6, 1998 and once again on November 1, 1999.
The pictures do not show Mancuso or any members of his family
at the substation but were assertedly taken by him. Defendant
does not object to the admissibility of the photographs and
videotapes or assert that they were taken by someone other than
Mancuso. Considering this evidence in the light most favorable
to plaintiffs, it establishes that Mancuso visited the area of
the substation on a number of days other than May 8, 1998 and
January 11, 2000.
The management of discovery lies within the sound discretion
of the district court; its discovery rulings will not be
reversed absent an abuse of discretion. See Grady v. Affiliated
Cent., Inc., 130 F.3d 553, 561 (2d Cir. 1997). We have already
expressed our concern in this case that Mancuso's "sworn
testimony has shifted dramatically to suit plaintiffs' evolving
litigation strategy." Mancuso, 905 F. Supp. at 1259 n. 9.
However, there is credible evidence that Mancuso visited the
area in question on a number of days other than May 8, 1998 and
January 11, 2000.
The Court therefore finds that Mancuso has at the least
created an issue of fact as to whether he was mistaken when he
initially answered the interrogatories, and will allow his
amended answers to stand.
It is well settled that the statements in an affidavit or
affirmation opposing a motion for summary judgment must be
accepted as true. See Lujan, 504 U.S. at 561-62, 112 S.Ct. at
2137. However, it is also well settled that one cannot "escape
summary judgment merely by vaguely asserting the existence of
some unspecified disputed material facts," Western World Ins.
Co., v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990)
(citations omitted), and may not submit self-serving
affirmations that contradict prior testimony asserted in
depositions, interrogatories, and affidavits. See Reisner v.
General Motors Corp., 671 F.2d 91, 93 (2d Cir. 1982),
Mazzuocola v. Thunderbird Prods. Corp., No. 90-CV-0405, 1995
WL 311397, at *9 (E.D.N.Y. May 16, 1995) ("[f]actual assertions
made in an affidavit submitted in opposition to a motion for
summary judgment may be disregarded if those assertions are
contradicted by statements in response to interrogatories").
Defendant's attack on Mancuso's affidavit is primarily based
on the premise that it avers that Mancuso took photographs and
videotapes of the property every week for three years. We do not
read the affidavit in that way. It contains two separate
statements by Mancuso: (1) that he visited the property every
week for three years; and (2) that on 29 occasions between
January 1998 and February 1999 he took photographs of the
substation as well as videotapes. As stated above, there is
evidence that corroborates the second statement; there are
photographs with the dates of January 1998 and February 1999 and
the videotape depicts approximately 29 different days of taping
of defendant's substation. Although the first statement seems
improbable, there is no evidence which contradicts it. The
affidavit will not be excluded. Therefore, the Court concludes
that, at least for the purpose of deciding the present motion,
the requirement of injury in fact has been satisfied.
B. Causal Connection
With respect to the second requirement of a causal connection
between the injury and the complained of conduct, there is no
need to prove with scientific certainty that defendant's actions
caused the harm suffered by plaintiff. Indeed, Courts of Appeals
have refused to equate the "fairly traceable" requirement of
standing to that of tort causation. Gaston Copper Recycling
Corp., 204 F.3d at 161. Thus, the question of whether
plaintiffs have alleged an injury in fact that is fairly
traceable to alleged violative conduct is one which is distinct
from that of whether plaintiffs have a meritorious claim. See
Lermnan v. Board of Elections in the City of N.Y.,
232 F.3d 135, 143 n. 9 (2d Cir. 2000). The present issue is whether the
alleged injury can be fairly traced to the conduct of defendant
and not that of some non-party. See Lujan, 504 U.S. at 560,
112 S.Ct. at 2130.
Because PCBs are, at least in the concentrations involved
here, colorless and odorless, Mancuso could not have directly
detected their presence in Echo Bay on his drives past the area.
Instead, he claims that he has been offended by the sight of
"deformed and tumored animals in the waters of Echo Bay,"
allegedly the victims of PCBs. If he did see dead or maimed
animals, it is surprising that in all of his trips to obtain
photographic evidence, he never took pictures of them. Moreover,
it is by no means clear that any such damage was caused by PCBs.
