Fresh Air for the Eastside, Inc. v. Waste Mgmt. of N.Y., L.L.C.

• Decision Date: 16 September 2019
• Docket Number: 6:18-CV-06588-EAW
• Citation: 405 F.Supp.3d 408
• Parties: FRESH AIR FOR THE EASTSIDE, INC., et al., Plaintiffs, v. WASTE MANAGEMENT OF NEW YORK, L.L.C., and The City of New York, Defendants.
• Court: U.S. District Court — Western District of New York

405 F.Supp.3d 408

FRESH AIR FOR THE EASTSIDE, INC., et al., Plaintiffs,

v.WASTE MANAGEMENT OF NEW YORK, L.L.C., and The City of New York, Defendants.

6:18-CV-06588-EAW

United States District Court, W.D. New York.

Signed September 16, 2019

Dwight Eliot Kanyuck, Melissa M. Valle, Linda Radko Shaw, Knauf Shaw LLP, Rochester, NY, for Plaintiffs.

Joseph D. Picciotti, Kelly S. Foss, Harris Beach LLP, Pittsford, NY, for Defendants.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

INTRODUCTION

Plaintiff Fresh Air for the Eastside, Inc. ("FAFE") and over 220 individual plaintiffs (collectively, "Plaintiffs") filed this action against Waste Management of New York, LLC ("WMNY") and New York City ("NYC") (collectively, "Defendants") alleging violations of the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. ("RCRA"), the Clean Air Act, 42 U.S.C. § 7401 et seq. (the "CAA"), and various common law obligations arising from WMNY's operation of the High Acres Landfill and Recycling Center (the "Landfill") in Perinton, New York, and NYC's agreement with WMNY (the "NYC Contract") to ship hundreds of thousands of tons of municipal solid waste ("MSW") to the Landfill each year for thirty years. (Dkt. 15).

Presently before the Court are WMNY's motion to dismiss the Complaint (Dkt. 9), WMNY's motion to dismiss the Amended Complaint (Dkt. 22), and NYC's motion to dismiss (Dkt. 27). For the following reasons, WMNY's motion to dismiss the Complaint is dismissed as moot, WMNY's motion to dismiss the Amended Complaint is granted as to the private nuisance and trespass claims but it is otherwise denied, and NYC's motion to dismiss is denied.

BACKGROUND ¹

FAFE is a not-for-profit corporation organized "to preserve and protect the environment for the benefit of the residents living in proximity to the Landfill[.]" (Dkt. 15 at ¶¶ 15-16). Plaintiffs include just over 220 individual residents and members of FAFE, who live between 0.3 to 4 miles from the Landfill. (See id. at ¶¶ 18, 20). Plaintiffs claim that the Landfill's operations have prevented the quiet use and enjoyment of their property by emitting noxious odors and excess fugitive emissions, creating an environment conducive for the spread of vector species,² and causing noise and tremors. (See, e.g. , Dkt. 15 at ¶ 17). As a result, Plaintiffs allege that a "large number" of landowners have considered selling their houses, and "some" have actually done so and moved out of the community or have sought mental health counseling. (Id. at ¶¶ 21-23). Plaintiffs further allege that the odors and the "general stigma from the Landfill ... ha[ve] permanently stigmatized the Community" and have given rise to fears of diminishing property values. (Id. at ¶ 24). These noxious emissions are also noticeable in public spaces, such as at business and recreational locations and a local elementary school. (Id. at ¶ 29).

Plaintiffs have identified specific impacts to certain individual landowners. (See id. at ¶ 32). Outside of selling their property, some landowners have observed "visible cracks" in their houses caused by tremors resulting from Landfill activities.³ Furthermore, the odors and fugitive emissions have caused certain plaintiffs to experience headaches, eye, nose, and throat irritation, anxiety, and nausea, and have resulted in diminished property values. (See also id. at ¶ 28). Some plaintiffs have spent money on pest exterminators and on devices to prevent the odors from entering their homes. (See id. at ¶¶ 25, 27, 32).

I. The Landfill Permit and the Air Permit

The Landfill operates under a New York State Department of Environmental Conservation ("DEC") permit, issued pursuant to Article 27 of the Environmental Conservation Law and its corresponding regulations for MSW landfills (the "Landfill Permit"). (Id. at ¶ 46). The Landfill Permit was first issued in 1993, "in conjunction with the approval of the Western Expansion of the Landfill" (the "WEX"), and the DEC has since modified it to allow further expansions to take place. (Id. at ¶¶ 51, 62-67). The WEX and the first two modifications, which took place in 2001 ("Parkway Expansion Phase I") and 2003 ("Parkway Expansion Phase II"), are all located in the Town of Perinton, New York. (Id. at ¶ 66). A third modification occurred in 2011 ("Parkway Expansion Phase III"), which is "largely located in [the Town of] Macedon." (See id. at ¶¶ 66-67).

