exists showing any threat to human health or the environment from the defunct landfill. Defendants also seek summary judgment on plaintiff's claims for remediation costs under RCRA and response costs under CERCLA.

 To prevail on a motion for summary judgment, the moving party must demonstrate "that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). only disputes over facts that might affect the outcome of the suit under the governing law will preclude the entry summary judgment. Further, the court's function is not to resolve disputed issues of fact but solely to determine if genuine issues of fact exist. Uncertainty regarding the truth of any alleged material fact will defeat a summary judgment motion. United States v. One Tintoretto Painting, 691 F.2d 603, 606 (2nd Cir. 1982).

 Summary judgment is appropriate when, after drawing all reasonable inferences in favor of the non-moving party and reading the record in a light most favorable to him, no reasonable trier of fact could find in favor of the non-moving party. Murray v. National Broadcasting Co., 844 F.2d 988, 992 (2d Cir.), cert. denied, 488 U.S. 955, 102 L. Ed. 2d 380, 109 S. Ct. 391 (1988).

 1. RCRA Claim

 Defendants contend that summary judgment is required for plaintiff's RCRA claim because plaintiff has offered no evidence that a continuing violation of RCRA exists. Since the Town's dumping ended in 1989 and no evidence of further dumping exists on the record, defendants claim that plaintiff has alleged only past violation, not actionable under section 7002(a)(1)(A) of RCRA, 42 U.S.C. § 6972(a)(1). Plaintiff contends that whether the Town's violation of RCRA is ongoing is a question of fact which precludes summary judgment.

 Section 7002(a)(1)(A) of RCRA permits citizens suits against any person "who is alleged to be in violation of any permit, standard, regulation, condition, requirement, or order which has become effective pursuant to [RCRA]." 42 U.S.C. § 6972 (a)(1)(A). The section continues by saying that "any action under paragraph (a)(1) of this subsection shall be brought in the district court for the district in which the alleged violation occurred." Id. (emphasis added).

 Under the plain meaning of the statute, the continued presence of illegally dumped waste could constitute being "in violation" of a RCRA regulation or standard. The second quoted passage from (a)(1), stated in the past tense, clearly implies violations that have already occurred. Congress could have easily constructed this provision to rule out materials already discharged as a continuing violation by using a phrase such as "in which the alleged violation is occurring." Reading these provisions of (a)(1) together so as not to render the section contradictory, we conclude, as other courts have, that improperly discharged wastes which continue to exist unremediated represent a continuing violation of RCRA.

 The crux of the Town's position is that because it has not dumped any materials after 1989, nor has plaintiff shown evidence of harmful wastes seeping out of the landfill, only past violations of RCRA can exist.

 To support its position, the Town, citing Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 98 L. Ed. 2d 306, 108 S. Ct. 376 (1987), argues that no present RCRA violation can exist since the Town no longer dumps into the landfill. We think this argument overstates the Gwaltney holding. In Gwaltney, a citizens group sought civil penalties for past discharges in violation of a NPDES permit, discharges which had entirely ceased. The court held that a citizens suit could only be brought where an ongoing violation existed.

 The Town argues, and we do not disagree, that wholly past violations of RCRA cannot be subject to citizens suits under § 7002 of RCRA. See Chartrand v. Chrysler Corp., 785 F. Supp. 666, 669-70 (E.D. Mich. 1992); Lutz v. Chromatex, Inc., 718 F. Supp. 413, 424 (M.D. Pa. 1989). However, the Supreme court in Gwaltney did not detail what sort of actions could constitute a continuing violation. The focal question becomes whether defendants' alleged violations of RCRA should be considered wholly past violations.

 Defendants focus on the act of dumping in assessing whether a continuing violation of RCRA exists. The Town argues that all dumping activities ceased in 1989 and have not been resumed since. We reject this contention as an overly narrow view of the violation that occurred. The continued presence of illegally dumped materials on plaintiff's property could constitute a continuing violation of RCRA. The environmental harms do not stem from the act of dumping when waste materials slide off the dump truck but rather after they land and begin to seep into the ground, contaminating soil and water. So long as wastes remain in the landfill threatening to leach into the surrounding soil and water, a continuing violation surely may exist.

 Other courts have held that a claim of an ongoing violation need not rest on the occurrence of discharges around or after the filing of a lawsuit. See, e.g., North Carolina Wildlife Foundation v. Woodbury, 1989 U.S. Dist. LEXIS 13915, 29 ERC (BNA) 1941 (E.D.N.C. 1989); Fallowfield Development Corp. v. Strunk, 1990 U.S. Dist. LEXIS 4820 (E.D. Pa. 1990). In particular, the court in North Carolina Wildlife held:

 29 E.R.C. at 1943. In short, the disposal of wastes can constitute a continuing violation as long as no proper disposal procedures are put into effect or as long as the waste has not been cleaned up and the environmental effects remain remediable. The court in Fallowfield found similarly:

 If a person disposes of hazardous waste on a parcel of property, the hazardous waste remains in that property insidiously infecting the soil and groundwater aquifers. In other words, the violation continues until the proper disposal procedures are put into effect or the hazardous waste is cleaned up . . . To allow a citizen suit only in situations where the owner or operator of a hazardous waste facility is disposing of hazardous waste on a daily basis would virtually read section 7002 out of RCRA.

