MEMORANDUM-DECISION and ORDER

DAVID HURD, District Judge

I. INTRODUCTION

John Lambrinos ("Lambrinos") owner of Gus' Red Hots, Inc, and Norman Landry ("Landry"), owner of The Rip Van Winkle Motel, brought suit against defendants Exxon Mobil Corporation ("ExxonMobil") and Donald Gagnier ("Gagnier"). Plaintiffs filed pursuant to the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6901, et. seq., adding supplemental state law claims for trespass, nuisance, negligence, punitive damages, and a violation of § 181 of New York State's Navigation Law ("N.Y. Nav. Law").

Pursuant to Fed.R.Civ.P. 56, plaintiffs filed a motion for partial summary judgment on the issue of defendants' liability under the RCRA and N.Y. Nav. Law. Defendants have moved for summary judgment on the RCRA claim and on the issue of punitive damages. Oral argument was heard in Albany, New York on October 24, 2004. Decision was reserved.

II. BACKGROUND

The ultimate allegation is that petroleum products, and perhaps other hazardous materials, discharged by defendants have migrated onto plaintiffs' properties and contaminated both the groundwater and soil creating continuing environmental and health risks.

Lambrino's restaurant is located at 3 Cumberland Head Road in Plattsburg, New York. It has been owned and managed by plaintiff's family since 1951. Lambrino acquired part ownership in 1974, and full ownership in 1987. Landry has operated the adjacent hotel for forty years through various expansions. Neighboring properties include, a public beach, a park, and Lake Champlain.

Defendants are the current and previous owners of the property ("subject property" or "the station") adjacent to Lambrino's at the intersection of Cumberland Head Road and State Rt. 9. In 1967, ExxonMobil purchased the subject property on which there was an existing gas station. ExxonMobil redeveloped the property and subsequently leased it to Rene Gagnier, ("Mr. Gagnier") defendant Gagnier's father, who also operated a gas station. ExxonMobil supplied Mr. Gagnier with the requisite petroleum products and was responsible for the maintenance of the underground storage tank ("UST") system. (Docket No. 47, P58; Docket No. 64, P20) During ExxonMobil's tenure of ownership in the early 1970s there was at least one reported discharge of gasoline. An estimated 3,000 gallons leaked from a UST. ExxonMobil compensated Mr. Gagnier for the lost fuel. According to deposition testimony, Plaintiff Lambrino's family, as owners of Gus' Restaurant at that time, were paid for damage the leak caused to their parking lot. ExxonMobil did not, however, investigate or remediate the effected land (Docket. No. 64, Docket No. 47 Ex. M)

Defendant Gagnier purchased the subject property from ExxonMobil in late 1986 and continued to run a gas station. He switched gasoline suppliers in 1987. ExxonMobil had no further contact with the subject property. New York State Department of Environmental Conservation ("NYDEC") Spill Reports note three spills at the station during Gagnier's tenure of ownership and operation: on August 15, 1991, May 7, 1996; and October 10, 1997. (Docket No. 73, PP 28-39)

In 1997, Gagnier attempted to sell the station. A consultant for the prospective buyer ran soil tests and then brought the results to the attention of the NYDEC which became, and remains to date, actively involved in the situation. In 1998, Gagnier effected a change of business and proceeded to use the property to run an automotive repair shop. He contracted for the removal of two 10,000 gallon USTs, one 4,000 gallon UST and one 500 gallon tank used for waste oil. NYDEC was present for the removal wherein both soil and water contamination were observable. (Docket No. 73, PP 92-93) NYDEC advised him to conduct an environmental assessment. He declined, and NYDEC hired contractors to do the assessment and remove a 4,000 gallon underground septic tank. The septic tank was "severely corroded, very thin, and pitted and perforated throughout." (Docket No. 73, P 55) NYDEC reported that it contained water, sewage, waste oil, and antifreeze.

The assessments conducted by NYDEC contractors identify two plumes of contamination running from the station onto the plaintiffs' properties, one from the area where the UST system was located, and one from the area of the removed septic tank. (Docket No. 61 Ex. D, P5) Both the soil and groundwater contain volatile organic compounds from the discharge of petroleum products. (Docket No. 47 Ex. N, P7) Plaintiffs' properties are down gradient of the station. One of the contamination plumes travels along the ground water path, which is effected by the underground sewage system that runs the length of Lambrino's property.

