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Chart v. Town of Parma

United States District Court, W.D. New York

September 30, 2014

JOHN CHART, Plaintiff,
v.
TOWN OF PARMA, Defendant.

DECISION & ORDER

MARIAN W. PAYSON, Magistrate Judge.

PRELIMINARY STATEMENT

Plaintiff John Chart ("Chart") has sued defendant Town of Parma (the "Town") over alleged contamination of the Town Park (the "Park") with topsoil containing unsafe levels of arsenic, lead, DDT, DDD and DDE. (Docket # 12). Chart has sued under the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6972(a)(1)(B).[1] Chart seeks an injunction requiring the Town to remediate the contamination, as well as response costs, attorneys' fees and other expenses.

According to the Complaint, in 2003 the Town purchased 1086 cubic yards of topsoil from Crowley Development Corporation ("Crowley") to make improvements to the Park. ( Id. at ¶ 21). The topsoil that Crowley sold to the Town originated in a former apple orchard. ( Id. at ¶¶ 19, 21). Pesticides including arsenic, lead, DDT, DDE and DDD were allegedly used in the orchard, resulting in contamination of the soil. ( Id. at ¶ 20). The Town used the soil it purchased from Crowley to backfill the Park's football, baseball and other multi-use fields. ( Id. at ¶¶ 18-24).

Currently pending before the Court is the Town's motion to preclude the testimony of Chart's expert James D. Okun ("Okun"), LSP, and for summary judgment. (Docket # 65). Chart opposed the motion and filed an affidavit sworn by Okun (the "Okun Affidavit"), a supplemental report authored by Okun (the "Second Okun Report") and an affidavit sworn by Chart's other expert David D. Day ("Day") (the "Day Affidavit"). (Docket ## 69-25, 69-40, 69-41). Also pending before the Court is the Town's motion to strike the Okun and Day Affidavits and the Second Okun Report. (Docket # 70).

I. The Town's Motions to Preclude Okun and to Strike the Second Okun Report and Okun's and Day's Affidavits

A. The Expert Reports and Affidavits

1. Okun's First Report and Testimony

Okun is an environmental chemist and toxicologist. (Docket # 65-10 at 2). He received an undergraduate degree in chemistry from Massachusetts Institute of Technology in 1975, and three years later he obtained his master's degree in toxicology from the same institution. ( Id. at 14). Okun has worked in the environmental field for the past thirty years performing assessments of chemicals in the environment and their potential impact on human health. ( Id. at 2, 14). According to his report, Okun was retained by Chart to provide an analysis and opinion "regarding the potential for health and environmental risks arising from arsenic concentrations" at the Park. ( Id. at 2). To do this, Okun reviewed the history of the alleged contamination of the topsoil and its placement at the Park on the football field and other locations. ( Id. at ¶¶ A-C). Okun's report is dated April 30, 2013. ( Id. at 13).

Okun reviewed the results of soil sampling performed on the soil of the Park's football field. ( Id. at ¶¶ E-G). According to Okun, those results indicated that arsenic levels in the football field were five to ten times greater than the expected background concentration of arsenic of between five to ten parts per million ("ppm"). ( Id. at ¶¶ F-G, M). Okun also visited the Park and photographed the football field. ( Id. at ¶ J and Exhibit ("Ex.") D). According to Okun, most areas of the football field were covered by grass; however, the field contained some spots that were either completely bare or only sparsely covered with grass. ( Id. at ¶ K).

Okun's report explains the adverse health effects associated with arsenic exposure, including an increased risk of cancer. ( Id. at ¶¶ M-W). Okun also identified regulations promulgated by the New York Department of Environmental Conservation ("DEC") applicable to arsenic contamination. ( Id. at ¶¶ X-AA). In addition, Okun identified a recent report authored by the New York State Department of Health ("DOH") that determined that arsenic concentration levels of less than 1.0 ppm were associated with a one in one million cancer risk level.[2] ( Id. at ¶ AA). According to the report, because background levels of arsenic in soil typically exceed 1.0 ppm, the DOH recommends that arsenic remediation goals should be evaluated by reference to the expected background concentration. ( Id. ).

