The opinion of the court was delivered by: DAVID HURD, District Judge
MEMORANDUM-DECISION and ORDER
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
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
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
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 ...