As discussed hereinafter, the water in the Bay and the soil
beneath and around it have been repeatedly tested and the PCB
concentration was found to be below environmentally acceptable
It appears equally, if not more likely, that any killing or
maiming of animals was caused by the other types of pollutants
in the Bay, such as oil or raw sewage, with its unspeakable
flotsam, which formed the basis of plaintiffs' lawsuit against
the New York Thruway Authority (the "Thruway Authority"). See
Mancuso, 56 F. Supp.2d at 393-94. However, for purposes of this
summary judgment motion only, this Court finds that there is at
least an issue of fact as to whether at some time Mancuso has
seen at Echo Bay dead or maimed animals whose death or maiming
was caused by PCB pollution, and that the requirement of causal
connection is therefore satisfied.
At the present time, there appears to be no remedy this Court
might grant in this action which would significantly improve
conditions at Echo Bay so that plaintiffs' CWA claim is, for all
practical purposes, moot.
Citizen suits may be brought under the CWA only to prevent
threatened future violations and not to remedy wholly past
violations. See Gwaltney of Smithfield, Ltd. v. Chesapeake Bay
Found., Inc., 484 U.S. 49, 64, 108 S.Ct. 376, 385, 98 L.Ed.2d
306 (1987). The critical time for determining whether there is
an ongoing violation is when the complaint is filed. See
Connecticut Coastal Fishermen's Ass'n v. Remington Arms Co.,
Inc., 989 F.2d 1305, 1311 (2d Cir. 1993). Therefore, in order
to establish a claim under the CWA, the plaintiff must allege,
in good faith, a violation which was continuing as of 1993, when
the action was brought. See Gwaltney, 484 U.S. at 64, 108
S.Ct. at 385.
The doctrine of mootness prevents the continuation of a
lawsuit when "there is no reasonable expectation that the wrong
will be repeated.'" Id. at 66, 108 S.Ct. at 386 (citations
omitted). It protects defendants from CWA suits grounded only
upon discontinued violations while allowing suits against
defendants who seek to evade the consequences of their actions
by mere "protestations of repentance and reform." Id. at 67,
108 S.Ct. at 386 (quoting United States v. Oregon State Med.
Soc'y, 343 U.S. 326, 333, 72 S.Ct. 690, 696, 96 L.Ed. 978
(1952)). Thus, an action will not be dismissed as moot, unless
it is "absolutely clear that the allegedly wrongful behavior
could not reasonably be expected to recur." Gwaltney, 484 U.S.
at 66, 108 S.Ct. at 386 (citations omitted). In the instant
case, there is no reasonable likelihood of significant future
pollution of Echo Bay by PCBs from defendant's
Defendant abandoned the substation 20 years ago, in 1981, and
has done nothing
there since except to pursue a series of cleanup operations. On
June 15, 1992, six months before this action was filed,
defendant entered into a Consent Order with the DEC, see
Mancuso, 967 F. Supp. at 1439 n. 1, in which the DEC ordered the
soil at the substation cleaned to a level of 1 ppm, while
allowing levels of up to 5 ppm in the sediment beneath the Bay.
See Mancuso, 56 F. Supp.2d at 400. These levels are much more
stringent than those set by the Environmental Protection Agency
("EPA") which permits PCB levels of 50 ppm in industrial areas
and 10 ppm in residential areas. See id. (citing
40 C.F.R. § 761.125(c)(2)(ii)).
Defendant worked "under the watchful eye of the [DEC]" for
many years. Mancuso, 967 F. Supp. at 1439. The cleanup was
effective. In 1998, under DEC supervision, defendant tested 150
samples of Echo Bay sediment adjacent to the pipes that Mancuso
claims discharges PCBs into Echo Bay. (Giglio Aff., Ex. D.) Only
one of these 150 samples was above the DEC target level of 5
ppm. This was followed by further cleanup under DEC supervision.
(Id.) On January 11, 2000, Mancuso met with the DEC and the
EPA in an effort to convince them to require defendant to test
other areas in Echo Bay for PCBs. However, neither agency has
required defendant to perform any further testing in the Bay
since the time of this meeting. (Giglio Aff., Ex. D.)
