Gache v. Town of Harrison, NY

• Decision Date: 09 February 1993
• Docket Number: No. 90 Civ. 5908 (GLG).,90 Civ. 5908 (GLG).
• Citation: 813 F. Supp. 1037
• Parties: Peter D. GACHE, Plaintiff, v. TOWN OF HARRISON, NEW YORK and The Village of Harrison, New York, Defendants.
• Court: U.S. District Court — Southern District of New York

813 F. Supp. 1037

Peter D. GACHE, Plaintiff, v. TOWN OF HARRISON, NEW YORK and The Village of Harrison, New York, Defendants.

No. 90 Civ. 5908 (GLG).

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

February 9, 1993.

COPYRIGHT MATERIAL OMITTED

Sidley & Austin, New York City, for plaintiff by Donald Stever, Mark Rachlin, Steven D. Myers, of counsel.

Skadden, Arps, Slate, Meacher & Flom, Washington, DC (John A. Amodeo, Jerry Jackson, of counsel), Ronald Bianchi, Town Atty., Harrison, NY, Daniel A. Piloseno, White Plains, NY, for defendants.

OPINION

GOETTEL, District Judge.

I. FACTUAL BACKGROUND

The Town of Harrison, New York maintains a municipal garage on Barnes Lane in the Purchase area of Harrison. The garage is primarily used for storage of highway maintenance vehicles. Beginning around 1970, the Town began dumping waste materials (including brush, concrete, scrap metal and auto parts) into a landfill behind the garage. Since 1970 and until 1989, when the Town ceased its dumping activities, the landfill gradually spread onto property owned by plaintiff Peter Gache. From 1982 through 1989, the Town charged private third parties, including gardeners and landscapers, a fee to dump materials into the landfill located on plaintiff's land. The Town never sought permission to dump on plaintiff's property. Plaintiff has offered evidence showing that the landfill sits atop or adjacent to a stream.

In 1989, the Town closed access to the landfill and began using an alternative site for its waste disposal. This action was taken after plaintiff had served a notice of claim pursuant to § 50-e of New York General Municipal Law. The landfill allegedly occupies some 5.5 acres of plaintiff's property and reaches in some areas a height of over 20 feet. Plaintiff retained two environmental consulting firms to sample the landfill's soil, the air above it, and the water and sediments in surrounding streams and wetland areas. The sampling data was also analyzed by an environmental expert retained by the Town.

The Town's expert concluded that the landfill poses no threat to human health or the environment, even if the property were developed for residential use. Reaching a contrary conclusion, plaintiff's expert recommended excavation of the landfill. Plaintiff alleges that the landfill has discharged lead and zinc into the stream and an underground fire is burning at the dump as evidenced by elevated groundwater temperatures.

In September 1990, plaintiff filed this action against the Town of Harrison and the Village of Harrison¹ alleging violations of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §§ 6972(a)(1)(A) and 6945(a) and the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9607. Plaintiff also raises state claims of trespass, public and private nuisance, inverse condemnation, and zoning violations.

Before the court today are motions for partial summary judgment brought by the defendants Town of Harrison and the Village of Harrison (collectively the "Town") on plaintiff's RCRA claim, the injunctive relief requested under both environmental statutes, and certain response costs claimed by plaintiff. Defendant also seeks summary judgment on plaintiff's claims of trespass, nuisance, inverse condemnation, and zoning violations or in the alternative, an order in limine precluding plaintiff's expert from testifying on issues of valuation and psychological impact.

Plaintiff has cross-moved for partial summary judgment on defendants' affirmative defense of adverse possession. In response, defendants have moved to strike the exhibits to plaintiff's memorandum in opposition to their summary judgment motions.

II. DISCUSSION

A. Defendant Town's Motion For Partial Summary Judgment on the Environmental Claims

Turning to the substantive motions, defendants first argue that plaintiff's RCRA claim must be dismissed and excavation of the landfill denied because no evidence exists showing any threat to human health or the environment from the defunct landfill. Defendants also seek summary judgment on plaintiff's claims for remediation costs under RCRA and response costs under CERCLA.

To prevail on a motion for summary judgment, the moving party must demonstrate "that there is no genuine issue as to any material fact and that it is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Only disputes over facts that might affect the outcome of the suit under the governing law will preclude the entry summary judgment. Further, the court's function is not to resolve disputed issues of fact but solely to determine if genuine issues of fact exist. Uncertainty regarding the truth of any alleged material fact will defeat a summary judgment motion. United States v. One Tintoretto Painting, 691 F.2d 603, 606 (2nd Cir.1982).