NYDEC managed the investigation, continued assessment of the problem, and outlined potential remediation techniques; but there is no indication that it has decided upon or begun any remediation. (Docket No. 72, P14)

The test results on various samples collected on site have been submitted with conflicting expert analysis as to the exact source, extent and timing of the contamination. As logic requires, seeing the problem differently, the parties offer differing views on the risk the contaminants pose and the remediation required.

Plaintiffs assert that "emergence of contaminated groundwater to the ground surface may cause polluted runoff and overland migration of contamination." (Docket No. 63, ¶ 8) Plaintiffs' expert, Alan Liptak, Geologist and Environmental Program Manager at Griffin International, suggests that Lake Champlain, only 2,000 feet away, may be at risk from the polluted run-off. He notes that no testing has been done to determine how far contaminants have traveled down gradient towards the lake. Id. at ¶ 5. Liptak adds that there is the possibility of human exposure to the contaminants in the business parking lots when such water surfaces. Id. at ¶ 3. He also points to ground water tests that reveal increases in ground water contamination, indicating that contaminated soils continue to impact ground water, which continues to fall below NYDEC standards. Id. at ¶ 11.

Defendants' expert Peter G. Robelen, President and Senior Geologist at GeoServices, Ltd., asserts that there is no pathway for contaminate exposure to place humans at risk; ground water run-off contamination is statistically remote; natural attenuation of the contaminants is occurring; and that Lake Champlain is not at risk due to further underground migration. (Docket No. 61 Ex. D) He adds that there have been no vapor impacts on the plaintiffs' properties, and there is no danger to humans through ingestion as the area is supplied by municipal water. Id. at 5.

II. DISCUSSION A. Summary Judgment Standard

Summary judgment may only be granted when "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 judgment as a matter of law." Fed.R.Civ.P. 56(b). The court will not try issues of fact on a motion for summary judgment, but, rather, will determine "whether the evidence presents a sufficient disagreement to require submission to a [factfinder] or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2515 (1986).

"The court may not weigh the evidence or make credibility assessments, and is required to view the evidence in the light most favorable to the party opposing summary judgment and to draw all reasonable inferences in favor of that party." 87th St. Owners Corp. v. Carnegie Hill-87th St. Corp., 251 F. Supp.2d 1215, 1217 (S.D.N.Y. 2002). See Weyant v.Okst, 101 F.3d 845, 854 (2d Cir. 1996). "The party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists and that the undisputed facts establish her right to judgment as a matter of law." Rodriguez v. City of New York, 72 F.3d 1051, 1060-61 (2d Cir. 1995).

B. Resource Conservation and Recovery Act Claim

"The RCRA is a comprehensive environmental statute that governs the treatment, storage, and disposal of solid and hazardous waste." Meghrig v. KFC Western, Inc., 516 U.S. 479, 483, 116 S.Ct. 1251, 1254, 134 L.Ed. 2d 121, 126 (1996) (citing Chicago v. Environmental Defense Fund, 511 U.S. 328, 331-32, 114 S.Ct. 1588, 1589-90 (1994)). Its purpose is to minimize the present and future threat to human health and the environment, not effectuate the clean-up of toxic waste sites or allocate those costs. 42 U.S.C. § 6902(b); See Meghrig, 516 U.S. at 483, 116 S.Ct. at 1254. The RCRA provides for citizen suits to obtain a "mandatory injunction, i.e., one that orders a responsible party to `take action' by attending to the cleanup and proper disposal of toxic waste, or a prohibitory injunction, i.e., one that `restrains' a responsible party from further violating RCRA." Id. at 484, 116 S.Ct. at 1255.