Mancuso's contention that Echo Bay is still contaminated by
PCBs is based upon tests of soil samples taken several years ago
at defendant's substation and areas adjacent thereto, not at the
Bay, and upon clearly erroneous assumptions as to acceptable PCB
levels. Mancuso claims that the acceptable limit for chronic
exposure through drinking water and fish ingestion is 79 pg/l,
the equivalent of 0.000000079 ppm, and that acute toxicity is
estimated to occur above 2 ppb, the equivalent of .002 ppm, but
he cites no evidence therefor. (Webber Aff. at 9.) There is
considerable evidence to the contrary. In 1997, this Court noted
that "the [U.S.] Food and Drug Administration (`FDA') allows
fish with 2 ppm PCBs to be sold for human consumption and food
sold for human consumption to be wrapped in paper containing PCB
levels of 10 ppm." Mancuso, 967 F. Supp. at 1440 (citing
21 C.F.R. § 109.30(a)(7)). In 1999, this Court found that from
February to April 1993, Matrix Environmental Management tested
nine samples taken from various areas of the marina: 4 samples
had no detectable levels of PCBs while the other five all had
levels below .25 ppm. See Mancuso, 56 F. Supp.2d at 400. This
Court further found that:
the levels of PCBs, even in the mud flat and in the
sediment of the marina, where the highest
concentrations would be expected because of the
affinity of PCBs for highly organic matter, are
generally much lower than those that are deemed to
create no unacceptable health risks even to persons
in intimate contact with the soil.
Id. at 400-01.
Mancuso nevertheless claims that there is a continuing
discharge of PCBs from Con Ed's substation into the Bay as water
and liquids pass through allegedly contaminated drain pipes,
tunnels, conduits and cable ducts, but there is no substantive
evidence to support that claim. (Webber Aff. at 5.) He further
claims that a recently discovered underground well has been
discharging PCBs into the water. (Pl. Cert. & Summ. Doc. Evid.,
Ex. 9.) However, Mancuso submits no credible evidence of the
existence of such a well, and defendant categorically denies it.
(Skorobogatov Reply Cert. ¶ 5.) Indeed, after Mancuso asserted
the existence of the well, defendant excavated the suspected
area and found no remains or other evidence of a well. (Id.)
The soil samples on which Mancuso relies were taken in the years
1995, 1996, and 1998 from areas adjacent to the substation. (Pl.
Cert. & Summ. Doc. Evid., Exs. 10, 12, 19, 24, 26.) The level of
PCBs in these samples was remarkably low. Of
the 95 samples taken of the mud flat sediment and various drain
pipes, 48 had PCB levels less than 1 ppm, and only 4 had levels
greater than 10 ppm. (Id., Ex 19.) Furthermore, it appears
that the samples were taken prior to the latest cleanup in that
area. (Skorobogatov Reply Cert. ¶ 4.)
Plaintiffs have also submitted an affidavit of Dr. Webber who
avers that "[i]t can be stated with reasonable scientific
certainty that PCB migration from the site into Echo Bay
occurred in the past . . . and will continue to do so as long as
there are sources of PCBs on the site." (Webber Aff. at 6.)
However, that conclusory and non-quantitative opinion can only
be considered as conjecture because Dr. Webber cites no recent
evidence of PCB contamination of the Bay.
Plaintiffs' hypothesis that PCBs are being discharged into the
Bay as water passes through contaminated pipes is based in part
on the fact that in 1998 defendant began filtering the water
"with an oil/water separator, passed through two dual-cell bag
filters and then polished by an activated carbon filter." (Pl.
Cert. & Summ. Doc. Evid., Exs. 11, 20.) Mancuso claims that this
supports his theory that prior to this filtering, defendant was
discharging contaminated water into the Bay. (Pl. Mem. Opp. Mot.
Summ. J. at 13.; Pl. Cert. & Summ. Doc. Evid., Exs. 20, 30.)
However, the evidence is directly contradicted by a letter
written by defendant in 1995, stating that 100,000 gallons of
water had to be transferred from the basement of the substation
into Echo Bay and that, in two samples taken, no PCBs were
detected. (Pl. Cert. & Summ. Doc. Evid., Ex. 30.)
In further support of this claim, Mancuso submits the analysis
of a sample extracted from a water drain in the vicinity of the
old north wall of the substation showing a PCB level of 23 ppm
which he claims exceeds the acceptable level by 80,000%. (Id.,
Ex. 8.) However, this drain was subsequently removed and the
surrounding soil was tested, showing no contamination.