Okun's report next calculated the exposure point concentration for arsenic at the football field. ( Id. at ¶¶ BB-DD). According to Okun, the "exposure point concentration" for a particular site is a "reasonable estimate of the average concentration of a hazardous constituent that a receptor is likely to be exposed to over a number of individual exposure events." ( Id. at 9). Okun used a 95% upper confidence limit to calculate the exposure point concentration. ( Id. at ¶ CC). Okun calculated the exposure point concentration using the results from the soil sampling at the Park. ( Id. at ¶ DD). According to Okun, he calculated that the exposure point concentration was approximately 53.87 mg/kg of arsenic in the soil at the football field. ( Id. ).

Next, Okun attempted to identify the "receptors, " or the people, who were most likely to be exposed to the soil at the Park. ( Id. at ¶¶ EE-GG). According to Okun, likely receptors included individuals playing on the field, spectators and anyone else using the field. ( Id. at ¶ EE). In addition, Okun opined that because arsenic does not degrade over time, potential future uses of the football field should be considered, including the field's potential future use for residential or school grounds purposes. ( Id. at ¶ FF).

Okun also evaluated the likely dose range associated with arsenic ingestion. ( Id. at ¶ HH). According to the report, Okun calculated that the dose range from oral ingestion was 4.885 to 10.77 micrograms of arsenic per day. ( Id. at ¶ II). In his report, Okun indicated that the lower number represented the likely daily dose of arsenic for a child using the football field as a football field. ( Id. ). The higher number represented the likely daily dose if the field were used as residential property. ( Id. ).

Next, Okun calculated the non-carcinogenic health risk resulting from exposure to soil in the football field. ( Id. at ¶ JJ). To do this, Okun identified that reference dose for arsenic as 3x10-4 mg/kg per day. ( Id. ). For a child who weighs 20 kg, Okun opined, any dose in excess of 6 micrograms per day would likely pose a significant non-carcinogenic risk. ( Id. ).

Okun also calculated the carcinogenic health risk resulting from exposure to the arsenic levels in the soil at the football field. ( Id. at ¶ KK). According to Okun, the cancer risk is calculated using the cancer slope factor promulgated by the United States Environmental Protection Agency ("EPA"). ( Id. ). For arsenic, the cancer risk factor is 1.5 mg/kg per day. ( Id. ). According to Okun, using this number, an excess lifetime cancer risk of 1 in 10, 000 would be associated with ingestion of approximately 4 micrograms of arsenic per day. ( Id. ). Having calculated both the carcinogenic and non-carcinogenic risks, Okun opined that the concentrations of arsenic in the soil at the Park exceed the safe levels for both risks. ( Id. at ¶ LL).

Okun concluded that under New York regulations the arsenic concentrations in the football field at the Park would be considered a hazardous substance and would require remediation with an objective of reducing the concentrations to 13ppm. ( Id. at ¶¶ MM & NN). According to Okun, New York regulations provide that 13ppm is the appropriate risk-based cleanup objective to protect ecological resources from arsenic concentrations. ( Id. at ¶ PP). Thus, Okun concluded that the arsenic concentrations at the Park, which are approximately four times greater than the objective, present a potential hazard to the environment. ( Id. at ¶¶ NN & SS). He further concluded that the arsenic concentrations were likely to cause physical injury or illness to humans. ( Id. at ¶ RR). Okun opined that the arsenic contaminated topsoil at the Park poses an imminent and substantial threat to human health or the environment and that remediation was "urgently necessary." ( Id. at ¶ UU).

During his deposition, Okun testified that he generally employs the same methodology whenever performing a quantitative risk assessment analysis. (Docket # 65-11 at 7). First, he attempts to determine the nature and extent of contamination at the relevant site through sampling and testing of the soil. ( Id. ). Next, he performs an exposure assessment consisting of two steps. ( Id. ). The first step involves calculating the exposure point concentration, which is the amount of contaminant to which potential receptors will be exposed. ( Id. ).

