Opinion
009975-01
November 27, 2006, Decided
Joint motion Pursuant to CPLR 3212 by the Defendants Exxon Mobil Corporation, Exxon Corporation, Mobil Corporation, Federated Associates, LLC Federated Associates, Shell Oil Company, Motiva Enterprises, LLC, and Cumberland Farms, Inc. For Summary judgment dismissing the complaint.
Cross motion pursuant to CPLR 3212 by the plaintiff Plainview water District for partial summary judgment on its Navigation Law, public and private nuisance, and ultrahazardous activities causes of action.
The plaintiff Plainview Water District ["the plaintiff"] is a municipal water district which owns, operates and maintains some ten active wells supplied exclusively by groundwater derived from the underlying Magothy aquifer (3rd A. Cmplt., PP1-2; Holzmacher Aff., PP9-10).
Commencing in the late 1980's and 1990's, several gasoline spills were discovered at specified Shell, Exxon/Mobil and Gulf gasoline stations located as close as several hundred feet of the plaintiff's "supply wells "1-1" and "1-2". The wells allegedly draw water from "up to a mile away" and therefore include the spill locations within their so-called "zone of capture" (3rd A. Cmplt., PP2-11, 15, 20-22).
After the various discharges at issue here were reported to the New York State Department of Environmental Conservation ["DEC"], that agency commenced investigations and directed the defendants to undertake specified remedial, corrective and/or monitoring activities, which are on-going to date (see, Defs' Brief at 23-27).
The gasoline which was discharged contained an additive known as Methyl Tertiary Butyl Ether ["MTBE"], a chemical compound that is a by-product of the gasoline refining process (3rd A. Cmplt., P251). In the 1980's, MTBE was primarily utilized as a federally approved, octane-enhancing fuel additive. It was subsequently used in greater concentrations as an oxygenate in so-called "reformulated" gasoline, in order to establish compliance with certain amendments to the federal Clean Air Act (see, 42 U.S.C. §§ 7401-7671q see also, 42 U.S.C. § 7545 [k] [as amended in 1990]) (see, In re Methyl Tertiary Butyl Ether (MTBE) Products Liability Litigation, 457 F. Supp. 2d 324, 2006 U.S. Dist. LEXIS 43330, 2006 WL 1738233 Slip Opn., 1-3; 5-6 [S.D.N.Y. June 23, 2006]).
Among other things, the Clean Air Act, as amended, authorized the use of oxygenates to accomplish improved fuel burning efficiency, and thereby decrease atmospheric concentrations of ozone and carbon dioxide in specified metropolitan locations (see generally, In re Methyl Tertiary Butyl Ether (MTBE) Products Liability Litigation, 341 F. Supp. 2d 386. 392-394 [S.D.N.Y. 2004]; In re Methyl Tertiary Butyl Ether (MTBE) Products Liability Litigation, supra, 2006 U.S. Dist. LEXIS 43330, 2006 WL 1738233, Slip Opn., at 5-6; Komex Report, Defs' Exh., "25" at P1.3, at 3).
The plaintiff asserts that despite its widespread use, MBTE is a suspected carcinogen, and "very difficult and costly to remediate" since it is a volatile, "hydrophilic," water-seeking substance which travels rapidly through soil to groundwater and is very "slow to degrade or break down once it is released into the environment" (3rd A. Cmplt., PP26-28; Napoli Aff., PP11-14).
Moreover, MTBE allegedly lingers in underground aquifers for decades--far longer than other components of gasoline--and even in relatively small quantities leave a foul taste or odor in water, rendering it unusable and unfit for human consumption (Napoli Aff., PP14, 34, 52, 63; Brown Aff., P15, fn 6).
Further, and according to the plaintiff, the Underground Storage Tank systems ["UST"] used at the gasoline stations in question--and elsewhere--were substandard and incapable of preventing liquid and/or dangerous vapor releases of MTBE contaminates, thereby creating an ultrahazardous condition (Brown Aff., PP22[a]-[c]).
As a consequence, MTBE has allegedly become the "second most widespread organic pollutant" in groundwater throughout the State of New York (3rd A. Cmplt., P30), which later prompted the Legislature to prohibit its use as a fuel additive in New York (see, ECL § 19-0301 [3] [b]; New York Agriculture & Markets Law § 192-g [2]).
