Prisco v. A & D Carting Corp.
| Citation | 168 F.3d 593 |
| Decision Date | 17 February 1999 |
| Docket Number | A-1,No. 97-9405,97-9405 |
| Parties | 29 Envtl. L. Rep. 20,609 Filomena PRISCO, Individually and as Administratrix of the Goods, Chattels and Credits of Thomas Prisco, Deceased, Plaintiff, Counter-Defendant, Appellant, v. A & D CARTING CORP., John Danna & Sons, Inc., Gunhill Trucking Ltd., Suburban Carting Corp., and NYCONN Waste Disposal, Defendants, Cross-Defendants, Cross-Claimants, Appellees, Angelo Anthony Calvello,Carting, Inc., LSC Trucking Corp., Decostole Carting, Kristal Papers Ltd., Karnak Inc., and Best Container Service, Inc., Defendants, A.F.C. Carting Inc., State of New York, New York State Department of Environmental Conservation, Thomas C. Jorling, as Commissioner of the New York State Department of Environmental Conservation, New York Organized Crime Task Force, Ronald Goldstock, Esq., as Director of New York Organized Crime Task Force, John M. Murray, as employee of Div. of Law Enforcement, Bureau of Environmental Conservation Investigation, William E. Bubenicek, as employee of Div. of Law Enforcement, Bureau of Environmental Conservation Investigation, New York State Department of Environmental Conservation, New York State Police, Thomas A. Constantine, as Superintendent of New York State Police, Lloyd F. Ward, as an employee of the New York State Police, James Labate,Compaction Corp., A.F.C. Transfer Inc., also known as A.F.C. Transfer Corp., A & M Bros., Inc., American Disposal Services, Inc., Tri-State Trucking Corp., and other, if any, waste depositors who entered plaintiffs' property whose names are presently unknown, Stamford Wrecking Co., Morena Bulk Haulage, APF Carting, Vincent Cavaliere, and Tri-County Disposal, Inc., Defendants, Cross-Defendants, Appellees, Compaction, Inc. and Greene Refuse Service, Defendants, Cross-Claimants, Cross-Defendants, Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Michael V. Sclafani, Reardon & Sclafani, P.C., Yonkers, New York (Walter T. Reardon, of counsel), for Plaintiff, Counter-Defendant, Appellant.
Donna E. Frosco, Keane & Beane, P.C., White Plains, New York (Joel H. Sachs, of counsel), for Defendant-Appellee Stamford Wrecking Company.
Robert Fardella, Smithtown, New York, for Defendant-Appellee Gun Hill Trucking Ltd.
Jeffrey I. Klein, White Plains, New York, for Defendant-Appellee A & D Carting.
Wayne A. Stix, Cherico, Stix & Associates, White Plains, New York, for Defendants-Appellees Suburban Carting Corporation and NYCONN Waste Disposal.
Gerald A. Greenberger, Sheft, Golub & Kamlet, New York, New York, for Defendant-Appellee John Danna & Sons, Inc.
Kevin Barry, Sweeney & Barry, White Plains, New York, for Defendant-Appellee A-1 Compaction.
Dennis C. Vacco, Attorney General of the State of New York (John McConnell, Deputy Solicitor General of the State of New York, Michael Belohlavek, Gregory J. Nolan, Eugene Martin-Leff, Assistant Attorneys General of the State of New York, of counsel) for New York State Defendants-Appellees.
Before: PARKER and SACK, Circuit Judges, and SEAR *, District Judge.
In the spring of 1987, Thomas and Filomena Prisco, husband and wife, began an attempt to increase the value of their land by leveling a portion of it using as fill waste construction and demolition materials delivered to the site by a variety of business entities. They discovered they could also make substantial sums by permitting others to dispose of waste on their property for a fee. The efforts entangled them with two New York State law enforcement officials who said that they would operate the landfill on the State's behalf. One or both of the officers may have been engaged in an undercover operation designed to obtain information about corruption in the construction and demolition industry. The landfill operation nonetheless was soon shut down by State environmental authorities. Hazardous substances have since been leaching from the Prisco property into the surrounding wetlands.
