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September 29, 2004.


The opinion of the court was delivered by: DAVID HURD, District Judge



  John Lambrinos ("Lambrinos") owner of Gus' Red Hots, Inc, and Norman Landry ("Landry"), owner of The Rip Van Winkle Motel, brought suit against defendants Exxon Mobil Corporation ("ExxonMobil") and Donald Gagnier ("Gagnier"). Plaintiffs filed pursuant to the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6901, et. seq., adding supplemental state law claims for trespass, nuisance, negligence, punitive damages, and a violation of § 181 of New York State's Navigation Law ("N.Y. Nav. Law").

  Pursuant to Fed.R. Civ. P. 56, plaintiffs filed a motion for partial summary judgment on the issue of defendants' liability under the RCRA and N.Y. Nav. Law. Defendants have moved for summary judgment on the RCRA claim and on the issue of punitive damages. Oral argument was heard in Albany, New York on October 24, 2004. Decision was reserved.


  The ultimate allegation is that petroleum products, and perhaps other hazardous materials, discharged by defendants have migrated onto plaintiffs' properties and contaminated both the groundwater and soil creating continuing environmental and health risks.

  Lambrino's restaurant is located at 3 Cumberland Head Road in Plattsburg, New York. It has been owned and managed by plaintiff's family since 1951. Lambrino acquired part ownership in 1974, and full ownership in 1987. Landry has operated the adjacent hotel for forty years through various expansions. Neighboring properties include, a public beach, a park, and Lake Champlain.

  Defendants are the current and previous owners of the property ("subject property" or "the station") adjacent to Lambrino's at the intersection of Cumberland Head Road and State Rt. 9. In 1967, ExxonMobil purchased the subject property on which there was an existing gas station. ExxonMobil redeveloped the property and subsequently leased it to Rene Gagnier, ("Mr. Gagnier") defendant Gagnier's father, who also operated a gas station. ExxonMobil supplied Mr. Gagnier with the requisite petroleum products and was responsible for the maintenance of the underground storage tank ("UST") system. (Docket No. 47, P58; Docket No. 64, P20) During ExxonMobil's tenure of ownership in the early 1970s there was at least one reported discharge of gasoline. An estimated 3,000 gallons leaked from a UST. ExxonMobil compensated Mr. Gagnier for the lost fuel. According to deposition testimony, Plaintiff Lambrino's family, as owners of Gus' Restaurant at that time, were paid for damage the leak caused to their parking lot. ExxonMobil did not, however, investigate or remediate the effected land (Docket. No. 64, Docket No. 47 Ex. M)

  Defendant Gagnier purchased the subject property from ExxonMobil in late 1986 and continued to run a gas station. He switched gasoline suppliers in 1987. ExxonMobil had no further contact with the subject property. New York State Department of Environmental Conservation ("NYDEC") Spill Reports note three spills at the station during Gagnier's tenure of ownership and operation: on August 15, 1991, May 7, 1996; and October 10, 1997. (Docket No. 73, PP 28-39)

  In 1997, Gagnier attempted to sell the station. A consultant for the prospective buyer ran soil tests and then brought the results to the attention of the NYDEC which became, and remains to date, actively involved in the situation. In 1998, Gagnier effected a change of business and proceeded to use the property to run an automotive repair shop. He contracted for the removal of two 10,000 gallon USTs, one 4,000 gallon UST and one 500 gallon tank used for waste oil. NYDEC was present for the removal wherein both soil and water contamination were observable. (Docket No. 73, PP 92-93) NYDEC advised him to conduct an environmental assessment. He declined, and NYDEC hired contractors to do the assessment and remove a 4,000 gallon underground septic tank. The septic tank was "severely corroded, very thin, and pitted and perforated throughout." (Docket No. 73, P 55) NYDEC reported that it contained water, sewage, waste oil, and antifreeze.

  The assessments conducted by NYDEC contractors identify two plumes of contamination running from the station onto the plaintiffs' properties, one from the area where the UST system was located, and one from the area of the removed septic tank. (Docket No. 61 Ex. D, P5) Both the soil and groundwater contain volatile organic compounds from the discharge of petroleum products. (Docket No. 47 Ex. N, P7) Plaintiffs' properties are down gradient of the station. One of the contamination plumes travels along the ground water path, which is effected by the underground sewage system that runs the length of Lambrino's property.

  NYDEC managed the investigation, continued assessment of the problem, and outlined potential remediation techniques; but there is no indication that it has decided upon or begun any remediation. (Docket No. 72, P14)

  The test results on various samples collected on site have been submitted with conflicting expert analysis as to the exact source, extent and timing of the contamination. As logic requires, seeing the problem differently, the parties offer differing views on the risk the contaminants pose and the remediation required.

  Plaintiffs assert that "emergence of contaminated groundwater to the ground surface may cause polluted runoff and overland migration of contamination." (Docket No. 63, ¶ 8) Plaintiffs' expert, Alan Liptak, Geologist and Environmental Program Manager at Griffin International, suggests that Lake Champlain, only 2,000 feet away, may be at risk from the polluted run-off. He notes that no testing has been done to determine how far contaminants have traveled down gradient towards the lake. Id. at ¶ 5. Liptak adds that there is the possibility of human exposure to the contaminants in the business parking lots when such water surfaces. Id. at ¶ 3. He also points to ground water tests that reveal increases in ground water contamination, indicating that contaminated soils continue to impact ground water, which continues to fall below NYDEC standards. Id. at ¶ 11.

  Defendants' expert Peter G. Robelen, President and Senior Geologist at GeoServices, Ltd., asserts that there is no pathway for contaminate exposure to place humans at risk; ground water run-off contamination is statistically remote; natural attenuation of the contaminants is occurring; and that Lake Champlain is not at risk due to further underground migration. (Docket No. 61 Ex. D) He adds that there have been no vapor impacts on the plaintiffs' properties, and there is no danger to humans through ingestion as the area is supplied by municipal water. Id. at 5.


  A. Summary Judgment Standard

  Summary judgment may only be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R. Civ. P. 56(b). The court will not try issues of fact on a motion for summary judgment, but, rather, will determine "whether the evidence presents a sufficient disagreement to require submission to a [factfinder] or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2515 (1986).

  "The court may not weigh the evidence or make credibility assessments, and is required to view the evidence in the light most favorable to the party opposing summary judgment and to draw all reasonable inferences in favor of that party." 87th St. Owners Corp. v. Carnegie Hill-87th St. Corp., 251 F. Supp.2d 1215, 1217 (S.D.N.Y. 2002). See Weyant v.Okst, 101 F.3d 845, 854 (2d Cir. 1996). "The party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists and that the ...

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