ELR Citation: ELR 20547
No(s). 93-188-P-DMC (D. Me. Aug 17, 1994)

The court denies summary judgment on Resource Conservation and Recovery Act (RCRA), Federal Water Pollution Control Act (FWPCA), Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and state common-law claims that landowners brought against a company that disposed of industrial waste at a local landfill. The court first holds that neither the landowners nor the company are entitled to summary judgment on the landowners' imminent and substantial endangerment claim under RCRA. The landowners complied with RCRA's notice and delay provisions, and the state's action to restrain or abate the conditions that may present the alleged endangerment does not preclude their citizen suit. But a material issue of fact exists on whether the landfill may currently present the endangerment. The Maine Department of Environment Protection found that groundwater at the site perimeter meets federal drinking water standards, but contaminants continue to exist in the soil and have migrated into the groundwater. The court next holds that the landowners complied with RCRA §7002(b)(1)(A)'s prefiling notice requirement for their claim that the company violated RCRA's closure and postclosure requirements. Also, §7002(b)(1)(B)'s preclusion clause does not bar that claim, because the record is devoid of any suggestion that Maine has commenced a court action against the company. But no direct action lies under §7002(a)(1)(A) because Maine's authorized hazardous waste program has superseded the RCRA closure and postclosure provisions that the company allegedly violated. The court holds, however, that the Maine program has adopted and incorporated the federal closure and postclosure requirements of 40 C.F.R. §264.310. Because the closure and postclosure requirements of §264.310 speak in terms of final closure and the landowners have not made any showing that this stage has been reached, the court denies summary judgment for both the landowners and the company to the extent this claim alleges a violation of the regulation as incorporated into the state's program. To the extent the claim alleges violations of RCRA and other provisions of 40 C.F.R. §264, the court grants summary judgment for the company.

The court next holds that the landowners complied with the notice and service requirements of the FWPCA for their FWPCA §301(a) claim that leachate from the landfill is being discharged through point sources to navigable U.S. waters without the proper permit. The court also holds that the state's administrative actions relating to the site do not bar the landowners' FWPCA claim, because Maine has not undertaken any administrative action under its clean water legislation. Maine's current administrative actions relate to the general management of the site as a hazardous substance site, and not to the specific concerns surrounding the discharge of pollutants into water. The court, however, denies summary judgment on this claim, because the testimony of the landowners' expert does not establish that leachate is actually flowing from the site or that the leachate is flowing through point sources. And the company's experts have not ruled out the possibility of leachate flowing from the site, the landowners' expert testified that an oxidized discoloration at the site perimeter indicates leachate, and the existence of man-made drainage areas is undisputed.

The court holds that the landowners have pleaded their CERCLA claim for recovery of response costs with sufficient particularity. While they must allege that they personally incurred response costs, as they have done, they need not particularize those costs. Their allegation that they personally incurred costs in responding to the threatened migration of hazardous waste from the site was sufficient to give the company fair notice of their claim. The court, however, grants the company summary judgment with respect to the landowners' claim for recovery of medical monitoring expenses under CERCLA, because only the government may recover the cost of medical monitoring. Costs associated with the sampling and testing of the alleged contamination from the site, though, would be recoverable.

The court rejects the company's request that it refuse to exercise pendent or supplemental jurisdiction over the landowners' state-law claims. The exercise of supplemental jurisdiction over the landowners' state-law claims is appropriate, because the trial is set to begin in four months, the bulk of the landowners' four federal claims have survived summary judgment, and the state-law claims derive from a common nucleus of operative facts. In addition, the five state-law claims, sounding in strict liability and negligence, do not substantially predominate over the four distinct federal strict liability claims, nor do they present novel or complex issues of law. Also, the court, sitting in Maine and being familiar with Maine law, is competent to make a determination based on Maine law whether the landowners may assert specific claims under state law. The fact that the remedies available on the state-law claims differ from those available on the federal claims does not mean that the state claims substantially predominate over the federal claims. And the parties may easily direct the resolution of the nonjury federal issues to the court after the presentation of the entire case without likely causing juror confusion.

The court next holds that Maine's six-year statute of limitations does not bar the landowners' claim that the presence of the company's waste on their property constitutes a continuing trespass. To the extentthat the landowners can show that wastes from the site continue to be present on their land, they can maintain an action for continuing trespass under Maine law, because that tort would be continually occurring for statute of limitations purposes. The court holds that the landowners have alleged facts sufficient to make out a prima facie case of trespass under Maine law. The court also holds that the statute of limitations does not bar the landowners' claim that the site constitutes an ongoing private nuisance as long as the nuisance continues unabated, because Maine law recognizes a damages claim for a continuing private nuisance. The court denies the company summary judgment on the landowners' claim that the disposal and storage of hazardous waste at the site constitutes an ultrahazardous activity for which the company is strictly liable, because Maine would likely recognize a cause of action for strict liability for the disposal and storage of hazardous waste. The court holds that the statute of limitations bars the landowners' claims, based on alleged 1978 and 1986 waste migrations, that the company negligently disposed of and stored waste at the site, but it does not bar a negligence claim based on an alleged 1992 migration to the extent that migration is separate and distinct from the earlier migrations. The court grants the company summary judgment on the landowners' claim that the company failed to warn them of the hazards the site posed, because the landowners failed to identify the legal obligation that purportedly imposed on the company the duty to warn them of those dangers. But it denies the company's request for a limitation of permanent damages on the landowners' continuing nuisance and trespass claims. Finally, it strikes the landowners' claims for damages for the risk of future adverse health effects, because the risk of future adverse health effects is too speculative, but it holds that emotional distress damages in connection with the landowners' negligence claim are recoverable.

Counsel for Plaintiffs
Marcia J. Cleveland
Four Union Park, Brunswick ME 04011
(207) 721-9737

Counsel for Defendants
Constance P. O'Neil
Conley, Haley & O'Neil
30 Front St., Bath ME 04530
(207) 443-5576