ELR Citation: ELR 20427
No(s). 91 Civ. 3990 (RLC) (S.D.N.Y. Oct 11, 1995)

The court holds that genuine issues of material fact preclude summary judgment on a landowner's claims under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) against New York State and state officials in connection with the dumping of waste at a landfill on her property. The landowner claimed that the state was involved in a "sting" operation on her property to gain information about the waste hauling industry in the area. The court first holds that the landowner's right to declaratory relief for future response costs includes the state defendants. The court notes that in a related decision, it held that the landowner established that the site is a facility, that there is a release or threatened release of hazardous substances, and that the landowner incurred costs responding to the release or threatened release. The court holds, however, that a genuine issue of material fact exists concerning whether the costs conform to the national contingency plan. The court, therefore, denies the landowner's cross-motion for summary judgment against the state defendants on the CERCLA claims. The court also denies the state defendants summary judgment on the landowner's CERCLA claims, because the landowner offered evidence that two alleged state officials established a sting operation at the site in their official capacities, that the operation was a source of information for the state, that state authorities were aware of the source, and that the state made use of the information.

The court denies both the landowner and the state defendants summary judgment on the landowner's claims under the Resource Conservation and Recovery Act (RCRA), because whether the state defendants qualify as operators of the site is a genuine issue of material fact. The court grants the state defendants summary judgment on the landowner's Federal Water Pollution Control Act claims, because there is no reason to believe that the defendant companies that deposited waste at the site would return. The court does not decide the parties' motions for summary judgment on the landowner's 42 U.S.C. §1983 claims, because neither side has briefed in detail whether RCRA and CERCLA are the exclusive avenues through which the landowner may assert the type of constitutional claims she alleged. Finally, the court holds that the landowner may not seek damages under CERCLA for medical expenses incurred in the treatment of personal injuries or disease, denies summary judgment on the landowner's claim for punitive damages under §1983, and rejects the landowner's generalized claim for punitive damages against state officers in their official capacities.

[Another opinion in this litigation is published at 26 ELR 20415.]

Counsel for Plaintiff
Michael V. Sclafani
Reardon & Sclafani
Three Executive Blvd., Yonkers NY 10701
(914) 376-0180

Counsel for Defendants
Dennis C. Vacco, Attorney General
Attorney General's Office
New York State Department of Law
The Capitol, Albany NY 12224
(518) 474-7124