The plaintiff also generally alleges that, inter alia, the use of MTBE by the oil industry was considered a coup because the substance was originally seen as no more than a "waste by-product" of the refining process; that the use of MTBE in gasoline was developed and promoted by the oil industry--not the Federal government; that the oil Industry was aware of the environmental problems and risks associated with MTBE, and in particular, widespread problems arising from leaking, substandard USTs; but that instead of, inter alia, issuing appropriate warnings relating to the environmental dangers of MTBE, the industry placed MTBE-laced gasoline--at increasing concentrations--into the stream of commerce, while at the same time deceptively touting it "as an environmental blessing * * *" (3rd A. Cmplt., PP251, 253-257; 266-281; Napoli Aff., PP21-151 cf., In re Methyl Tertiary Butyl Ether (MTBE) Products Liability Litigation, supra, 2006 U.S. Dist. LEXIS 43330, 2006 WL 1738233, Slip Opn., at 2).
With respect to the subject discharges, the plaintiff claims that in August of 2002, MTBE "contamination threatening Plant 1" was detected at a peak level of 20,900 parts per billion" ["ppb"], some 2,090 times higher than the New York State maximum contaminate level for drinking standard of 10 parts per billion (Granger Aff., P27; 3rd A. Cmplt, PP7, 8, 14); that more recently, a 2005 site status report prepared by a Mobil consultant revealed increased levels of MTBE in certain station monitoring wells, as compared to results obtained in 2001 (Napoli Aff., PP158-159); and that recent detections at the other station locations have similarly revealed MTBE levels well in excess of the New York State minium standards (Napoli Aff, PP164-165; 170) (see, 10 NYCRR § 5-1.52 [Table "3"]). Based on these and other allegations of wrongdoing, the plaintiff has interposed thirteen separate causes of action, sounding in negligence; negligence per se; strict liability; ultrahazardous activity, trespass, gross negligence; private and public nuisance; trespass; Navigation Law § 181, and a claim grounded upon General Business Law § 349).
In a separately captioned heading in the complaint entitled, "Nature of the Case," the plaintiff has itself briefly summarized its claims by advising that it "seeks damages and abatement of imminent, substantial and impending harm caused by * * * [the negligent and intentional placement] of MTBE into leaking USTs piping and dispensing systems * * *" (3rd A. Cmplt., PP282-283).
Significantly, although the plaintiff contends that the discharges will eventually impact its Plant 1 wells (wells 1-1, 1-2), and in particular, that the anticipated injury will be "imminent, substantial and impending" (3rd A. Cmplt., PP12, 18, 25; Brown Aff., P65; Holzmacher, Aff., P7[e]), it is undisputed that the testing and monitoring procedures currently in place at Plant I have yet to record data establishing that the water drawn from the plaintiff's wells is actually contaminated by MTBE. (Condron Exh., "1").
Nevertheless, the plaintiff asserts that it has, in fact, sustained compensable, "actual injury" directly attributable to the allegedly imminent and impending danger of contaminate impact since, inter alia, it "has expended and will be forced to expend significant resources to safeguard its supply well system [to] install monitoring, testing remediating and other equipment, and to perform other activities indefinitely and for years and decades into the future" (3rd A. Cmplt., PP293, 333, 339, 345; Granger Aff., PP51-56).
By prior orders dated May 22, 2002 and May 11, 2004, this Court denied earlier motions to dismiss pursuant to CPLR 3211 made by, inter alia, the presently moving defendants; namely, Exxon Mobil Corporation, Exxon Corporation, Mobil Corporation, Federated Associates, LLC Federated Associates, Shell Oil Company, Motiva Enterprises, LLC, and Cumberland Farms, Inc. [collectively "the defendants"]. In denying the defendants' prior motions, and also addressing the viability of the plaintiffs' claims of impending injury, this Court observed that "a threatened injury can satisfy the present injury requirement of the torts alleged if the threat is real", and further that, "[w]hether or not * * * the threatened injuries are real[,] are issues that must be determined on the evidence, either at trial or on a summary judgment motion" (May, 2002 Order at 4).
The Court also noted (in its subsequent, March, 2004 order), that further discovery would be "required in order to make a determination on the merits of the instant action" (Order at 7).
Discovery is now essentially complete and the defendants jointly move for summary judgment dismissing the complaint.
The plaintiff opposes the motion and cross moves for partial summary judgment on its Navigation Law, public and private nuisance, and ultrahazardous activities causes of action.
In support of their motion, the defendants principally contend the plaintiff has failed to produce evidence demonstrating its 1-1 an 1-2 well locations are actually contaminated by MTBE; and (2) the plaintiff's "threatened impact" theories are predicated on speculative, hypothetical and unproven allegations that the impending harm (Defs. Brief at 12-16; Reply Brief at 1, 6-11).
