Raymond K. Hoxsie Real Estate v. Exxon Education

• Decision Date: 04 February 2000
• Docket Number: No. 97-557-L.,97-557-L.
• Citation: 81 F.Supp.2d 359
• Parties: RAYMOND K. HOXSIE REAL ESTATE TRUST, Raymond K. Hoxsie, Trustee, and Katherine W. Hoxsie, Trustee, Plaintiffs, v. EXXON EDUCATION FOUNDATION, Exxon Corporation, Sunoco, Inc., James J. Chinigo, Donald Ardinger, and Edward F. Phalen, Defendants.
• Court: Rhode Island Supreme Court

81 F.Supp.2d 359

RAYMOND K. HOXSIE REAL ESTATE TRUST, Raymond K. Hoxsie, Trustee, and Katherine W. Hoxsie, Trustee, Plaintiffs, v. EXXON EDUCATION FOUNDATION, Exxon Corporation, Sunoco, Inc., James J. Chinigo, Donald Ardinger, and Edward F. Phalen, Defendants.

No. 97-557-L.

United States District Court, D. Rhode Island.

February 4, 2000.

William M. Dolan, III, Brown, Rudnick, Freed & Gesmer, Providence, RI, for plaintiff.

Ralph T. Lepore, III, Deborah E. Barnard, Elizabeth M. Mitchell, Holland & Knight LLP, Boston, MA, for Exxon, defendant.

Robert D. Fine, Annie Talbot, Chace, Ruttenberg & Freedman, Providence, RI, for Exxon, defendant.

William J. Stack, Exxon Company USA, Houston, TX, for Exxon, defendant.

John B. Reilly, Warwick, RI, for Sun Company, defendant.

Edward H. Newman, Westerly, RI, for defendant Ardinger.

Nancy E. Wildes, Pawcatuck, CT, for defendant Phelan.

DECISION AND ORDER

LAGUEUX, District Judge.

This case arises from petroleum hydrocarbon contamination at two properties owned by plaintiff Raymond K. Hoxsie Real Estate Trust ("Trust"), of which plaintiffs Raymond and Katherine Hoxsie are trustees (collectively "plaintiffs"). Plaintiffs brought this action in September, 1997 against the above named defendants, seeking judgment on four counts. Only the first three are currently at issue. Counts I and II seek an injunction under the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6901 et seq., requiring all defendants, with the exception of Sunoco, Inc. ("Sun"), to remediate the contamination. Count III seeks damages from the same defendants under R.I.Gen.Laws § 46-12-21 for their alleged pollution of groundwater at plaintiffs' properties. Defendants Exxon Educational Foundation and Exxon Corporation ("the Exxon defendants") seek summary judgment on Counts I, II and III, essentially alleging that the statutory remedies invoked by plaintiffs are not available to them as a matter of law.

For the reasons set forth below, this Court denies the Exxon defendants' motion for summary judgment as to Counts I and II, but grants the motion as to Count III.

I. Background

Plaintiff Trust presently owns several pieces of property in a commercial area in Westerly, Rhode Island on which a car dealership is operated. These properties include 92 and 98 Granite Street, which are at issue in this case. The property at 92 Granite Street was operated as a gasoline service station from at least 1950 until 1984.¹ The Exxon defendants' predecessor in interest acquired the 92 Granite Street property from Lehigh Realty Co., Inc. in 1958. Various independent franchise dealers, including Thomas Holliday, defendant James J. Chinigo, Frederick E. Doty, Jr., defendant Edward F. Phelan and defendant Donald Ardinger, used this property to sell Exxon gasoline and related products from approximately 1960 until sometime prior to October 11, 1984. Between September 1984 and October 11, 1984, the Exxon defendants caused to be removed from 92 Granite Street several underground storage tanks ("USTs") that had been used to store petroleum, and terminated use of the property as a service station. They maintain that all of the USTs used by them were removed at that time.

In August, 1985, the Exxon defendants sold 92 Granite Street to Joseph A. Clancy and Merton L. Matthews. In 1986, plaintiff Raymond Hoxsie acquired both 92 and 98 Granite Street from Clancy and Matthews. Plaintiff Trust acquired both properties from plaintiff Raymond Hoxsie in 1993.

In October, 1994, defendant Sun contacted plaintiff Raymond Hoxsie and asserted that contamination from 92 Granite Street was impacting and interfering with remediation being undertaken by Sun at 87 Granite Street, which is down gradient in a southwesterly direction from 92 Granite Street. As a result, plaintiffs undertook an environmental investigation of 92 Granite Street in early 1995. Plaintiffs discovered two USTs, as well as soil and groundwater contamination in the form of petroleum hydrocarbons and volatile organic compounds. Plaintiffs removed the USTs and remediated the contamination to the satisfaction of the Rhode Island Department of Environmental Management ("RIDEM") by January, 1997. No evidence has been presented as to the ownership of the two discovered USTs.

