United States District Court, N.D. New York
September 29, 2004.
JOHN LAMBRINOS; and NORMAN LANDRY, Plaintiffs,
EXXON MOBIL CORPORATION; and DONALD GAGNIER, Defendants.
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 undisputed facts establish
her right to judgment as a matter of law." Rodriguez v. City of
New York, 72 F.3d 1051, 1060-61 (2d Cir. 1995).
B. Resource Conservation and Recovery Act Claim
"The RCRA is a comprehensive environmental statute that governs
the treatment, storage, and disposal of solid and hazardous
waste." Meghrig v. KFC Western, Inc., 516 U.S. 479, 483,
116 S.Ct. 1251, 1254, 134 L.Ed. 2d 121, 126 (1996) (citing Chicago
v. Environmental Defense Fund, 511 U.S. 328, 331-32,
114 S.Ct. 1588, 1589-90 (1994)). Its purpose is to minimize the present and
future threat to human health and the environment, not effectuate
the clean-up of toxic waste sites or allocate those costs.
42 U.S.C. § 6902(b); See Meghrig, 516 U.S. at 483,
116 S.Ct. at 1254. The RCRA provides for citizen suits to obtain a "mandatory
injunction, i.e., one that orders a responsible party to `take
action' by attending to the cleanup and proper disposal of toxic
waste, or a prohibitory injunction, i.e., one that `restrains' a
responsible party from further violating RCRA." Id. at 484,
116 S.Ct. at 1255.
1. Plaintiffs' Motion for Partial Summary Judgment
Plaintiffs moved for summary judgment on defendants' liability
under the RCRA and would leave for trial the issues of proper
environmental remediation and who pays for it in what
proportions. Under the RCRA's citizen suit provision plaintiffs
must ultimately demonstrate that (1) the defendant was or is a
generator or transporter of solid or hazardous waste or owner or operator of solid or hazardous waste treatment,
storage or disposal facility; (2) the defendant has contributed
or is contributing to handling, storage, treatment,
transportation, or disposal of solid or hazardous waste, as
defined by RCRA; and (3) that solid or hazardous waste in
question may pose imminent and substantial endangerment to health
or environment. Solid Waste Disposal Act, § 7002(a)(1)(B), as
amended, 42 U.S.C.A. § 6972(a)(1)(B); Christie-Spencer Corp. v.
Hausman Realty Co., Inc., 118 F. Supp.2d 408, 419 (S.D.N.Y.
2000) (citing Prisco v. A.& D. Carting Corp., 168 F.3d 593, 608
(2d Cir. 1999)).