In 1991, the Priscos filed suit in the United States District Court for the Southern District of New York against a host of private and public defendants, asserting causes of action under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq., and the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6972 et seq., in addition to various state law claims. Sometime between then and trial, Thomas Prisco died. See Prisco v. State of New York, No. 91 Civ. 3990(RLC), 1994 WL 114818, 1994 U.S. Dist. LEXIS 3542 (S.D.N.Y. Mar. 25, 1994). Filomena Prisco continued the suit in her own behalf and as administratrix of his estate. Id. After a simultaneous jury trial on the state claims and bench trial on the federal statutory issues, on October 1, 1997, the district court (Carter, J.) dismissed her CERCLA and RCRA claims. She appeals from this judgment. 1
Prisco contends that the district court, in dismissing her CERCLA claim against the various private defendants, applied the wrong legal standard when it determined that they were not responsible parties within the meaning of 42 U.S.C. § 9607(a). She argues also that the district court applied the wrong legal standard in dismissing her RCRA claim against the private defendants. Prisco asserts further that the district court erred by failing to notify her that it would revisit certain pretrial rulings in her favor on the issue of whether the private defendants were responsible parties under CERCLA and RCRA. Finally, Prisco argues that the district court erred in determining that the various state defendants were not liable for the actions of the two New York State law enforcement officials.
We disagree on all counts and therefore affirm the judgment of the trial court.
The locus of the events giving rise to this litigation was a twenty-two acre tract of land owned by the Priscos adjacent to Route 22 in the town of Patterson, in Putnam County, New York. The property consisted of the Priscos' summer home, a barn, a pond, a small stream, a small wetlands, and a sunken area towards the rear of the land. A small ridge separates the pond from a major wetland area known as the Great Swamp. Two thousand feet to the west is the East Branch of the Croton River, which feeds into the New York City water supply system.
Throughout the 1980's, in addition to maintaining their small home there, the Priscos employed their property in a variety of commercial pursuits. They hosted an annual flea market with adjoining parking, leased a building to a restaurant, and leased a cottage and several trailers to residential tenants. Previously, the Priscos had leased their barn for use in a furniture-stripping operation.
In 1986, the Priscos learned of pending commercial development nearby. Sensing an opportunity to sell their property at an advantage, they decided first to attempt to improve the value of the land by leveling it.
The cost of purchasing ordinary fill for that purpose, however, was prohibitive.
Fortuitously, at about this time, the Priscos were contacted by a pair of acquaintances, Bob Colandro and Walter Avasariak, about the possibility of the Priscos allowing them to dump construction and demolition material on the Priscos' land. The Priscos agreed and, sometime in the Spring of 1987, Colandro and Avasariak began operations. At the time their landfill was born, the Priscos were away on their annual winter sojourn in Florida.
Around May or June of 1987, Colandro and Avasariak ceased operations, apparently because the Priscos would not pay them to continue. But Avasariak introduced the Priscos to Stamford Wrecking Co., a building demolition and disposal company, which agreed to pay the Priscos $8 per cubic yard for the right to deposit construction and demolition material on their land. Stamford began operations immediately, dumping material on the Prisco property until the fall of 1987, when it decided the operation was uneconomic. By the time it discontinued the operation, Stamford had paid the Priscos approximately $100,000 for dumping rights.
Meanwhile, in August 1987, Lieutenant William Bubenicek, of the New York State Department of Environmental Conservation's ("DEC") Bureau of Environmental Conservation Investigation Unit, encountered the Priscos at their flea market. He later introduced the Priscos to Butch Ward, an investigator with the New York State Police, who was on medical disability leave. Bubenicek and Ward, in the course of several conversations over a period of several months, convinced the Priscos to allow their property to be used as what they were told would be a state-run construction and demolition disposal site for stone, dirt and wood. The Priscos later asked Bubenicek to memorialize their arrangement in writing. Neither he nor anyone else ever did.
In October 1987, Bubenicek and his immediate supervisor, Captain John Murray, met with the State's Organized Crime Task Force about the role of organized crime and corruption in the construction and demolition industry. Bubenicek told Murray that he had an informant, Ward, who was operating a site in Patterson, New York, and who was providing information about the people in the construction and demolition business, shipping and tipping costs, and the location of new sites. Bubenicek later testified that he had seen the Priscos' landfill operation over the summer and, knowing Ward's desire to get into that business, had told him about it and introduced him to the Priscos. Bubenicek told Murray also that he would be working with the task force's ongoing investigation of corruption in the construction and demolition industry.
The Prisco landfill, now in its third incarnation, was again operational by late October or early November 1987. Ward hired Anthony Calvello, James LaBate, and their company, AFC Transfer, to operate the landfill on a day-to-day basis. Calvello...
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