1. Plaintiffs' Motion for Partial Summary Judgment

Plaintiffs moved for summary judgment on defendants' liability under the RCRA and would leave for trial the issues of proper environmental remediation and who pays for it in what proportions. Under the RCRA's citizen suit provision plaintiffs must ultimately demonstrate that (1) the defendant was or is a generator or transporter of solid or hazardous waste or owner or operator of solid or hazardous waste treatment, storage or disposal facility; (2) the defendant has contributed or is contributing to handling, storage, treatment, transportation, or disposal of solid or hazardous waste, as defined by RCRA; and (3) that solid or hazardous waste in question may pose imminent and substantial endangerment to health or environment. Solid Waste Disposal Act, § 7002(a)(1)(B), as amended, 42 U.S.C.A. § 6972(a)(1)(B); Christie-Spencer Corp. v. Hausman Realty Co., Inc., 118 F. Supp.2d 408, 419 (S.D.N.Y. 2000) (citing Prisco v. A. D. Carting Corp., 168 F.3d 593, 608 (2d Cir. 1999)).

Plaintiffs have not met their burden in proving an undisputed imminent and substantial endangerment to health or the environment. It is true that case law provides plaintiffs with a broad standard for proving this third prong at trial. See Kara Holding Corp. v. Getty Petroleum Mktg., Inc., 67 F.Supp.2d 302, 310 (S.D.N.Y. 1999). ("The operative word in section 6972(a)(1)(B) is `may.'"). To prevail under RCRA, plaintiffs "need not establish `an incontrovertible imminent and substantial harm to health and the environment.'" Christie-Spencer, 118 F.Supp. at 419. (quoting Orange Env't, Inc. v. County of Orange, 860 F.Supp. 1003, 1029 (S.D.N.Y. 1994)). "Furthermore, `imminency' does not necessarily mean `immediately.' The Supreme Court has said that RCRA `implies that there must be a threat which is present now, although the impact of the threat may not be felt until later.'" Id. (quoting Meghrig, 516 U.S. at 484, 116 S.Ct. at 1255).

To defeat plaintiffs' motion for summary judgment defendants need only demonstrate that there is sufficient evidence that a reasonable jury could find in their favor. Anderson, 477 U.S. at 248; R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir. 1997). Defendants have provided expert testimony to the effect that while contamination has occurred, the risk posed does not rise to the level of "imminent and substantial." As noted above, their expert asserts that there is no pathway for contaminate exposure to place humans at risk; groundwater run-off contamination is statistically remote; natural attenuation is occurring; and Lake Champlain is not at risk. Resolving the conflicting expert testimony concerning the environmental consequences of the contamination requires the type of credibility assessment and risk weighing of a fact-finder; and thus summary judgment to plaintiff must be denied. See Hudson Riverkeeper Fund, Inc. v. Atlantic Richfield Co., 138 F. Supp.2d 482, 488 (S.D.N.Y. 2001) (listing RCRA decisions denying summary judgment in the face of conflicting expert testimony).

2. Defendants' Motions for Summary Judgment

Defendants have provided three possible basis for disposing of plaintiffs' RCRA claim: (1) the relief sought is not available under the RCRA; (2) defendants have provided undisputable evidence that there is no imminent and substantial threat to the environment; and (3) the claim for injunctive relief is precluded by actions taken by the NYSDEC. Each argument will be addressed, but none suffice to support granting summary judgment.

a. RCRA's Equitable Relief

Defendants express concern that damages will awarded on the plaintiffs' RCRA claim as pleaded in the complaint. Paragraph 39 of the complaint lists damages sought on the RCRA claim that "compensate them [for] all present and future damages to their respective businesses." It is true that such damages would be improper on an RCRA claim. See Meghrig, 516 U.S. at 484, 116 S.Ct. at 1254.; Commerce Holding Co. Inc. v. Buckstone, 749 F.Supp. 441, 445 (E.D.N.Y. 1990). However, the improper inclusion of unavailable damages in pleading is not fatal to the RCRA claim as a whole.

The appropriate injunctive relief was pleaded. Paragraph 39 of the complaint also includes a plea for "(b) injunctive relief enjoining and prohibiting the defendants from allowing the contamination to continue at the plaintiffs's properties, the Mobil station and surrounding areas; [and] (c) injunctive relief requiring the defendants to clean-up, remediate, purify, cleanse and/or purge the contamination from the Mobil Station, plaintiff' properties and surrounding areas." The excavation and removal of soil alone or in combination with alternative remediation techniques, sought by plaintiffs falls well within the scope of what the district court may grant under the broad authority conferred under the RCRA. See 42 U.S. § 6972(a)1(b); Kara, 67 F.Supp.2d at 310.("The language of this section of the RCRA is expansive, and is "`intended to confer upon the courts the authority to grant affirmative equitable relief to the extent necessary to eliminate any risk posed by toxic wastes.'" Dague, 935 F.2d at 1355 (quoting United States v. Price, 688 F.2d 204, 213 (3d Cir. 1982))).