Next, he attempts to determine how potential receptors will be exposed to the contaminant. ( Id. at 8). According to Okun, this can be done in two ways. ( Id. ). The first way is to conduct a baseline risk assessment that assumes that the site in question is not under any particular use restrictions. ( Id. ). Thus, the baseline risk assessment calculates the maximum reasonable exposure, assuming that the site is used as a residential property. ( Id. ). Okun testified that in addition to conducting a baseline risk assessment that assumes no site-specific limiting assumptions, a risk assessment may also account for site-specific limitations actually implemented at a site. ( Id. ). To do this, instead of using a residential-exposure scenario, a particular site may be assessed with reference to the actual use by the owner and account for those use limitations when calculating the exposure risk. ( Id. at 8-9).

Okun testified that he also conducts a toxicity assessment, which quantifies the toxic effects of the contaminants at issue. ( Id. at 8). According to Okun, he attempts to quantify both non-carcinogenic and carcinogenic risks. ( Id. ). After conducting an exposure assessment and a toxicity assessment, the results of both are used to derive a risk characterization, which determines whether there is a significant risk resulting from the exposures. ( Id. ). According to Okun, for non-carcinogenic effects, a hazard index is used to assess the risk. ( Id. ). Okun testified that a non-carcinogenic risk in excess of one is considered to be a significant risk. ( Id. ). With respect to carcinogenic risks, according to Okun, risks exceeding one in one million (1×10-6) are considered to be "of concern" in New York State. ( Id. ).

In this case, according to Okun, he performed a quantitative risk assessment. ( Id. at 9). First, he developed the exposure point concentration for arsenic in the soil at the Park, which he calculated to be 53.8 mg/kg. ( Id. ). Next, he identified potential receptors, including children and spectators at the football field. ( Id. at 10). According to Okun, he performed a baseline risk assessment that attempted to determine the risks posed by potential exposure through oral ingestion of the soil contained at the Park. ( Id. at 9-10). Okun testified that his assessment was the most conservative scenario because it assumed that the Park would be used as a residential property in the future and that potential receptors would be exposed 350 days each year for thirty years. ( Id. at 11, 22).

According to Okun, he calculated the likely arsenic dose range for potential receptors to be between 4.885[3] and 10.77 micrograms of arsenic per day. ( Id. at 12). Okun testified that the dose range calculation of 4.885 micrograms represents the daily dose a child likely would ingest if he used the football field in accordance with its current use as a football field. ( Id. at 17-18). The higher daily dose calculation of 10.77 micrograms represents the expected daily dose a child would ingest if the football field were used as residential property.[4] ( Id. ). Okun testified that in making this calculation he used the EPA Exposure Factors Handbook, which provided expected ingestion rates of 100 milligrams per day for children using the field for recreational purposes and 200 milligrams per day for children using the field for residential purposes. ( Id. ).

Next, Okun identified the reference dose for arsenic provided in the EPA IRIS data. ( Id. at 13). According to Okun, the reference dose is 3×10-4 mg/kg per day. ( Id. ). Okun testified that this dose represents a threshold level of exposure above which the EPA would expect a higher probability of an adverse non-carcinogenic health risk effect. ( Id. ). According to Okun, for children, the dose reference for arsenic is 6×10-3, the equivalent of 6 micrograms per day. ( Id. ). Okun testified that under his calculations, the expected exposure to the football field under its current use would not produce an unacceptable non-cancer risk for children. ( Id. at 18).[5]

Okun testified that the cancer slope factor ("CSF") is a parameter that the EPA uses to express the carcinogenic potency of chemicals. ( Id. at 13). According to Okun, he used a CSF of 1.5 mg/kg per day. ( Id. ). Using that CSF, Okun calculated that the amount of arsenic that a child could be exposed to per day that would correspond to a 1 in 10, 000 (1×10-4) risk of cancer is 4 micrograms of arsenic per day.[6] ( Id. at 14). Thus, Okun opined that were the field used as a football field there would be an excess cancer risk greater than 1 in 10, 000 for a child. ( Id. at 18). Okun testified that none of the calculations expressed in his report assessed the cancer or non-cancer risks in adults. ( Id. ). According to Okun, his calculations assumed that a child weighed 20 kilograms; for adults, who weigh more than children, the cancer risk due to exposure to the arsenic in the soil would be less than the risk for children. ( Id. ).

