White Plains Housing Authority v. 34 EPR, LLC

Background

White Plains Housing Authority (WPHA) sued Marianina Oil Corporation, BP Products North America Inc., and Atlantic Richfield Company over gasoline and gasoline-related contamination allegedly spreading from a former service station at 34 East Post Road in White Plains, New York, onto WPHA’s property. The opinion states that the claims against BP Products North America Inc. and Atlantic Richfield Company had already been dismissed with prejudice by stipulation and order. The claims remaining in this opinion were against Marianina.

WPHA asserted claims under the federal Resource Conservation and Recovery Act (RCRA), the New York Navigation Law, and New York common law for negligence, private nuisance, and trespass. WPHA moved for summary judgment on liability, meaning it asked the court to rule that no material factual dispute required a trial on whether Marianina was legally responsible.

Summary-Judgment Record

Marianina did not file an opposition to WPHA’s motion or a responding statement under Local Civil Rule 56.1. Instead, its counsel submitted a three-page affirmation signed by Marianina’s president, Frank Codella. The court deemed WPHA’s factual statements admitted to the extent the record supported them.

The court also excluded paragraphs 13, 14, and 16 of the Codella Affirmation. It found that Marianina had failed to disclose the information earlier as required by the federal discovery rules, gave no explanation for the late disclosure, prejudiced WPHA by presenting the information during motion briefing, and could not reasonably obtain a continuance because discovery had closed.

Although Marianina had not answered the Second Amended Complaint, the court treated its answer to the First Amended Complaint as responding to the later pleading because the later pleading had largely added allegations concerning Atlantic Richfield Company and had not meaningfully changed the allegations against Marianina.

RCRA Claim

The court held that WPHA established Marianina’s liability under RCRA section 6972(a)(1)(B). That provision allows a private plaintiff to seek relief when solid or hazardous waste may present an imminent and substantial danger to health or the environment. The court identified three requirements: the defendant must have been a generator, transporter, owner, or operator connected to the waste facility; the defendant must have contributed to the waste’s handling or disposal; and the waste must pose an imminent and substantial endangerment.

The court found that Marianina owned and sometimes operated the service station, which contained underground tanks holding gasoline. The record showed contamination in the station’s soil and groundwater, contamination moving toward WPHA’s property, and Marianina’s responsibility for maintaining the underground tanks, pipes, and monitoring system. The court also found that Marianina did not take remedial action to remove the existing contamination.

Testing showed petroleum-related contamination at levels substantially above New York State Department of Environmental Conservation standards, and the contamination had not been fully remediated. Evidence showed that the contamination plume was migrating onto WPHA’s property and was expected to reach Building 33 at concentrations that would cause vapor intrusion to tenants in approximately 6.6 years. The court concluded that the contamination posed an imminent and substantial endangerment and granted summary judgment to WPHA on its RCRA claim.

New York Navigation Law Claim

The court also granted summary judgment on WPHA’s claim under New York Navigation Law section 181. That law imposes strict liability on a person who discharges petroleum for cleanup and removal costs and direct and indirect damages. The court stated that WPHA had to show that Marianina was a discharger, that a petroleum discharge occurred, and that the discharge contaminated WPHA’s property.

The court found evidence of persistent gasoline and petroleum contamination in the soil and groundwater beneath the service station. It concluded that the contamination constituted a statutory discharge whether intentional or unintentional. The court further found that Marianina controlled activities at the station, knew or appeared to know about the contamination, and failed to take immediate action to clean all known contaminated areas. Evidence that the plume moved from the station onto WPHA’s property established the required connection between Marianina’s discharge and WPHA’s contamination.

Negligence

The court granted summary judgment on negligence. Under New York law, WPHA had to establish a duty, a breach, and injury caused by the breach. Because Marianina’s property was adjacent to WPHA’s property, the court found that Marianina had a duty to maintain its property so that contamination would not foreseeably harm WPHA’s property.

The court found that Marianina knew of contamination as early as 1994, did not fully remediate it, later learned that it had migrated onto WPHA’s property, and still failed to address it. The court concluded that this failure breached Marianina’s duty and that the undisputed investigation evidence showed the contamination migrated from the service station to WPHA’s property, causing physical and economic effects.

Private Nuisance

The court granted summary judgment on private nuisance. It found no dispute that contamination invaded WPHA’s private use and enjoyment of its property. The court concluded that Marianina’s failure to address contamination it knew about was negligent and also amounted to intentional and unreasonable conduct because Marianina had repeated opportunities to act but left the contamination unaddressed.

Trespass

The court granted summary judgment on trespass. It recognized that trespass requires an intentional invasion of another’s property and that contamination cases require an intended act producing the invasion, along with good reason to know or expect that contaminated water would pass underground to the plaintiff’s property.

The court stated that the record did not show Marianina intended or caused the initial contamination identified in 1994. It nevertheless concluded that Marianina repeatedly failed to fully remediate the contamination after learning about it, had good reason to know the contamination would migrate to WPHA’s property, and therefore satisfied the intent requirement for trespass.

Disposition

Judge Nelson S. Román granted WPHA’s motion for summary judgment on the issue of liability under RCRA, the New York Navigation Law, negligence, private nuisance, and trespass. The court did not determine damages or the available injunctive relief. It directed that discovery continue on those issues and stated that further discovery would be referred to Magistrate Judge Judith C. McCarthy.