Plaintiffs have not met their burden in proving an undisputed
imminent and substantial endangerment to health or the
environment. It is true that case law provides plaintiffs with a
broad standard for proving this third prong at trial. See Kara
Holding Corp. v. Getty Petroleum Mktg., Inc., 67 F.Supp.2d 302,
310 (S.D.N.Y. 1999). ("The operative word in section
6972(a)(1)(B) is `may.'"). To prevail under RCRA, plaintiffs
"need not establish `an incontrovertible imminent and substantial
harm to health and the environment.'" Christie-Spencer,
118 F.Supp. at 419. (quoting Orange Env't, Inc. v. County of
Orange, 860 F.Supp. 1003, 1029 (S.D.N.Y. 1994)). "Furthermore,
`imminency' does not necessarily mean `immediately.' The Supreme
Court has said that RCRA `implies that there must be a threat
which is present now, although the impact of the threat may not
be felt until later.'" Id. (quoting Meghrig, 516 U.S. at 484,
116 S.Ct. at 1255).
To defeat plaintiffs' motion for summary judgment defendants
need only demonstrate that there is sufficient evidence that a
reasonable jury could find in their favor. Anderson,
477 U.S. at 248; R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir.
1997). Defendants have provided expert testimony to the effect
that while contamination has occurred, the risk posed does not
rise to the level of "imminent and substantial." As noted above, their expert asserts that there is no pathway for
contaminate exposure to place humans at risk; groundwater run-off
contamination is statistically remote; natural attenuation is
occurring; and Lake Champlain is not at risk. Resolving the
conflicting expert testimony concerning the environmental
consequences of the contamination requires the type of
credibility assessment and risk weighing of a fact-finder; and
thus summary judgment to plaintiff must be denied. See Hudson
Riverkeeper Fund, Inc. v. Atlantic Richfield Co., 138 F. Supp.2d 482,
488 (S.D.N.Y. 2001) (listing RCRA decisions denying summary
judgment in the face of conflicting expert testimony).
2. Defendants' Motions for Summary Judgment
Defendants have provided three possible basis for disposing of
plaintiffs' RCRA claim: (1) the relief sought is not available
under the RCRA; (2) defendants have provided undisputable
evidence that there is no imminent and substantial threat to the
environment; and (3) the claim for injunctive relief is precluded
by actions taken by the NYSDEC. Each argument will be addressed,
but none suffice to support granting summary judgment.
a. RCRA's Equitable Relief
Defendants express concern that damages will awarded on the
plaintiffs' RCRA claim as pleaded in the complaint. Paragraph 39
of the complaint lists damages sought on the RCRA claim that
"compensate them [for] all present and future damages to their
respective businesses." It is true that such damages would be
improper on an RCRA claim. See Meghrig, 516 U.S. at 484,
116 S.Ct. at 1254.; Commerce Holding Co. Inc. v. Buckstone,
749 F.Supp. 441, 445 (E.D.N.Y. 1990). However, the improper inclusion
of unavailable damages in pleading is not fatal to the RCRA claim
as a whole. The appropriate injunctive relief was pleaded. Paragraph 39 of
the complaint also includes a plea for "(b) injunctive relief
enjoining and prohibiting the defendants from allowing the
contamination to continue at the plaintiffs's properties, the
Mobil station and surrounding areas; [and] (c) injunctive relief
requiring the defendants to clean-up, remediate, purify, cleanse
and/or purge the contamination from the Mobil Station, plaintiff'
properties and surrounding areas." The excavation and removal of
soil alone or in combination with alternative remediation
techniques, sought by plaintiffs falls well within the scope of
what the district court may grant under the broad authority
conferred under the RCRA. See 42 U.S. § 6972(a)1(b); Kara,
67 F.Supp.2d at 310.("The language of this section of the RCRA is
expansive, and is "`intended to confer upon the courts the
authority to grant affirmative equitable relief to the extent
necessary to eliminate any risk posed by toxic wastes.'" Dague,
935 F.2d at 1355 (quoting United States v. Price, 688 F.2d 204,
213 (3d Cir. 1982))).
In addition, in paragraph 56 of the complaint, plaintiff seeks
the business damages at issue above under the § 181 N.Y. Nav Law
claim. This state law claim is properly asserted under the
principles of supplemental jurisdiction, 28 U.S.C. § 1367, and
N.Y. Nav. Law allows successful claimants awards of "all direct
and indirect damages." N.Y. Nav. Law § 181(1) (McKinney 1999).
The pleading irregularity, especially considering that
appropriate relief is otherwise properly pleaded, is not a basis
on which to grant summary judgment and dismiss the RCRA claim.
b. Imminent and Substantial Endangerment
Defendants also moved for summary judgment on the grounds that
there are no disputed facts as to the risk posed by the
contamination. They claim it does not constitute an imminent and substantial threat to public health or the
environment. As noted above in considering plaintiffs' motion for
partial summary judgment on the issue of defendants' liability
under the RCRA, the record contains conflicting expert testimony
concerning the risks posed by the contamination
Plaintiffs argue that without further testing it remains
disputed just how far contaminants can migrate down gradient or
overland to contaminate wetlands, utility corridors or surface
waters; and that there are pathways for human exposure to the
contaminants by way of run-off waters. The fact that NYDEC has
invested substantial resources in an investigation and does plan
to remediate, albeit at some unknown date, would itself allow a
fact finder the reasonable inference of imminent and substantial
Thus, genuine issues of material fact remain to foreclose a
finding of summary judgment for the defendant. See Finley v.
