ELR Citation: ELR 21023
No(s). 90 Civ. 5908 (S.D.N.Y. Feb 9, 1993)

The court holds that the continued presence of waste that a municipality illegally dumped in its landfill and that gradually spread onto a landowner's property without his authorization can constitute a continuing violation of the Resource Conservation and Recovery Act (RCRA) thus permitting the owner's RCRA §7002(a)(1)(A) citizen suit even if the dumping has ceased. The continued presence of the waste can constitute being "in violation" of RCRA for purposes of a §7002(a)(1)(A) citizen suit if the waste continues to cause or threaten environmental damage. The court holds that genuine issues of material fact concerning the owner's ability to demonstrate a continuing violation precludes summary judgment for the municipality. The court next holds that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) does not provide private persons a cause of action for injunctive relief that would compel removal of a hazardous waste site. CERCLA does not address injunctive relief for private individuals, and CERCLA §106(a) expressly limits injunctive relief for the abatement of imminent and substantial dangers to health and the environment to the president acting through the U.S. Attorney General. The court holds, however, that the owner may obtain injunctive relief under RCRA §7002(a) if the owner can show that he lacks an adequate remedy at law and a sufficient likelihood of irreparable harm to health or the environment in the absence of injunctive relief. The court next holds that RCRA does not authorize a citizen suit plaintiff to recover remediation costs because Congress did not intend RCRA to allow parties to pursue private remedies. The court holds, however, that the municipality may be liable under CERCLA §107(a)(4)(B) for response costs, including costs associated with preliminary site investigations and monitoring. The preliminary activities were necessary before further action could be taken.

Addressing the owner's state-law claims, the court first holds that genuine issues of fact regarding the permanence and removability of the dump preclude summary judgment on the owner's trespass and de facto taking claims. The court will permit the owner to support his state-law claims by introducing expert reports on the value of the property at the time the complaint was filed, because the violation's ongoing nature opens factual questions regarding the impact on the commercial value of the land since the waste was initially dumped in 1970. The court holds that genuine issues of fact preclude it from determining whether the municipality is subject to its own zoning restrictions as a matter of law, because the determination requires a fact-based balancing of the nature of the land use, the extent of the public interest served, and alternative sites in less restrictive zoning areas. Finally, the court holds that the landowner's payment of taxes on the land does not establish his claim of right to the land and does not negate the municipality's claim of right in its adverse possession counterclaim. Payment of taxes is material evidence to the issue of adverse possession, but it is not sufficient to defeat an adverse possession claim.

Counsel for Plaintiff
Donald Stever, Mark Rachlin
Sidley & Austin
875 Third Ave., New York NY 10022
(212) 906-2000

Counsel for Defendants
John A. Amodeo, Jerry Jackson
Skadden, Arps, Slate, Meagher & Flom
1440 New York Ave. NW, Washington DC 20005
(202) 371-7000