In addition, in paragraph 56 of the complaint, plaintiff seeks the business damages at issue above under the § 181 N.Y. Nav Law claim. This state law claim is properly asserted under the principles of supplemental jurisdiction, 28 U.S.C. § 1367, and N.Y. Nav. Law allows successful claimants awards of "all direct and indirect damages." N.Y. Nav. Law § 181(1) (McKinney 1999).

The pleading irregularity, especially considering that appropriate relief is otherwise properly pleaded, is not a basis on which to grant summary judgment and dismiss the RCRA claim.

b. Imminent and Substantial Endangerment

Defendants also moved for summary judgment on the grounds that there are no disputed facts as to the risk posed by the contamination. They claim it does not constitute an imminent and substantial threat to public health or the environment. As noted above in considering plaintiffs' motion for partial summary judgment on the issue of defendants' liability under the RCRA, the record contains conflicting expert testimony concerning the risks posed by the contamination

Plaintiffs argue that without further testing it remains disputed just how far contaminants can migrate down gradient or overland to contaminate wetlands, utility corridors or surface waters; and that there are pathways for human exposure to the contaminants by way of run-off waters. The fact that NYDEC has invested substantial resources in an investigation and does plan to remediate, albeit at some unknown date, would itself allow a fact finder the reasonable inference of imminent and substantial endangerment.

Thus, genuine issues of material fact remain to foreclose a finding of summary judgment for the defendant. See Finley v. Giacobbe, 79 F.3d 1285, 1291 (2d Cir. 1996) ("If, as to the issue on which summary judgment is sought, there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party, summary judgment is improper.")

c. Preclusive Effect of NYDEC Actions

Defendants assert that the NYDEC's involvement makes any RCRA injunction to effect the proper handling of the site unnecessary. Congress provided for what type of state enforcement activity should preclude citizen suits in the RCRA. See § 6972 (a)(1). These enforcement actions were addressed in Kara. Kara, 67 F.Supp. 2d. at 307. After reviewing case law, the court concluded that state administrative enforcement actions do not constitute actions under § 6972(b)(2)(c) to preclude suits under the RCRA, only actions in court will suffice, and then it noted case law addressing the question of whether the state's action had to have been brought pursuant to the RCRA. These questions are beyond the instant case because there is no indication in the record that NYDEC has commenced any action of either sort. The NYDEC activity in the instant case does not fall within the ambit of the state activity that Congress intended to preclude citizen suits.

Defendants argue for dismissal on grounds beyond these Congressionally provided limitations. They assert that the claim should be dismissed because NYDEC has taken control of the remediation, and therefore injunctive relief is unnecessary. They cite 87th Street Owners Corp. for this proposition. In that case, while short on details of the actual remediation process, the NYDEC had installed and continued to operate a remedial system at the contaminated site. 87^th Street Owners Corp., 251 F.Supp2d at 1221. The plaintiffs therein were unable to demonstrate to the court that a RCRA injunction could accomplish anything more than what the NYDEC was already doing. The court granted the defendants' summary judgment on the basis that injunctive relief would not further the purposes of the statute. In the instant case, the NYDEC has not begun or adopted any remediation scheme. Here, plaintiffs have provided an entire Corrective Action Plan for remediating their properties where the NYDEC has not begun any remediation at all. Unlike 87th Street Owners Corp, there is ample room for injunctive relief beyond NYDEC efforts should plaintiffs succeed at proving imminent and substantial endangerment at trial.

Summary judgment will not be granted on these grounds as the DEC has not commenced any precluding court action or remediated to the extent necessary to make the issue of injunctive relief moot. C. New York Navigation Law Claim

New York Navigation Law § 181(1) provides that "[a]ny person who has discharged petroleum shall be strictly liable, without regard to fault, for all cleanup and removal costs and all direct and indirect damages, no matter by whom sustained." N.Y. Nav. Law § 181(1) (McKinney 1999). Section 195 of the act instructs that the law be liberally construed to effect its purpose: protecting general health, safety, and welfare of the people of this state. N.Y. Nav. Law § 195 (McKinney 1999). Plaintiffs, as injured parties, bring suit directly against defendants, alleged dischargers of petroleum, for the costs of cleanup and removal, and direct and indirect damages. N.Y. Nav. Law § 181(5) (McKinney 1999).