Giacobbe, 79 F.3d 1285, 1291 (2d Cir. 1996) ("If, as to the
issue on which summary judgment is sought, there is any evidence
in the record from which a reasonable inference could be drawn in
favor of the opposing party, summary judgment is improper.")
c. Preclusive Effect of NYDEC Actions
Defendants assert that the NYDEC's involvement makes any RCRA
injunction to effect the proper handling of the site unnecessary.
Congress provided for what type of state enforcement activity
should preclude citizen suits in the RCRA. See § 6972 (a)(1).
These enforcement actions were addressed in Kara. Kara,
67 F.Supp. 2d. at 307. After reviewing case law, the court concluded
that state administrative enforcement actions do not constitute
actions under § 6972(b)(2)(c) to preclude suits under the RCRA,
only actions in court will suffice, and then it noted case law addressing the question of
whether the state's action had to have been brought pursuant to
the RCRA. These questions are beyond the instant case because
there is no indication in the record that NYDEC has commenced any
action of either sort. The NYDEC activity in the instant case
does not fall within the ambit of the state activity that
Congress intended to preclude citizen suits.
Defendants argue for dismissal on grounds beyond these
Congressionally provided limitations. They assert that the claim
should be dismissed because NYDEC has taken control of the
remediation, and therefore injunctive relief is unnecessary. They
cite 87th Street Owners Corp. for this proposition. In that
case, while short on details of the actual remediation process,
the NYDEC had installed and continued to operate a remedial
system at the contaminated site. 87th Street Owners Corp.,
251 F.Supp2d at 1221. The plaintiffs therein were unable to
demonstrate to the court that a RCRA injunction could accomplish
anything more than what the NYDEC was already doing. The court
granted the defendants' summary judgment on the basis that
injunctive relief would not further the purposes of the statute.
In the instant case, the NYDEC has not begun or adopted any
remediation scheme. Here, plaintiffs have provided an entire
Corrective Action Plan for remediating their properties where the
NYDEC has not begun any remediation at all. Unlike 87th Street
Owners Corp, there is ample room for injunctive relief beyond
NYDEC efforts should plaintiffs succeed at proving imminent and
substantial endangerment at trial.
Summary judgment will not be granted on these grounds as the
DEC has not commenced any precluding court action or remediated
to the extent necessary to make the issue of injunctive relief
moot. C. New York Navigation Law Claim
New York Navigation Law § 181(1) provides that "[a]ny person
who has discharged petroleum shall be strictly liable, without
regard to fault, for all cleanup and removal costs and all direct
and indirect damages, no matter by whom sustained." N.Y. Nav. Law
§ 181(1) (McKinney 1999). Section 195 of the act instructs that
the law be liberally construed to effect its purpose: protecting
general health, safety, and welfare of the people of this state.
N.Y. Nav. Law § 195 (McKinney 1999). Plaintiffs, as injured
parties, bring suit directly against defendants, alleged
dischargers of petroleum, for the costs of cleanup and removal,
and direct and indirect damages. N.Y. Nav. Law § 181(5) (McKinney
N.Y. Navigation Law § 172 (8) defines discharge as "any
intentional or unintentional action or omission resulting in the
releasing, spilling . . . or dumping of petroleum into the waters
of the state or onto lands from which it might flow or drain into
said waters." The rationale for finding that these persons are
within the purview of the statute is that they are in a position
to halt the discharge, to effect an immediate cleanup, or to
prevent the discharge in the first place. State v. Montayne,
199 A.D.2d 674, 675 (N.Y.App. Div. 1993) (citing Matter of
White v. Regan, 171 AD 2d. 197, 201 (N.Y.App. Div. 1991)).