 * * *

 Because improperly disposed of hazardous waste remains a remediable threat to the environment, this court believes that congress intended to allow citizen suits under section 7002 of RCRA for past violations where the effects of the violation remain remediable. To conclude otherwise would allow an owner or operator of a hazardous waste facility to avoid liability under section 7002 by claiming that the last improper disposal of hazardous waste prior to the commencement of the suit was the last disposal, making the violations wholly past. In this way, the owner or operator could easily avoid liability by simply not disposing of any hazardous waste after the commencement of a citizen suit. This court does not believe that congress intended to allow the owner or operator of a hazardous waste facility to have complete control over his liability under section 7002.

 Fallowfield, 1990 U.S. Dist. LEXIS at *29-30, *32-33.

 The question then becomes whether in fact the landfill on plaintiff's property continues to cause or threaten environmental damage. The parties vigorously dispute this. Plaintiff's environmental expert stated at deposition that fill from the landfill which sits atop a natural stream is likely contributing uncontrolled runoff to the streams adjacent to the disposal site. The expert further noted that the underground fire at the site is currently burning out of control. In particular, McLaren/Hart Evaluation concluded that "the levels of lead and zinc are of sufficient magnitude to likely produce biological effects and are characteristic of heavily contaminated sediments." Pl. Brief, Exhibit H at 3-4. The McLaren/Hart report concluded that the landfill was contributing lead and zinc to the adjacent wetlands area. Id. at 4.

 The McLaren/Hart Evaluation further noted that "subsurface combustion of organic materials is presently occurring, as evidenced by smoke emitted from the surface over a significant portion of the surface fill. Evidence included smoke originating from blackened holes in the fill surface." Id. at 5. The report stated that as much as one third to one half of the northern portion of the landfill was experiencing unchecked underground fires. Id. Based on its findings, the McLaren Evaluation concluded that the landfill was properly classified as an "open dump" under 40 C.F.R. 257.2 and as a facility violating 40 C.F.R. 257.3.3 through its unpermitted discharge of pollutants into United States waters in violation of the National Pollutant Discharge Elimination System ("NPDES") under § 402 of the Clean Water Act.

 In response, defendants contend that no evidence exists showing that pollutants are fouling any adjacent waters or wetland areas. As support, the Town points to a report completed by Frank A. Jones, an environmental toxicologist retained by defendant. Using data collected by Malcolm Pirnie and McLaren/Hart, two environmental consultants retained by plaintiff, Dr. Jones concluded that the concentrations of toxins at the landfill were not expected to pose a threat to public health even if the property were developed for residential use. See Jones Declaration at 3-4.

 The Jones Report did report higher concentrations of lead and zinc in the landfill stream and wetlands than were present in a northern stream located farther away. It also stated that "the difference in concentrations from sampling locations that 'approximated samples' collected by Malcolm Pirnie and the fact that only a single sample was collected from the landfill stream and wetlands is possibly indicative of an isolated area of elevated lead and zinc in the sediment, but definitely indicates the need for additional sampling before concluding any impacts posed by the site." Id., Geraghty & Miller Risk Evaluation at 2. In his report, Dr. Jones recognized a need for additional data before any firm conclusions could be drawn concerning the leakage of toxins from the landfill into the surrounding stream and wetlands. His report, however, concluded that no adverse impact on wildlife or aquatic life was expected. Id. at 7.

 On the present record, this court cannot say as a matter of law that plaintiff can show no continuing violation of RCRA. Both sides agree that higher levels of lead and zinc are present in the sediment of the landfill stream and wetlands. If the leakage is from the landfill, if those toxins continue to leach into the surrounding soil and water, and if subsurface fires burn unchecked on significant portions of the landfill, plaintiff might indeed prove an ongoing harm. We offer no opinion on any of this. Our function is simply to recognize that landfill's present threat to the surrounding environment, a fact material to plaintiff's claim of a continuing violation of RCRA, is disputed. We must therefore deny defendants' motion for summary judgment on the RCRA claim.

 2. Claim for Injunctive Relief

 The Town also argues that whether or not plaintiff can show a continuing RCRA violation, the record does not support any claim for injunctive relief under either RCRA or CERCLA because no evidence demonstrates an actual or potential threat to human health or the environment exists.

 The Town contends that plaintiff has offered nothing to demonstrate even potential adverse effects on human health or the environment that would tip the balance of equities in favor of the permanent injunction and excavation of the landfill at a cost of some $ 6 million. It maintains that plaintiff's environmental expert relied on monetarily compensable economic harms rather than ...

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