Okun opined that the elevated arsenic concentrations at the Park are likely to cause illness to humans. ( Id. at 22-23). According to Okun, the EPA and other regulatory agencies consider a contaminant to be a risk if expected exposure results in an excess cancer risk greater than 1 in 10, 000 (or 1×10-4). ( Id. ). Okun opined that exposure resulting in an excess cancer risk above that level would pose an unacceptable risk to human health. ( Id. ).

Okun explained that his exposure assessment was a baseline risk assessment that did not incorporate any institutional controls. ( Id. at 23). According to Okun, although the Town had informal institutional controls governing the use of the Park, those controls had not been formalized through a Town ordinance or a deed restriction on the land. ( Id. ). Accordingly, Okun testified, it would be inappropriate to factor those informal controls into his analysis. ( Id. at 23-24, 26-27).

Okun conceded that he did not conduct any assessment of risks posed by exposure to arsenic concentrations at the Park through inhalation or skin absorption. ( Id. at 9). In addition, Okun testified that he had no opinion concerning any other contaminants found in the soil at the Park. ( Id. at 19). Finally, Okun testified that he did not perform any analysis to assess the risk to the environment or wildlife receptors posed by the arsenic concentrations at the Park. ( Id. at 24-25).

2. Okun's Second Report

Okun's second report, dated February 11, 2014 (the "Second Okun Report"), reflected that his retention had been expanded to include an analysis of the potential health and environmental risks arising from "residual pesticides, " in addition to arsenic, in the football field at the Park. (Docket # 69-25 at ¶ 1). The Second Okun Report also indicated that Okun had been asked to review and provide comments on the report authored by the Town's expert, Ollson. ( Id. at ¶ 4). It also listed the materials that Okun relied upon in arriving at his opinions. ( Id. at ¶ 13). In the Second Okun Report, Okun identified thirty-three sources, twelve more than those identified in his original report. ( Compare Docket # 69-25 at ¶ 13 with Docket # 65-10 at ¶ 4). Of the twelve new sources, approximately four post-dated Okun's original report and include deposition testimony and reports authored by the Town's experts. (Docket # 69-25 at ¶ 13 (p)-(s)). In addition, the Second Okun Report attached twelve exhibits (Docket ## 69-26 through 69-37), eight more than his original report. (Docket # 65-10 at 14-19).

In section six, Okun described the acceptable methods used to determine whether contamination requires remedial action. (Docket # 69-25 at ¶¶ 24-36). Although this section included an expanded discussion of the relevant concepts, much of the information contained in this section was included in Okun's original report or was discussed during his deposition testimony. (Docket ## 65-10 at ¶¶ X-AA; 65-11 at 4-6, 8-9, 23-24, 26-27).

The next section of the Second Okun Report described his visual observations of the football field at the Park during an April 23, 2013 visit. (Docket # 69-25 at ¶¶ 37-39). This description was included in his original report, although the new report added that he did not observe any signs to indicate that the field's use was restricted. ( Compare id. with Docket # 65-10 at ¶¶ J-K). Okun testified about this observation during his deposition. (Docket # 65-11 at 23).

In section eight, Okun described the soil samples that were taken from the football field, which form the basis of Okun's analysis. (Docket # 69-25 at ¶¶ 40-42). These are the same samples used in his original report, and Okun again attached two tables reflecting the testing results of the samples, which were attached to his original report. (Docket ## 69-27, 69-28). In addition, Okun attached a new exhibit reflecting the testing results on the soil samples for the presence of lead, arsenic, DDT, DDD and DDE, along with the New York recommended cleanup objectives for these chemicals. (Docket # 69-29). In the following section, Okun opined that levels of arsenic, lead, DDT, DDD and DDE are present in the football field at concentrations in excess New York recommended cleanup objectives. (Docket # 69-25 at ¶¶ 43-49).