(Skorobogatov Reply Cert. ¶ 3.) Defendant's position is
bolstered by the fact that of the 37 samples taken, only two
exceeded the cleanup criteria for the 0-2 foot depth interval.
(Pl. Cert. & Summ. Doc. Evid., Ex. 8.)
Finally, Mancuso submits a letter written in 1997, from the
New York District Corps of Engineers who had received a request
for the Department of the Army to remove PCBs in excess of 5 ppm
in Echo Bay. It discussed a permit to be issued in connection
with vacuum excavation during low tide of an area 17 feet wide
by 23 feet long by 1 foot deep. (Id., Ex. 21.) However, it
does not state by whom the request was made and Mancuso does not
disclose any basis for believing that the PCB level was actually
above 5 ppm. Plaintiff does not state whether the removal was
actually accomplished. But if it was, it presumably occurred
more than 3 years ago.
In sum, whether or not defendant's efforts to clean up the
substation and adjacent areas were reluctant and dilatory, there
is no evidence to support the claim that the Bay is presently
contaminated. (Pl. Mem. Opp. Summ. J. at 13-14; Pl. Cert. &
Summ. Doc. Evid., Exs. 22, 29, 31, 33-35, 37.) Indeed, one
exhibit submitted by Mancuso flatly contradicts that claim. In a
letter written by the DEC to Mancuso in 1995 it states:
The 3 ppb in surface waters of Echo Bay that you
refer to was found in the 1984 sampling. The Bay
water was sampled again during the 1992 Phase II
investigation, buit [sic] no PCBs were detected. As
you know, the Phase II investigation was conducted to
determine if prior site clean up was sufficient and
whether any PCBs were being released from the site.
(Pl. Cert. & Summ. Doc. Evid., Ex. 28.) We therefore conclude
that Mancuso can show no substantial redressable injury and that
plaintiffs' claim under the CWA is moot. There is no reasonable
expectation of any future violation and no injury which
could be redressed except for the de minimis alleged past
offense to Mancuso's aesthetic sensibility.
As this Court has previously stated, it is acutely sympathetic
with a man who, in admirable pursuit of the American Dream of
being his own boss, buys a marina and toils valiantly to build a
profitable business, only to have his dream turned into a
nightmare by noxious and toxic discharges into his boat basin
from an adjoining oil storage facility, a highway storm drain
illegally tapped for raw sewage disposal, and by an adjoining
power substation on which a fire six years earlier had caused
spillage of transformer oil containing PCBs, which are
recognized carcinogens. But the Mancusos' most promising bid for
relief from that catastrophic injury, their action against the
Thruway Authority, resulted in a verdict for the defendant,
presumably because the jury found that the Thruway Authority was
not responsible for the unauthorized and perhaps unknown use of
its drain by others for the discharge of sewage and other
Thus the Mancusos' only remaining hope for compensation is
this action against the owner of the substation. But their
claims for both personal injury and property damage have been
dismissed and the dismissal of those claims has been affirmed on
appeal. This leaves only Mancuso's citizen-suit claim under the
CWA. But more than a decade before this action was filed,
defendant had abandoned the substation property and discontinued
all operations at the site which could have resulted in further
pollution of Echo Bay. Just the contrary, under compulsion from
the State DEC, and under their supervision, defendant had
already commenced an extensive and expensive cleanup of the area
designed to remove any remaining PCBs which could create a
hazard to humans or wildlife. That cleanup continued
sporadically for many years until the DEC finally gave the area
a clean bill of health.
These remedial actions were neither undertaken nor pursued to
a satisfactory completion in response to plaintiffs' CWA claim.
That claim thus has served no beneficial public purpose. Nor can
it do so in the future. Defendant's cleanup of the area has been
carried to the practical maximum. No conceivable order that this
Court could enter would improve the environment, which is the
underlying purpose of the CWA.
If the action went to trial, even if all of plaintiffs'
evidence were believed, the monetary judgment which might
reasonably be awarded to compensate a person who lives a
two-hour drive away from Echo Bay for the alleged offense to his
aesthetic senses during an occasional drive past the site would
be nominal at best. The only practical purpose of the trial
would thus be to obtain an award of attorneys fees. This is not
a proper use of the CWA or of the limited facilities of the
Defendant's motion for summary judgment is granted.
Plaintiffs' CWA claim is dismissed with prejudice.