N.Y. Navigation Law § 172 (8) defines discharge as "any intentional or unintentional action or omission resulting in the releasing, spilling . . . or dumping of petroleum into the waters of the state or onto lands from which it might flow or drain into said waters." The rationale for finding that these persons are within the purview of the statute is that they are in a position to halt the discharge, to effect an immediate cleanup, or to prevent the discharge in the first place. State v. Montayne, 199 A.D.2d 674, 675 (N.Y.App.Div. 1993) (citing Matter of White v. Regan, 171 AD 2d. 197, 201 (N.Y.App.Div. 1991)).

Reading the three provisions cited above together, a finding of liability requires that plaintiffs demonstrate (1) defendants are dischargers under the statute; (2) a discharge occurred; and (3) the discharge contaminated plaintiffs property — to support a finding that they are an injured party. It is not necessary for this limited finding of liability to quantify the damage or allocate it between defendants.

The New York Courts of Appeals has assigned discharger status, and thus liability, to landowners who "can control activities occurring on its property and have reason to believe petroleum products will be stored there." State of New York v. Green, 96 N.Y.2d 403, 405 (N.Y. 2001) (holding faultless landlord liable for clean up costs associated with lessee's kerosene tank). From 1967 through 1986, ExxonMobil owned the station and the USTs used by the gas station. ExxonMobil supplied Gagnier with petroleum products and was responsible for maintenance, inspection, and replacement of those tanks. From 1986 through 1998 Gagnier both owned and operated the station while engaged in the business of selling petroleum products. Thus both defendants qualify as discharges for purposes of § 181 of N.Y. Nav. Law.

The second two requirements for liability will be addressed taking the defendants in turn.

As to ExxonMobil, a former employee, Henry Williams, has testified that two leaks occurred in the early 1970s. One leak from a UST and the other due to a broken swing joint in the plumbing system. The repairs were done by contractors hired by ExxonMobil. Williams testified that one of the leaks totaled around 3,000 gallons of gasoline. Gas was found pooled at the base of a utility pole on Lambrino's property. ExxonMobil compensated Gagnier for the lost gasoline and the Lambrino family for damage the leak caused to areas of the parking lot where gas had percolated through. Williams also provided Lambrino with exhaust fans to ventilate gas fumes from his basement. The record sufficiently demonstrates the occurrence of the leak and the migration of the gasoline onto plaintiffs property.

ExxonMobil relies on Hilltop Nyack Corp. v. TRMI, 272 A.D.2d 521 (N.Y, App. Div. 2000) in arguing that plaintiffs have not sufficiently proved a nexus between ExxonMobil and the contamination. In Hilltop defendants were granted summary judgment on the issue of defendants liability after making a "prima facie showing of entitlement to judgment as a matter of law." Id. at 523. After the showing that there were no issues of material fact, plaintiff could not raise a triable issue as to whether a discharge had occurred. Plaintiffs provided only an expert's "conclusory and speculative allegation." Id. The case is easily distinguished. Here plaintiffs have provided unchallenged deposition testimony by a former ExxonMobil employee with personal knowledge of a 3,000 gallon leak, efforts made by ExxonMobil to address it, and at least some effect on Lambrino's property.

Defendant ExxonMobil and plaintiffs have spent considerable effort briefing and debating the proper scientific conclusion that can be drawn from presence of lead on plaintiffs' properties. But those questions go to issues of allocation of damages after a finding of liability. The complex and hotly disputed fact questions of divisibility of harm and damages remain for resolving the contribution and indemnification claims. Defendants efforts are insufficient to raise a triable issue as to whether a discharge occurred that effected plaintiffs' properties The nature and scope of the effect is in question; but as just stated, that is a matter of damages to be argued before a fact finder deciding that distinctly separate part of the claim.