The defendants further note that: (1) the DEC has already issued opinion letters advising, inter alia, that the discharges in question did not pose a threat to the plaintiff's water supply "since the groundwater in this area flows in a southwesterly direction, away from the public supply well" (Condron Aff., Exh., "17" "19"]); and (2) that the plaintiff's own supervisory personnel have issued several public statements over the years suggesting that the wells are not, in fact, in danger of being contaminated with MTBE (Condron Exh., Exh., "8" see also, Condron Exhs., "6-7, 9-10").
The plaintiff's motion should be denied. The defendants' motion is granted to the extent indicated below.
Although generally, "[c]onsequences which are contingent, speculative or merely possible are not properly considered in ascertaining injury, damages and appropriate remedy" (Askey v. Occidental Chem. Corp., 102 A.D.2d 130, 136-137, 477 N.Y.S.2d 242; cf., Niagara Mohawk Power Corp. v. Ferranti-Packard Transformers, Inc., 201 A.D.2d 902, 904, 607 N.Y.S.2d 808; State v. Fermenta ASC Corp., 166 Misc. 2d 524, 532, 630 N.Y.S.2d 884 [Supreme Court, Suffolk County 1995], affd, 238 A.D.2d 400, 656 N.Y.S.2d 342; Nalley v. General Elec. Co., 165 Misc. 2d 803, 810, 630 N.Y.S.2d 452 [Supreme Court, Rensselaer County, 1995] see, Korsinsky v. U.S. Environmental Protection Agency (EPA), ___ F.3d ___, 192 Fed. Appx. 71, 2006 U.S. App. LEXIS 21024, 2006 WL 2334976 [2nd Cir. 2006]), this Court has already held--albeit within the context of a motion pursuant to CPLR 3211--that a threatened injury may satisfy "the present injury requirement of the torts alleged if the threat is real" (May, 2002 Order of Davis, J., at 4, citing to, In re Methyl Tertiary Butyl Ether (MTBE) Products Liability Litigation, 175 F. Supp. 2d 593 [S.D.N.Y. 2001]).
The moving parties have effectively agreed that analogous federal rulings construing injury-in-fact, standing requirements imposed by Article III of the United States Constitution, are instructive in determinating whether an alleged, threatened injury is sufficiently imminent or impending (e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119 L. Ed. 2d 351 [1992]; Baur v. Veneman, 352 F.3d 625, 631-633 [2nd Cir. 2003]; Alliance of American Insurers v. Cuomo, 854 F.2d 591, 595-596 [2nd Cir. 1988]; Comsat Corp. v. F.C.C., 250 F.3d 931, 936-937 [5th Cir. 2001]; In re Methyl Tertiary Butyl Ether (MTBE) Products Liability Litigation, supra, 175 F. Supp. 2d at 609-610 (Defs' Brief at 13-14; Pltff's Main Brief, 33-25).
These holdings provide, in substance, that a claimed injury will satisfy constitutional injury-in-fact requirements where it is "Impending," and "sufficiently real and immediate"--as opposed to merely conjectural, speculative or hypothetical (Lujan v. Defenders of Wildlife, supra; Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S. Ct. 1717, 109 L. Ed. 2d 135 [1990]; Blum v. Yaretsky, 457 U.S. 991, 1000, 102 S. Ct. 2777, 73 L. Ed. 2d 534 [1982]; Korsinsky v. U.S. Environmental Protection Agency, supra; In re Methyl Tertiary Butyl Ether (MTBE) Products Liability Litigation, supra, 175 F. Supp. 2d at 607-608).
Federal courts have also "recognized that threatened harm in the form of an increased risk of future injury may serve as injury-in-fact for Article III standing purposes" (Baur v. Veneman, supra, at 633; Comsat Corp. v. F.C.C., 250 F.3d 931, 936 [5th Cir.2001] see also In re Methyl Tertiary Butyl Ether ("MTBE"), 457 F.Supp 2d 298, 2006 U.S. Dist. LEXIS 18035, 2006 WL 928997 Slip Opn., at 2 [S.D.N.Y. 2006]), and relatedly held that "'[o]ne does not have to await the consummation of threatened injury to obtain preventive relief'" (Blum v. Yaretsky, supra, 457 U.S. at 1000, quoting from, Pennsylvania v. West Virginia, 262 U.S. 553, 593, 43 S. Ct. 658, 67 L. Ed. 1117, 1 Ohio Law Abs. 627 [1923]).