Reading the three provisions cited above together, a finding of
liability requires that plaintiffs demonstrate (1) defendants are
dischargers under the statute; (2) a discharge occurred; and (3)
the discharge contaminated plaintiffs property to support a
finding that they are an injured party. It is not necessary for
this limited finding of liability to quantify the damage or
allocate it between defendants.
The New York Courts of Appeals has assigned discharger status,
and thus liability, to landowners who "can control activities
occurring on its property and have reason to believe petroleum products will be stored there." State of New York v.
Green, 96 N.Y.2d 403, 405 (N.Y. 2001) (holding faultless
landlord liable for clean up costs associated with lessee's
kerosene tank). From 1967 through 1986, ExxonMobil owned the
station and the USTs used by the gas station. ExxonMobil supplied
Gagnier with petroleum products and was responsible for
maintenance, inspection, and replacement of those tanks. From
1986 through 1998 Gagnier both owned and operated the station
while engaged in the business of selling petroleum products. Thus
both defendants qualify as discharges for purposes of § 181 of
N.Y. Nav. Law.
The second two requirements for liability will be addressed
taking the defendants in turn.
As to ExxonMobil, a former employee, Henry Williams, has
testified that two leaks occurred in the early 1970s. One leak
from a UST and the other due to a broken swing joint in the
plumbing system. The repairs were done by contractors hired by
ExxonMobil. Williams testified that one of the leaks totaled
around 3,000 gallons of gasoline. Gas was found pooled at the
base of a utility pole on Lambrino's property. ExxonMobil
compensated Gagnier for the lost gasoline and the Lambrino family
for damage the leak caused to areas of the parking lot where gas
had percolated through. Williams also provided Lambrino with
exhaust fans to ventilate gas fumes from his basement. The record
sufficiently demonstrates the occurrence of the leak and the
migration of the gasoline onto plaintiffs property.
ExxonMobil relies on Hilltop Nyack Corp. v. TRMI,
272 A.D.2d 521 (N.Y, App. Div. 2000) in arguing that plaintiffs have not
sufficiently proved a nexus between ExxonMobil and the
contamination. In Hilltop defendants were granted summary
judgment on the issue of defendants liability after making a
"prima facie showing of entitlement to judgment as a matter of law." Id. at 523. After the showing that there were
no issues of material fact, plaintiff could not raise a triable
issue as to whether a discharge had occurred. Plaintiffs provided
only an expert's "conclusory and speculative allegation." Id.
The case is easily distinguished. Here plaintiffs have provided
unchallenged deposition testimony by a former ExxonMobil employee
with personal knowledge of a 3,000 gallon leak, efforts made by
ExxonMobil to address it, and at least some effect on Lambrino's
Defendant ExxonMobil and plaintiffs have spent considerable
effort briefing and debating the proper scientific conclusion
that can be drawn from presence of lead on plaintiffs'
properties.*fn1 But those questions go to issues of
allocation of damages after a finding of liability. The complex
and hotly disputed fact questions of divisibility of harm and
damages remain for resolving the contribution and indemnification
claims. Defendants efforts are insufficient to raise a triable
issue as to whether a discharge occurred that effected
plaintiffs' properties The nature and scope of the effect is in
question; but as just stated, that is a matter of damages to be
argued before a fact finder deciding that distinctly separate
part of the claim.
As to Gagnier, he owned and operated the station from 1986
through 1998. The record contains evidence of three petroleum
spills during this time period. There is also extensive
documentation demonstrating MBTE contamination from discharged
unleaded gasoline. (MBTE is an additive used in unleaded gasoline.)
Furthermore, there is evidence of a plume of contamination
flowing from the area of the former septic tank over which
Gagnier exercised control. As with defendant ExxonMobil, while
there are disputed issues of fact concerning damages, plaintiffs
have demonstrated that defendant discharged petroleum products
that have traveled on to their properties.
