Aiello v. Town of Brookhaven
Decision Date | 15 March 2001 |
Docket Number | No. 94 CNF 2622 FB.,94 CNF 2622 FB. |
Citation | 136 F.Supp.2d 81 |
Parties | Thomas and Marie AIELLO; Dominick and Diane Cerretani; Michael and Debra Josiah; Robert and Christine McGinnis; Kristine McGroary; Timothy and Deborah Odietus; Philip and Lynn Paul; Philip J. Paul, Jr. and Lisa Paul; Denise Ann Vogt; Glen and Dianne Adone; Steven and Kathleen Colasuonno, individually and on behalf of Steven and Michelle Donisi, minors; Don and Kathleen Devereaux; Teresa Rehberg; Louis and Patricia Donisi, individually and on behalf of Steven and Michelle Donisi, minors; Anthony and Janice Genco; Karen Gibaldi; Salvatore Gibaldi; Gina Gibaldi; Joseph C. Sr., and Mary E. Lauricella, individually and on behalf of James and Lori Lauricella, minors; Harold and Susan Liles; Erik Liles; Cory and Linda McKibbin, individually and on behalf of Thomas and Jonathan McKibbin, minors; Andrew and Lorraine Magyar; Andrew and Alyssa Marvel; Frederick and Pamela Portz; Eric and Evelyn Pust; Tara M. Rizzo; Ronald and Linda M. Rizzo, individually and on behalf of Kim L. Rizzo, minor; Angelo C. and Joyce L. Saladino; and Daniel and Janet Weaver, Plaintiffs, v. TOWN OF BROOKHAVEN, Defendant. |
Court | U.S. District Court — Eastern District of New York |
Robert N. Zausmer, Meyer, Suozzi, English & Klein, P.C., Mineola, NY, Bernard L. Burton, Burton & Associates, P.C., Melville, NY, for Plaintiffs.
Annette Eaderesto, Town Attorney, Brookhaven Department of Law, Medford, NY, Charles D. Cunningham, Snitnow & Cunningham, LLP, New York City, for Defendant.
DECISION, ORDER AND CERTIFICATION
Plaintiffs, a group of individuals residing in the immediate vicinity of the former Holtsville Landfill (the "landfill") located in the southwest portion of the Town of Brookhaven, New York ("Town"), have brought this action against the Town alleging violations of two federal environmental statutes, the Resource Conservation and Recovery Act of 1976 ("RCRA") and the Federal Water Pollution Control Act of 1972 ("Clean Water Act" or "CWA"). Their claims are based upon their contention that the landfill has contaminated a creek and pond abutting or in close proximity to their homes. They also allege certain New York State statutory and common law claims as a consequence of such contamination. Plaintiffs seek remediation, compensatory damages, civil penalties and attorney's fees.
The parties stipulated that the trial would be bifurcated. The first phase would resolve liability under the federal claims. If the Town prevailed, plaintiffs agreed to discontinue their state law claims. If plaintiffs were successful, the second phase would resolve the state law claims, in addition to addressing remedies for the federal violations.1 The federal liability claims thereafter were tried before the Court without a jury.2 Pursuant to Federal Rule of Civil Procedure 52(a), the following constitutes the Court's findings of fact and conclusions of law. As gleaned therefrom, the Town is not liable under the Clean Water Act, but is responsible under RCRA for contaminating the creek and pond because it contributed to the disposal of solid waste which presents an imminent and substantial endangerment to the environment. The case will accordingly proceed to the second phase.
Although the record does not precisely trace the history of the landfill, it appears that for some indeterminate period prior to 1937 the property was owned by New York State and used as an open dump for burning garbage. See Ex. 27 at 4-1.3 Thereafter, the Town began acquiring the property and it became the proverbial town dump. In 1968 it was converted by the New York State Environmental Facilities Corporation ("EFC") to a forty-acre sanitary landfill with septage lagoons. See id.; Ex. 33 at 4-1. In 1974 the landfill was closed by EFC and transformed into Town recreational facilities. See Ex. 27 at 4-1, 4-5.4
James Heil ("Heil"), EFC's project manager at the time of the closing of the landfill, testified for the Town that the landfill was closed by first covering it with "sand or material" and then applying "another 18 inches to two feet" of "loam," which was "sort of a tight soil," as a "final cover." Tr. at 875.5 It was not lined. See Ex. 33 at 4-1. Moreover, it "d[id] not contain a leachate collection system." Id.