Summary judgment is appropriate when, after drawing all reasonable inferences in favor of the non-moving party and reading the record in a light most favorable to him, no reasonable trier of fact could find in favor of the non-moving party. Murray v. National Broadcasting Co., 844 F.2d 988, 992 (2d Cir.), cert. denied, 488 U.S. 955, 109 S.Ct. 391, 102 L.Ed.2d 380 (1988).

1. RCRA Claim

Defendants contend that summary judgment is required for plaintiff's RCRA claim because plaintiff has offered no evidence that a continuing violation of RCRA exists. Since the Town's dumping ended in 1989 and no evidence of further dumping exists on the record, defendants claim that plaintiff has alleged only past violation, not actionable under section 7002(a)(1)(A) of RCRA, 42 U.S.C. § 6972(a)(1). Plaintiff contends that whether the Town's violation of RCRA is ongoing is a question of fact which precludes summary judgment.

Section 7002(a)(1)(A) of RCRA permits citizens suits against any person "who is alleged to be in violation of any permit, standard, regulation, condition, requirement, or order which has become effective pursuant to RCRA." 42 U.S.C. § 6972(a)(1)(A). The section continues by saying that "any action under paragraph (a)(1) of this subsection shall be brought in the district court for the district in which the alleged violation occurred." Id. (emphasis added).

Under the plain meaning of the statute, the continued presence of illegally dumped waste could constitute being "in violation" of a RCRA regulation or standard. The second quoted passage from (a)(1), stated in the past tense, clearly implies violations that have already occurred. Congress could have easily constructed this provision to rule out materials already discharged as a continuing violation by using a phrase such as "in which the alleged violation is occurring." Reading these provisions of (a)(1) together so as not to render the section contradictory, we conclude, as other courts have, that improperly discharged wastes which continue to exist unremediated represent a continuing violation of RCRA.

The crux of the Town's position is that because it has not dumped any materials after 1989, nor has plaintiff shown evidence of harmful wastes seeping out of the landfill, only past violations of RCRA can exist.

To support its position, the Town, citing Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987), argues that no present RCRA violation can exist since the Town no longer dumps into the landfill. We think this argument overstates the Gwaltney holding. In Gwaltney, a citizens group sought civil penalties for past discharges in violation of a NPDES permit, discharges which had entirely ceased. The Court held that a citizens suit could only be brought where an ongoing violation existed.

The Town argues, and we do not disagree, that wholly past violations of RCRA cannot be subject to citizens suits under § 7002 of RCRA. See Chartrand v. Chrysler Corp., 785 F.Supp. 666, 669-70 (E.D.Mich.1992); Lutz v. Chromatex, Inc., 718 F.Supp. 413, 424 (M.D.Pa.1989). However, the Supreme Court in Gwaltney did not detail what sort of actions could constitute a continuing violation. The focal question becomes whether defendants' alleged violations of RCRA should be considered wholly past violations.

Defendants focus on the act of dumping in assessing whether a continuing violation of RCRA exists. The Town argues that all dumping activities ceased in 1989 and have not been resumed since. We reject this contention as an overly narrow view of the violation that occurred. The continued presence of illegally dumped materials on plaintiff's property could constitute a continuing violation of RCRA. The environmental harms do not stem from the act of dumping when waste materials slide off the dump truck but rather after they land and begin to seep into the ground, contaminating soil and water. So long as wastes remain in the landfill threatening to leach into the surrounding soil and water, a continuing violation surely may exist.

Other courts have held that a claim of an ongoing violation need not rest on the occurrence of discharges around or after the filing of a lawsuit. See, e.g., North Carolina Wildlife Federation v. Woodbury, 1989 WL 106517, 1989 U.S. Dist. LEXIS 13915, 29 E.R.C. (BNA) 1941 (E.D.N.C. 1989); Fallowfield Development Corp. v. Strunk, 1990 WL 52745, 1990 U.S. Dist. LEXIS 4820 (E.D.Pa.1990). In particular, the court in North Carolina Wildlife held:

Plaintiffs have clearly alleged continuing violations up to the filing of the complaint. Plaintiffs need not allege specific discharge dates occurring around or after the filing of the lawsuit since both plaintiffs and federal defendants contend that private defendant's failure to remove improperly discharged material constitutes a continuing violation ... Treating the failure to take remedial measures is eminently reasonable. This is because it is not the physical act of discharging dredge wastes itself that leads to the injury giving rise to citizen standing, but the

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