Plaintiffs are entitled to partial summary judgment against
both defendants under N.Y. Nav. Law § 181(1). The appropriate
remedy and the amount and allocation of damages under state law
remain for trial.
D. Defendants' Motion for Summary Judgment on Punitive
Defendants also moved for summary judgment to dismiss
plaintiffs' claim for punitive damages. Under New York law
"[p]unitive damages may be awarded if the defendant's conduct was
determined to be `wanton and reckless' [or] . . . `done in such a
manner and under such circumstances as to show heedlessness of or
utter disregard of the effect upon the rights and safety of
others. . . .'" U.S. v. Hooker Chemicals & Plastics Corp.,
850 F.Supp. 993, 1001 (W.D.N.Y. 1994) (citing Simpson v. Pittsburgh
Corning Corp., 901 F. 2d 277, 282 (2d Cir. 1990)).
Defendants cite Hooker Chemicals and point out that to be
successful in demonstrating wanton and reckless conduct
plaintiffs must prove that defendants acted contrary to the
accepted and applicable commercial standards of conduct at that
time. Defendant argues that plaintiffs' failure to plead the
standards and allege particular violations is fatal to their
claim, but that is not the requirement for defendants' summary
judgment motion. "The party seeking summary judgment bears the
burden of establishing that no genuine issue of material fact
exists, and that the undisputed facts establish her right to judgment as a matter of law." Rodriguez v. City of New York,
72 F.3d at 1060-61. To dispose of the punitive damages claim,
defendants bear the burden of providing undisputed facts
demonstrating proper conduct. The record does not reveal any such
While significant evidentiary hurdles remain for success on the
merits of plaintiffs' claim, they have alleged sufficient facts
to create a genuine issue of material fact to avoid a finding of
summary judgment for the defendant. See Finley v. Giacobbe,
79 F.3d at 1291. Construing the facts in a light most favorable
to the plaintiffs, a reasonable fact finder could infer that both
defendants demonstrated utter disregard for the safety of others.
Plaintiffs have provided evidence of ExxonMobil's knowledge of
at least one significant spill during its tenure as owner and the
party responsible for maintaining the UST system. Deposition
testimony provides that ExxonMobil failed to take any steps to
remediate the effected land (Docket No. 64, Williams Dep. &
Aff.) Gagnier owned and operated the subject property through
three documented spills and the illegal depositing of
contaminants into the septic tank. A reasonable fact finder could
infer that knowledge of such spills, not followed by any
investigation or remediation efforts, constitutes heedlessness of
or utter disregard for the effect upon the safety of others.
The plaintiffs' common law punitive damages claim will not be
dismissed at this point.
Questions of fact remain as to whether the contamination at
issue poses an imminent and substantial endangerment to public
health and the environment such that all parties motions for
summary judgment on the RCRA claim must be denied. However,
plaintiffs have demonstrated defendants' liability for
discharging petroleum products under N.Y. Nav. Law § 181. Finally, defendants did not provide material
facts to demonstrate that plaintiffs' punitive damages claim was
The issues at trial will be: (1) did either or both defendants
violate RCRA; (2) if so, the appropriate injunctive relief; and
(3) damages and other remedies under state law.
Accordingly, it is
1. Plaintiffs' motion for partial summary judgment as to
ExxonMobil's liability on the RCRA claim is DENIED;
2. Plaintiffs' motion for partial summary judgment as to
Gagnier's liability on the RCRA claim is DENIED;
3. Plaintiffs' motion for partial summary judgment on the issue
of defendant Exxon Mobil's liability under § 181 N.Y. Nav. Law is
4. Plaintiffs' motion for partial summary judgment on the issue
of defendant Gagnier's liability under § 181 NY Nav. Law is
5. Defendants' motion for summary judgment on plaintiffs' RCRA
claim is DENIED; and
6. Defendants' motion for summary judgment on plaintiffs' claim
for punitive damages is DENIED.
IT IS SO ORDERED.