Although the Town did not maintain records documenting the types or quantities of materials it allowed to be deposited in the landfill, it was "always easily accessible for disposal of industrial waste." Ex. 27 at 4-1. Heil, who prior to becoming the project manager for EFC had inspected the landfill during the late 1960s when employed by the Suffolk County Department of Health Services ("SCDHS"), candidly told the Court that "[t]here [was] no restriction as to what could be dumped into the landfill." Tr. at 902. As he stated, it had been "an open landfill for years and anybody [could] dump anything in it." Tr. at 902-03. Given his personal familiarity with the dump, Heil characterized its contents as "municipal solid waste," id., meaning "solid waste garbage, refuse, yard waste, construction demolition debris, sludges, originating from residential and commercial establishments within a municipality." Tr. at 890. This was confirmed by James Lapienski ("Lapienski"), a former employee of the Town who was employed as a bulldozer operator at the landfill in the mid-1960s. He observed at that time household garbage, televisions, old boats, trees, automotive parts, batteries, tires and sludge being dumped, most of which was brought to the landfill by municipal and private carting firms. See Tr. of Lapienski Dep. at 8-14.6
Approximately 2,500 feet south of the landfill, and about 1,000 feet south of Woodside Avenue, lies Motts Pond. See Ex. I-1.7 It was characterized by the Town's witness, David Tonjes ("Tonjes"), a Town engineer since 1992, as basically a "still body of water." Tr. at 685. Tonjes explained that although there is an "intermittent stream" feeding into the pond from the north, this stream had "very little flow," Tr. at 686, and that "Motts Pond appears to be fed by groundwater" coming from "the shallow groundwater system surrounding the pond." Tr. at 573. Michael Veraldi ("Veraldi"), the plaintiffs' expert witness, opined that groundwater migrates "underneath the landfill and does not surface to become a surface body of water until it gets to Motts Pond." Tr. at 236. Tonjes described the pond as "perhaps 300 feet long, approximately fifty feet wide." Tr. at 573. Although Tonjes placed its depth at one location as ...
To continue reading
Request your trial-
Black Warrior River-Keeper, Inc. v. Drummond Co.
...42 U.S.C. § 6905(c)(2). "Subchapter III" encompasses 42 U.S.C. §§ 6921 to 6939g, i.e. , "Subtitle C," see Aiello v. Town of Brookhaven , 136 F. Supp. 2d 81, 103 n. 22 (E.D.N.Y. 2001) (citing Pub.L. No. 94-580 ), which establishes the federal system for regulating hazardous wastes as a subse......
-
Change v.
...imminent and substantial endangerment to health or the environment." See 42 U.S.C. § 6972(a)(1)(B). See also Aiello v. Town of Brookhaven, 136 F. Supp. 2d 81, 104 (E.D.N.Y. 2001). Defendants contend that the Complaint fails to contain any specific allegations, other than a recitation of sta......
-
Doyle v. Town of Litchfield
...under RCRA). The final case that Doyle offers in support of RCRA standing is similarly unhelpful to him. See Aiello v. Town of Brookhaven, 136 F.Supp.2d 81 (E.D.N.Y.2001). There, the court addressed sua sponte the issue of the plaintiff's standing in a RCRA citizen suit. Id. at 105. After c......
-
Lewis v. Fmc Corp..
...for concern that someone or something may be exposed to risk of harm if prompt remedial action is not taken. Aiello v. Town of Brookhaven, 136 F.Supp.2d 81, 115 (E.D.N.Y.2001) (citation omitted); see also, Raymond K. Hoxsie Real Estate Trust v. Exxon Educ. Fdn., 81 F.Supp.2d 359, 366 (D.R.I......
-
What Wetlands Are Regulated? Jurisdiction of the §404 Program
...of the Clean Water Act and Oil Pollution Act After SWANCC Up to and Including Rapanos CASE OUTCOME Aiello v. Town of Brookhaven , 136 F. Supp. 2d 81 (E.D.N.Y. 2001) Jurisdiction existed over leachate from a landfill where it entered the groundwater, traveled 2,500 feet into a pond, into a ......
-
CHAPTER 3 Waters of the United States (How Many Drops Does It Take)
...Cir 1999) (nonnavigable tributaries flowing into navigable streams are "waters of the United States"); Aiello v. Town of Brookhaven, 136 F.Supp.2d 81, 120 (E.D.N.Y. 2001) (nonnavigable pond and creek which were tributaries of a lake which flowed into a navigable water); Idaho Rural Council ......
-
What Wetlands Are Regulated? Jurisdiction of the §404 Program
...of the Clean Water Act and Oil Pollution Act After SWANCC up to and Including Rapanos CASE OUTCOME Aiello v. Town of Brookhaven , 136 F. Supp. 2d 81 (E.D.N.Y. 2001) Jurisdiction existed over leachate from a landfill where it entered the groundwater, traveled 2,500 feet into a pond, into a ......
-
Plain Meaning, Precedent, and Metaphysics: Lessons in Statutory Interpretation From Analyzing the Elements of the Clean Water Act Offense
...Supp. 2d 1169 (D. Idaho 2001) 3 187. United States v. Buday, 138 F. Supp. 2d 1282 (D. Mont. 2001) 3 188. Aiello v. Town of Brookhaven, 136 F. Supp. 2d 81 (E.D.N.Y. 2001) 3 189. American Mining Cong. v. U.S. Army Corps of Eng’rs, 120 F. Supp. 2d 23 (D.D.C. 2000) 1 190. Pronsolino v. Marcus, ......