George v. REISDORF BROS., INC.

• Decision Date: 10 February 2010
• Docket Number: No. 08-CV-00424(M).,08-CV-00424(M).
• Citation: 696 F. Supp.2d 333
• Parties: Patrick GEORGE and Linda George, Plaintiffs, v. REISDORF BROS., INC., Defendant.
• Court: U.S. District Court — Western District of New York

696 F. Supp.2d 333

Patrick GEORGE and Linda George, Plaintiffs, v. REISDORF BROS., INC., Defendant.

No. 08-CV-00424(M).

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

February 10, 2010.

Cheryl Smith Fisher, James L. Magavern, Magavern, Magavern & Grimm, Buffalo, NY, for Plaintiffs.

James M. Wujcik, Eric T. Dadd, Dadd and Nelson, Attica, NY, for Defendant.

DECISION AND ORDER

JEREMIAH J. McCARTHY, Untied States Magistrate Judge.

In accordance with 28 U.S.C. § 636(c), the parties have consented to jurisdiction by a United States Magistrate Judge 24.¹ Before me are the motions of plaintiffs Patrick and Linda George ("George") motion for partial summary judgment 44, and the motion of defendant Reisdorf Bros., Inc. ("Reisdorf") for summary judgment 46. For the following reasons, Reisdorf's motion is granted to the extent of dismissing the Georges' federal claims but otherwise denied. Because I decline to exercise supplemental jurisdiction over the Georges' state law claims, the parties' motions with respect those claims are denied, and the claims are dismissed, without prejudice to renewal in state court.

BACKGROUND

The Georges are the owners of a dairy farm located in North Java, New York, which they acquired in 1989. Complaint 1, ¶¶ 2, 7. Reisdorf is the owner of a fertilizer, chemical and feed distribution plant on the adjacent parcel that sits to the west and southwest of plaintiffs' farm. Id., ¶ 3. In 1987 Reisdorf purchased a piece of land adjacent to its existing parcel and immediately west of the Georges' parcel ("1987 Parcel"). Id., ¶ 8. The parcels are separated by a barbed wire fence, id., ¶ 9, which is located approximately 20 feet to the west of the eastern border of the 1987 Parcel and extends in a easterly direction around a well that the Georges use to service their home and farm. George affidavit 44-3, ¶ 5, Ex. C.

In March 2007 Reisdorf applied to the Town of Sheldon Zoning Board of Appeals for a variance allowing it to construct a silo on the 1987 Parcel. Complaint 1, ¶ 14. According to the Georges, Reisdorf promised them that they would have clean water in exchange for withdrawing their opposition to the variance. Id.

The Georges allege that Tonawanda Creek runs through their property, and that "from approximately 2003 to date, defendant's operations have caused deposits and discharges of fertilizer, feed, petroleum products, waste water, molasses and other pollutants and wastes into Tonawanda Creek and a tributary thereof and onto the surface of the land and into the ground water thereby polluting the ground water, Plaintiff's well and Tonawanda Creek." Id., ¶¶ 10, 12.

Based upon this conduct, the Georges have asserted claims for violations of the Clean Water Act ("CWA") (first count) and the Resource Conservation and Recovery Act ("RCRA") (second count). In addition, they have asserted various state law claims, including violations of the New York Environmental Conservation Law (first count), nuisance (third count), breach of contract (fourth count), and trespass (fifth count).

Following the close of discovery, these motions ensued. The Georges seek partial summary judgment determining the lawful boundary between parties' parcels 44, and Reisdorf seeks summary judgment dismissing all of the Georges' claims.

ANALYSIS

A. Summary Judgment Standard

The standard to be applied on a motion for summary judgment in this Circuit is well settled. "Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The party seeking summary judgment has the burden to demonstrate that no genuine issue of material fact exists. In determining whether a genuine issue of material fact exists, a court must examine the evidence in the light most favorable to, and draw all inferences in favor of, the non-movant. Summary judgment is improper if there is any evidence in the record that could reasonably support the jury's verdict for the non-moving party." Ford v. Reynolds, 316 F.3d 351, 354 (2d Cir.2003).