Section ten of the Second Okun Report described engineering and land use restrictions that can be used to reduce the likelihood of adverse health or ecological effects from site contamination. ( Id. at ¶¶ 50-54). Okun concluded that the Town uses informal practices to limit exposure to Park soil, rather than institutional or engineering controls. ( Id. at ¶¶ 52-54). Although this information was not contained in Okun's original report, it was discussed during his deposition. (Docket # 65-11 at 23-24, 26-27).

In the next section, Okun outlined the EPA's methodology for assessing site specific human health risks. (Docket # 69-25 at ¶¶ 55-59). In this section, Okun explained that the EPA recommends that site assessments consider both current and future land use and criticized Ollson's analysis for only considering the current use of the Park. ( Id. at ¶ 58). In addition, Okun explained that his original assessment did not consider any institutional controls in accordance with EPA guidance. ( Id. ). Okun criticized Ollson's assessment because Ollson incorporated informal Town practices into his calculations in order to "significantly reduce the calculated human risk associated with use of the field." ( Id. ).

Okun also explained the manner of characterizing the risk at a particular site. ( Id. at ¶ 59). According to Okun, the risk characterization is derived by combining concentration and exposure assessment information to calculate the average daily dose, which is then compared to the reference dose and cancer slope factors in order to derive the potential adverse health effect. ( Id. ). Okun agreed with Ollson that for non-cancer risks, a hazard index greater than 1 indicates a potential significant adverse health effect. ( Id. ). With respect to cancer risks, however, Okun noted that the DEC requires chemical cleanups to reduce cancer risks so that they are less than 1×10-6. ( Id. ). Okun criticized Ollson for selecting 1×10-4 as the acceptable level of cancer risk. ( Id. ).

In section twelve, Okun compared the arsenic concentrations found in the Park to the various cleanup standards for arsenic promulgated by other states. ( Id. at ¶¶ 60-62). According to Okun, the concentration levels of arsenic at the Park exceed the cleanup guidelines set by all thirty-three states that have promulgated cleanup guidelines for arsenic. ( Id. ).

The next several sections reflect Okun's opinions. ( Id. at ¶¶ 70-96). First, Okun opined that the substances of concern include arsenic, lead, DDT, DDE, Endrin, Endrin Aldehyde and Methoxychlor. ( Id. at ¶¶ 70-71). Okun compared the concentration levels of these substances against the DEC's residential and ecological cleanup objectives and opined that arsenic, lead DDT, DDD and DDE[7] are present in the Park soil at concentrations greater than the DEC's objectives. ( Id. at ¶¶ 72-74). According to Okun, the arsenic concentrations exceeded restricted residential cleanup objectives, thus indicating that the arsenic potentially posed a "significant imminent and substantial risk" to human health. ( Id. at ¶ 73). Okun further opined that under standards promulgated by the state of Massachusetts, the arsenic concentrations in the Park would be termed an imminent hazard and would mandate the Park's immediate closure. ( Id. at ¶¶ 75-79). Okun further opined that the levels of arsenic, lead, DDT, DDD and DDE at the Park exceeded the DEC's ecological cleanup objective, thus potentially creating a significant "imminent and substantial risk" to the environment. ( Id. at ¶ 74).

Next, consistent with Ollson and his original report, Okun opined that the exposure point concentration of arsenic in the Park soil is 53.8 mg/kg. ( Id. at ¶ 80). Further, consistent with both Ollson and his original report, Okun opined that the reference dose for arsenic is 3×10-4 mg/kg per day and that the cancer slope factor is 1.5 mg/kg per day. ( Id. at ¶ 84).

Okun's exposure assessment opinion in the Second Report deviated significantly from his previous report. ( Id. at ¶¶ 86-92). According to Okun, his calculations and assumptions are contained in Exhibit K to his second report. ( Id. at ¶ 89). In Exhibit K, Okun calculated the cancer risk and non-cancer risks posed by arsenic levels at the Park through either ingestion or dermal exposure by children and by an individual ranging between one to thirty-one years of age. (Docket # 69-36 at 1-2). In making this calculation, Okun altered several of his previous assumptions, including the ingestion rate, receptor weight, method of absorption, and the number of days of exposure.[8] ( Compare Docket # 69-36 at 1-2 with Docket # 65-11 at 9, 11, 18).