In February, 1997, Sun reasserted its claim that contamination from 92 Granite Street was interfering with remediation at 87 Granite Street. As a result, plaintiffs undertook further environmental investigation at both properties. According to a report prepared by Applied Enviro-Tech, Inc. and dated June 14, 1997, the investigation revealed two primary areas of gasoline contamination: an area at 92 Granite Street known as the "PB-2" area, part of which appeared to be a former UST grave, and an area at 98 Granite Street known as the "PB-3" area, which is down gradient in a southwesterly direction from the PB-2 area. The contamination consists of volatile organic compounds existing in the soil and groundwater of both areas in excess of applicable RIDEM standards, in addition to visible but not measurable free-phase product at the PB-3 area, also a violation of RIDEM standards. As part of the investigation, a portion of the PB-2 area was excavated (the "PB-2 Test Pit"), revealing broken concrete pads saturated with product, galvanized pipe, contaminated soil and non-native soils. The excavated portion was returned to the ground after testing.

In January, 1998, as a result of this report, RIDEM required plaintiffs to submit a Corrective Action Plan ("CAP") for remediating the contamination. Plaintiffs submitted a CAP in February, 1999, which proposed the removal of contaminated soils from the PB-2 area, installation of monitoring wells and quarterly groundwater monitoring. The CAP was approved by RIDEM in March, 1999, subject to the additional requirement that the CAP be revised to address the remediation of contamination in the PB-3 area.

Plaintiffs brought suit in September, 1997, alleging that the contamination on both properties was caused by the petroleum USTs used at 92 Granite Street during the Exxon defendants' ownership. Counts I and II of plaintiffs' complaint seek an injunction pursuant to the citizen suit provision of RCRA, §§ 6972(a)(1)(A) and (a)(1)(B), requiring the Exxon defendants and the defendants who operated a franchised service station at 92 Granite Street to complete the necessary remediation at 92 and 98 Granite Street. Count III seeks damages from those defendants under R.I.Gen.Laws § 42-12-21 for past and future costs associated with the groundwater contamination and its remediation. Count IV, not at issue in this motion, seeks a declaratory judgment that the contamination at plaintiffs' properties is not interfering with remediation efforts being undertaken by Sun at 87 Granite Street.²

The Exxon defendants have brought this motion for summary judgment on Counts I, II and III. Specifically, the Exxon defendants contend that plaintiffs cannot prevail under § 6972(a)(1)(A), which requires a current violation of RCRA or corresponding regulations, because they ceased use of and removed their UST system at 92 Granite Street prior to the effective date of the regulations that are allegedly being violated. In addition, the Exxon defendants argue that plaintiffs cannot prevail under § 6972(a)(1)(B) because plaintiffs cannot, as a matter of law, establish two of three required elements, namely, that the contamination presents an imminent and substantial endangerment to health or the environment and that the Exxon defendants contributed to the contamination. Finally, the Exxon defendants contend that plaintiffs cannot prevail under R.I.Gen.Laws § 42-12-21 because plaintiffs have produced no evidence that the Exxon defendants violated the statute by polluting the groundwater at plaintiffs' property after 1980, the year in which the statute was enacted.

II. Summary Judgment Standard

Rule 56(c) of the Federal Rules of Civil Procedure sets forth the standard for ruling on a summary judgment motion:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Fed.R.Civ.P. 56(c). Thus, summary judgment may be granted when no "reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining whether summary judgment is appropriate the Court must view the facts on the record and all inferences therefrom in the light most favorable to the nonmoving party. See Continental Cas. Co. v. Canadian Universal Ins. Co., 924 F.2d 370, 373 (1st Cir.1991).

A grant of summary judgment "is not appropriate merely because the facts offered by the moving party seem most plausible, or because the opponent is unlikely to prevail at trial." Gannon v. Narragansett Elec. Co., 777 F.Supp. 167, 169 (D.R.I. 1991). At the summary judgment stage, there is "no room for credibility determinations, no room for the measured weighing of conflicting evidence such as the trial process entails, no room for the judge to superimpose his own ideas of probability and likelihood[.]" Greenburg v. Puerto Rico Maritime Shipping Auth., 835 F.2d 932, 936 (1st Cir.1987). Summary judgment is only available when there is no dispute as to any material fact and only questions of law remain. See Blackie v. Maine, 75 F.3d 716, 721 (1st Cir.1996).

III. RCRA Claims

Congress enacted RCRA, 42 U.S.C. §§ 6901 et seq., in 1976 to eliminate "the last remaining loophole in environmental law, that of unregulated land disposal of discarded materials and hazardous wastes." H.R.Rep. No. 94-1491, at 4 (1976), reprinted in 1976 U.S.C.C.A.N. 6238, 6241. On November 8, 1984, Congress enacted The...