As to Gagnier, he owned and operated the station from 1986 through 1998. The record contains evidence of three petroleum spills during this time period. There is also extensive documentation demonstrating MBTE contamination from discharged unleaded gasoline. (MBTE is an additive used in unleaded gasoline.) Furthermore, there is evidence of a plume of contamination flowing from the area of the former septic tank over which Gagnier exercised control. As with defendant ExxonMobil, while there are disputed issues of fact concerning damages, plaintiffs have demonstrated that defendant discharged petroleum products that have traveled on to their properties.

Plaintiffs are entitled to partial summary judgment against both defendants under N.Y. Nav. Law § 181(1). The appropriate remedy and the amount and allocation of damages under state law remain for trial.

D. Defendants' Motion for Summary Judgment on Punitive Damages

Defendants also moved for summary judgment to dismiss plaintiffs' claim for punitive damages. Under New York law "[p]unitive damages may be awarded if the defendant's conduct was determined to be `wanton and reckless' [or] . . . `done in such a manner and under such circumstances as to show heedlessness of or utter disregard of the effect upon the rights and safety of others. . . .'" U.S. v. Hooker Chemicals Plastics Corp., 850 F.Supp. 993, 1001 (W.D.N.Y. 1994) (citing Simpson v. Pittsburgh Corning Corp., 901 F. 2d 277, 282 (2d Cir. 1990)).

Defendants cite Hooker Chemicals and point out that to be successful in demonstrating wanton and reckless conduct plaintiffs must prove that defendants acted contrary to the accepted and applicable commercial standards of conduct at that time. Defendant argues that plaintiffs' failure to plead the standards and allege particular violations is fatal to their claim, but that is not the requirement for defendants' summary judgment motion. "The party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists, and that the undisputed facts establish her right to judgment as a matter of law." Rodriguez v. City of New York, 72 F.3d at 1060-61. To dispose of the punitive damages claim, defendants bear the burden of providing undisputed facts demonstrating proper conduct. The record does not reveal any such attempt.

While significant evidentiary hurdles remain for success on the merits of plaintiffs' claim, they have alleged sufficient facts to create a genuine issue of material fact to avoid a finding of summary judgment for the defendant. See Finley v. Giacobbe, 79 F.3d at 1291. Construing the facts in a light most favorable to the plaintiffs, a reasonable fact finder could infer that both defendants demonstrated utter disregard for the safety of others.

Plaintiffs have provided evidence of ExxonMobil's knowledge of at least one significant spill during its tenure as owner and the party responsible for maintaining the UST system. Deposition testimony provides that ExxonMobil failed to take any steps to remediate the effected land (Docket No. 64, Williams Dep. Aff.) Gagnier owned and operated the subject property through three documented spills and the illegal depositing of contaminants into the septic tank. A reasonable fact finder could infer that knowledge of such spills, not followed by any investigation or remediation efforts, constitutes heedlessness of or utter disregard for the effect upon the safety of others.

The plaintiffs' common law punitive damages claim will not be dismissed at this point.

IV. CONCLUSION

Questions of fact remain as to whether the contamination at issue poses an imminent and substantial endangerment to public health and the environment such that all parties motions for summary judgment on the RCRA claim must be denied. However, plaintiffs have demonstrated defendants' liability for discharging petroleum products under N.Y. Nav. Law § 181. Finally, defendants did not provide material facts to demonstrate that plaintiffs' punitive damages claim was beyond dispute.

The issues at trial will be: (1) did either or both defendants violate RCRA; (2) if so, the appropriate injunctive relief; and (3) damages and other remedies under state law.

Accordingly, it is

ORDERED that

1. Plaintiffs' motion for partial summary judgment as to ExxonMobil's liability on the RCRA claim is DENIED;

2. Plaintiffs' motion for partial summary judgment as to Gagnier's liability on the RCRA claim is DENIED;

3. Plaintiffs' motion for partial summary judgment on the issue of defendant Exxon Mobil's liability under § 181 N.Y. Nav. Law is GRANTED;

4. Plaintiffs' motion for partial summary judgment on the issue of defendant Gagnier's liability under § 181 NY Nav. Law is GRANTED;

5. Defendants' motion for summary judgment on plaintiffs' RCRA claim is DENIED; and

6. Defendants' motion for summary judgment on plaintiffs' claim for punitive damages is DENIED.

IT IS SO ORDERED.