The question before me on this motion is "whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented". Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Id. If "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial'", and the motion must be granted. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

B. Reisdorf's Motion for Summary Judgment

1. Plaintiffs' CWA Claim

The Georges allege that "by discharging pollutants into the ground water and Tonawanda Creek, Defendant has violated and continues to violate the CWA, in particular 33 USC §§ 1311, 1342 and Sections 11-0503, 17-0501 and 17-0505 of the New York Environmental Conservation Law." Complaint 1, ¶ 19.

"The CWA `formally prohibits the `discharge of a pollutant' by `any person' from any `point source' to navigable waters except when authorized by a permit issued under the National Pollutant Discharge Elimination System (`NPDES').'" Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199, 215 (2d Cir.2009). "NPDES permits are issued either by the EPA, itself, or by the states in a federally approved permitting system." Waterkeeper Alliance, Inc. v. United States Environmental Protection Agency, 399 F.3d 486, 491 (2d Cir. 2005). A State Pollution Discharge Elimination System ("SPDES") permit issued by the New York State Department of Environmental Conservation ("DEC"), is a federally approved state permit system. See Riverkeeper, Inc. v. Mirant Lovett, LLC, 675 F.Supp.2d 337, 343-44 (S.D.N.Y. 2009).

Citizen suits are permitted under the CWA, which provides that "any citizen may commence a civil action on his own behalf ... against any person ... who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation." 33 U.S.C. § 1365(a)(1).

The term "to be in violation" as used in § 1365 has been interpreted to require that "citizen-plaintiffs allege a state of either continuous or intermittent violation-that is, a reasonable likelihood that a past polluter will continue to pollute in the future." Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 57, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987). The CWA does not permit suits for "wholly past violations." Id., at 64, 108 S.Ct. 376.

Reisdorf argues that the Georges have failed to establish a triable issue of fact as to whether the waters that run through their property are "waters of the United States" (Reisdorf's Memorandum of Law 46-12, pp. 4-6), that a pollutant has been discharged by Reisdorf into the waters of the United States, (id., pp. 6-7), and that there has been a continuing violation (id., p. 8). Reisdorf also argues that the Georges lack standing to sue under the CWA because they have not demonstrated an injury in fact. Id., pp. 7-8.²

Because standing goes to my subject matter jurisdiction, I will address that argument first.

a. Do the Georges Have Standing to Sue under the CWA?

In order to show Article III standing, a plaintiff has the burden of proving: (1) that he or she suffered an "injury in fact," (2) a causal relationship between the injury and the challenged conduct, and (3) that the injury likely will be redressed by a favorable decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Reisdorf argues that the Georges have not established an injury in fact. Reisdorf's Memorandum of Law 46-12, pp. 7-8.

To establish an injury in fact, the Georges rely on their expert reports, Linda George's testimony that they have been unable to use their well for drinking and bathing and unable to eat fish from the Creek, and "the admission implicit in Mr. Reisdorf's promise to ensure that they have water (in context obviously meaning clean water)". Plaintiffs' Memorandum of Law 55-1, p. 4.

"It cannot be forgotten that Congress, in affording the statutory right to sue under the Clean Water Act to any `person or persons having an interest which is or may be affected' by, inter alia, any violation of any state order setting an effluent standard or limitation, see 33 U.S.C. § 1365, seemingly intended to confer standing on as broad a range of affected persons as is consistent with the dictates of Article III of the Constitution." Hudson Riverkeeper Fund, Inc. v. Yorktown Heights Sewer District, 949 F.Supp. 210, 212 (S.D.N.Y. 1996). Thus, "a plaintiff may show an aesthetic, recreational, or economic injury." Parker v. Scrap Metal Processors, Inc., 386 F.3d 993, 1021 n. 4 (11th Cir. 2004) (citing Friends of the Earth, Inc. v. Laidlaw Environmental Services, 528 U.S. 167, 181-83, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)).

The Georges' alleged inability to eat the fish caught in Tonawanda Creek as a result of Reisdorf's alleged discharge of pollutants (Patrick George affidavit 55-3, ¶ 3; Dadd affidavit 46-3, Ex. G, pp. 110-112) is sufficient to raise a triable issue of fact as to whether they have standing to maintain this suit. See Hudson Riverkeeper Fund, Inc., supra, 949 F.Supp. at 212 ("Mr. Hodes ... avers that he is a regular trout fisherman in the waters into which the defendants' pollutants are directly discharged and that the fishing has steadily worsened over the period of these discharges.... When this is coupled with Dr. Bell's averments that the excess discharges are...