Using these altered assumptions, Okun calculated that the non-carcinogenic risk to a future residential user of the Park is represented by a hazard index of.81, which includes exposures through both oral ingestion and skin absorption. (Docket ## 69-25 at ¶ 93; 69-36 at 3-5). According to Okun, this risk is less than the acceptable risk. (Docket # 69-25 at ¶ 93). In addition, Okun calculated that the carcinogenic risk to a future residential user of the Park is 2.4×10-5 or 24 out of 100, 000, 000.[9] ( Id. ). According to Okun, the cancer risk exceeds an acceptable risk level by a factor of 24. ( Id. ). Okun also criticized Ollson's use of a cancer risk of 1×10-4 as the threshold for determining whether there is a significant excess cancer risk. ( Id. at ¶ 94).

Okun's Second Report acknowledged that both RCRA and the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA") use the phrase "imminent and substantial endangerment" to describe a level of harm that may be caused by the release of harmful materials into the environment. ( Id. at ¶ 97). In addition, Okun noted that the Massachusetts Department of Environmental Protection ("MDEP") has promulgated criteria to determine when an imminent hazard is present. ( Id. at ¶ 98). According to Okun, the MDEP has indicated that the presence of arsenic in concentrations greater than 40 mg/kg (or ppm) within the upper twelve inches of soil at a recreation area or park is an imminent hazard. ( Id. at ¶ 101). Okun noted that he had calculated the EPC for arsenic at the Park to be 53.8 mg/kg, which is thirty-five percent higher than the threshold set by the MDEP. ( Id. at ¶ 102).

Okun concluded that the arsenic concentrations in the Park football field are more than fifty times greater than the concentrations associated with an acceptable human health cancer risk of 1×10-6 and that those concentrations result in an increased cancer risk of 2.4×10-5 to individuals who are exposed to the soil. ( Id. at ¶¶ 104, 108). Further, Okun concluded that the concentrations of arsenic, lead, DDT, DDD and DDE in the football field are significantly greater than the ecological standard cleanup objectives. ( Id. at ¶ 105). Accordingly, Okun concluded that the concentrations of arsenic, lead, DDT, DDD and DDE "pose significant risks to human health and the environment." ( Id. at ¶ 109). In Okun's opinion, the arsenic in the soil of the football field at the Park poses "an imminent and substantial endangerment to human health." ( Id. at ¶ 114).

In the Second Okun Report, Okun noted that even the Town's expert, Ollson, concluded that the soil at the Park posed an increased cancer risk of 10 in one million to groundskeepers and 4 in one million to athletes, spectators and recreational users. ( Id. at ¶ 120). According to Okun, these increased risks exceed the acceptable cancer risk level of one in one million. ( Id. ).

3. Okun Affidavit

In addition to the Second Okun Report, Chart also filed an affidavit from Okun dated February 11, 2014, in support of his opposition to the Town's summary judgment motion. (Docket # 69-41). In the affidavit, Okun responds to the Town's criticism of his expert report. ( Id. at ¶ 3). According to Okun, both he and Ollson use the same methodology to assess the risk posed by the level of arsenic concentrations at the Park. ( Id. ). Okun contends that the only significant disagreements between the two experts are the appropriate assumptions to use to evaluate the risk and their opinions concerning the acceptable level of cancer risk. ( Id. ).

According to Okun, both he and Ollson identified the hazards of concern by comparing the contaminant concentrations in the soil samples to the state cleanup objectives for restricted residential uses. ( Id. at ¶ 4). In addition, according to Okun, he and Ollson agree that the EPC for arsenic in the soil is 53 mg/kg, that the dose reference for non-cancer risk is 3×10-4 mg/kg per day and that the appropriate cancer risk slope factor is 1.5 mg/kg per day. ( Id. at ¶¶ 4-7).