The Landfill emits gaseous compounds as the MSW decomposes, including "methane, carbon dioxide, and non-methane organic compounds (‘NMOC’)." (Id. at ¶¶ 78-79). NMOCs include volatile organic chemicals ("VOCs") and hazardous air pollutants ("HAPs") as well as "odorous compounds," such as hydrogen sulfide. (Id. at ¶¶ 80-81). The DEC issued WMNY's current Air Permit in 2001, which requires the Landfill "to operate an active Landfill Gas collection system [ (the ‘Collection System’) ] that minimizes the off-site migration of Landfill Gas." (Id. at ¶¶ 86-88). The Air Permit assumes the Collection System will collect and burn about 85% of all Landfill Gas, while the remaining 15% of emissions will be released into the surrounding environment. (Id. at ¶ 90). According to Plaintiffs, "Excess Fugitive Emissions" constitutes Landfill Gas that is released into the environment in excess of that 15% base assumption due to operating or maintenance deficiencies. (Id. at ¶ 92). The Landfill Permit and the Air Permit require WMNY to prevent noxious odors from becoming nuisance conditions. (Id. at ¶ 94).

II. The Rail Facility and the NYC Contract

In 2013, the DEC "authorize[d] the construction and operation of an intermodal rail facility to accept MSW by train from a new CSX rail spur." (Id. at ¶ 68; see id. at ¶ 99). Once this facility was completed in mid-2015, NYC began to ship MSW to the Landfill. (Id. at ¶ 100). Plaintiffs claim this MSW is "significantly more odorous" because it takes "weeks from curb pick-up to receipt by rail at the Landfill," thereby increasing the duration of pre-landfill decomposition. (Id. at ¶¶ 101-02). NYC sends hundreds of thousands of tons of MSW to the Landfill per year, and the NYC MSW constituted 75% and 71% of the total MSW deposited at the Landfill in 2016 and 2017, respectively. (Id. at ¶ 111).

In February 2017, WMNY and NYC entered into the NYC Contract, whereby WMNY agreed to deposit NYC MSW at the Landfill for 30 years. (Id. at ¶ 113). NYC allegedly retained some authority to "direct changes to the WMNY operating schedule for disposal operations at the Landfill," and it required WMNY to comply with all laws applicable to the Landfill, to report permit violations to NYC, and to make any necessary operating and management changes to resolve nuisance conditions. (Id. at ¶¶ 115-18).

III. Horizontal Gas Collectors

The Landfill Permit requires that Landfill Cells 10 and 11, which are part of Parkway Expansion Phase II, contain "horizontal gas collection trenches" ("Horizontal Gas Collectors"). (Id. at ¶ 120; see id. at ¶¶ 125, 127). Horizontal Gas Collectors "consist of perforated pipes connected to vertical wells" and "provide a greater vacuum zone of influence ... to initially collect low quality landfill gas for combustion." (Id. at ¶¶ 121-22). In 2014, "WMNY's corporate parent [allegedly] decided to eliminate the use of Horizontal Gas Collectors in all new Landfill cells and instead install only a new form of slip vertical wells," as a cost-savings measure. (Id. at ¶ 124). Plaintiffs further allege that WMNY had previously indicated that Horizontal Gas Collectors would be installed to control Landfill odors and were the primary means to do so. (Id. at ¶¶ 128-29, 131).

Plaintiffs claim that WMNY personnel previously admitted that the Horizontal Gas Collectors were not installed in Landfill Cells 10 and 11, and that WMNY's reliance upon vertical gas wells compromised the Collection System and was the primary cause of the excessive noxious emissions. (See id. at ¶¶ 136-40, 146-49). Plaintiffs assert that these actions constitute continuing violations of WMNY's permit obligations. (Id. at ¶ 152).

IV. Plaintiffs Allege that the Odors Constitute a Continuing Nuisance

The Landfill odors intensified once NYC began to ship MSW to the Landfill in 2015, coinciding with WMNY's decision to forgo the installation of Horizontal Gas Collectors (id. at ¶¶ 153-54), and they worsened again in the summer of 2017, when WMNY dug into Landfill Cells 10 and 11 to "retroactively install Horizontal Gas Collectors," releasing additional fumes (id. at ¶¶ 160-61). The individual Plaintiffs subsequently formed FAFE in November 2017 and began collecting reports of odors. (Id. at ¶ 162). Over 11,000 odor reports were submitted between November 2017 and the filing of the Amended Complaint. (Id. at ¶ 166).

Plaintiffs allege that WMNY's failure to install and maintain Horizontal Gas Collectors and its inadequate management of the NYC MSW resulted in increased noxious emissions. (Id. at ¶ 184). Plaintiffs describe WMNY's mitigation actions as retroactive attempts to comply with established permit obligations, rather than actual solutions to its operational deficiencies. (See id. at ¶¶ 191-96). Plaintiffs also allege that WMNY never assessed whether it should handle the NYC MSW differently or eliminate its receipt, even though WMNY's "Odor Control Plan"⁴ required it do so. (Id. at ¶¶ 196, 198-200).

At a January 16, 2018, public meeting, WMNY allegedly admitted that it had caused a public nuisance and that the odors would likely worsen before they improved because the Landfill Cells needed to be retrofitted with Horizontal Gas Collectors, and new vertical gas wells were required because "40% of the existing vertical wells were not functioning." (Id. at ¶ 207). On February 2, 2018, the DEC issued a Notice of Violation (the "NOV"), which concluded that WMNY was operating the Landfill in violation of state solid waste and air pollution control regulations and its permit obligations, and required...