With respect to the exposure assumptions, Okun's affidavit explains that both experts agree that the EPA provides the correct criteria to assess whether contamination at a particular site poses an unreasonable risk to human health. ( Id. at ¶ 9). According to Okun, he followed the EPA criteria by considering the potential future use of the site and not incorporating institutional controls; by contrast, Ollson did not adhere to the EPA's criteria because he incorporated informal Town practices into his analysis and did not consider the potential future uses of the Park. ( Id. at ¶¶ 10-20, 22). In addition, Okun contends that he properly assumed that an individual would be exposed 350 days per year, in accordance with EPA and DEC protocols. ( Id. at ¶ 21).

With respect to the acceptable level of excess cancer risk, Okun contends that both he and Ollson agree that the EPA considers the target risk range to be within 1×10-4 and 1×10-6. ( Id. at ¶ 23). In addition, according to Okun, both experts agree that when the EPA takes action at a particular site, it prefers site remediation towards the more protective - 1×10-6 - end of the range. ( Id. at ¶¶ 24-25).

According to Okun, even if Ollson were correct that the Town's informal policies should be incorporated into the analysis, Ollson's calculations result in a cancer risk greater than the 1×10-6 level. ( Id. at ¶ 26). Ollson maintains those risks are within an acceptable range and do not pose an imminent and substantial threat to human health. ( Id. at ¶¶ 26-27). According to Okun however, those cancer risks are unacceptable and demonstrate that the soil at the Park poses an imminent and substantial harm to human health. ( Id. ).

Okun's affidavit also discusses his analysis of the threat to the environment caused by the concentrations of arsenic, lead, DDT, DDD and DDE in the soil at the Park. ( Id. at ¶¶ 31-35). Finally, Okun's affidavit addresses the adequacy of the grass cover on the football field as a remedy for soil contamination. ( Id. at ¶¶ 36-40).

4. Day Report

Day is an environmental engineer with approximately thirty-seven years of experience investigating and remediating contaminated sites in New York. (Docket # 65-4). He was retained by Chart to provide an analysis and opinion regarding the presence of pesticide-contamination in the soil at the Park. ( Id. at 1). In his report, Day provided a history of the alleged contamination, including the Town's 2003 purchase of the contaminated soil from Crowley, a developer who was redeveloping land formerly used as an apple orchard. ( Id. at 3-4).

In connection with his analysis, Day reviewed the results of soil sampling conducted by Chart and by Chatfield Engineers ("Chatfield"). ( Id. at 4). According to Day, those samples establish that the soil on the football field contains on average 47.9 ppm of arsenic. ( Id. at 6). Day opined that these levels were in excess of standard cleanup objectives of 16 ppm used by state agencies for restricted residential properties and in excess of the 5 to 7.5 ppm background levels of arsenic otherwise contained in the soil at the Park. ( Id. at 6-7).

Day visited the Park during the summers of 2011 and 2012 and observed that the football field was used for soccer games. ( Id. at 8). According to Day, the field was dry and many areas of the field had exposed soil. ( Id. ). Day further indicated that despite some representation that the football field was used for only approximately eight football games per year, Town records reveal that the football field was used on 33 days in 2008, 33 in 2009 and 24 in 2010. ( Id. at 7). Day also reviewed several regulations and tables prepared by New York agencies, including the DEC and the Department of Health. ( Id. at 5-8).

Day opined that the soil obtained from Crowley was a solid waste, the appropriate soil cleanup objective for arsenic in the football field is 16 ppm, and the Town should be required to remediate the area. ( Id. at 8). Day further opined that the current use of the football field at the Park is significantly greater than that indicated by Town representatives. ( Id. at 9). In addition, Day opined that the Town should be required to conduct additional sampling in other areas of the Park where the contaminated soil was placed. ( Id. ).

5. Day Affidavit

In support of his opposition to the Town's summary judgment motion, Chart submitted an affidavit from Day. (Docket # 69-40). In the affidavit, Day expands upon the observations of the Park that he made during his visits between 2011 and 2013. ( Id. at ¶ 2). Day also clarifies an answer that he gave during his deposition. ( Id. at ¶¶ 3-4). According to Day, during his deposition, he was asked if he had considered the definition for solid waste under New York regulations and under RCRA. ( Id. ). Day responded that he had not considered the RCRA definition of solid waste. ( Id. ). According to Day, although he had not specifically considered the RCRA definition, he had considered the fact ...


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