Whether a threatened injury will be actionable is largely fact-driven since "[d]istinguishing between a threatened injury satisfying the injury-in-fact requirement and a speculative or hypothetical injury is a matter of degree and each case must be considered on an individual basis" (Baur v. Veneman, supra, at 631; Alliance of American Insurers v. Cuomo, supra, at 596 see also, In re Methyl Tertiary Butyl Ether ("MTBE"), supra, 2006 U.S. Dist. LEXIS 18035, 2006 WL 928997, Slip Opn., at 2 cf., Many v. Village of Sharon Springs Bd. of Trustees, 218 A.D.2d 845, 629 N.Y.S.2d 868).
Applying the facts to the legal principles discussed above, and accepting that issues of credibility and conflicting expert opinions are generally not amenable to resolution on summary judgment motion (Cooper v. City of Rochester, 16 A.D.3d 1117, 791 N.Y.S.2d 239; Pittman v. Rickard, 295 A.D.2d 1003, 1004, 743 N.Y.S.2d 795 see also, Speller ex rel. Miller v. Sears, Roebuck and Co., 100 N.Y.2d 38, 43, 790 N.E.2d 252, 760 N.Y.S.2d 79 [2003]), the Court concludes that parties' submissions raise issues of fact with respect to the imminent nature of the alleged threat (Bimbo v. Chromalloy American Corp., 258 A.D.2d 609, 610, 683 N.Y.S.2d 910).
Although the defendants' expert argues, among other things, that: (1) any contaminates beneath the stations will migrate in a south-southwest direction in accord with the natural groundwater flow away from wells 1-1 and 1-2 (McLane Aff., PP34-35); (2) that the "contributing area" from which the plaintiff's wells draw water does not extend down-gradient or beneath the service stations (McLane Aff., PP26-28; 35 McLane Reply Aff., PP4-5; 13-20); and (3) that a series of subsurface clay layers create a laterally extensive, "hydraulic barrier" preventing contaminated water from peculating downward towards deeper well source levels (McLane Aff., PP24-28, 34-36; McLane Reply Aff., PP21-24) - the plaintiffs have no less vigorously disputed the defendants' assertions and submitted diametrically opposing expert claims with respect to the allegedly imminent and impending nature of the purported threat.
Specifically, the plaintiff's experts assert, among other things, that contaminate impact is imminent, real and impending threat; (Holzmacher Aff., P80; Brown Aff., PP51, 65); that the site-specific, geological and observational information available does not support the defendants' claim that laterally extensive clay layers exist as uniformly confining, hydraulic barriers (Holzmacher Aff., PP57-62; Brown Aff., PP10-18); that relevant hydraulic analyses demonstrate, inter alia, a hydraulic interconnection between water levels at shallower, monitoring-well depths and water residing at the significantly deeper zones from which the plaintiff's wells draw their water (Brown Aff., PP19-24); that the station locations are within the well's zone of capture (Holzmacher Aff., P87); and that the defendants' reliance on a 2003 water quality report issued by the New York State Department of Health["DOH" "SWAP" report], is misplaced, since the reports's findings relating to "contributing area" delineation, were allegedly derived from a simplified and/or generalized, predictive model which does not incorporate specific observations, pertinent field data, or other locally relevant, qualifying conditions (SWAP Report, Pltff's Appendix Vol., 6, at Exh., "AAAA"; Holzmacner Aff., PP63-75; 90-93).
The plaintiff further contends, inter alia, that: (1) to the extent that certain public comments made by its personnel can be construed as suggesting that no current MTBE threat exists, those statements have been taken out of context; (2) the DEC's opinions that no harm is imminent or likely were either incorrect and/or based in part on incomplete and inaccurate information supplied by the defendants themselves; and (3) the defendants have allegedly yet to perform a proper and full site investigation, "plume delineation" and/or remediation of their properties as required by the DEC (Holzmacher Aff., PP81-86).
Although to be sure, each movant has vigorously challenged the methodologies, observational analyses and scientific conclusions reached by the opposing expert affiants, this Court cannot conclude that either set of opposing opinions is fatally conclusory, "unsupported by any evidentiary foundation" or otherwise defectively constituted as a matter of law (cf., David v. County of Suffolk, 1 N.Y.3d 525, 526, 807 N.E.2d 278, 775 N.Y.S.2d 229 [2003]).
In sum, and considering the apparent scientific complexity of projecting contaminate migration in subterranean groundwater, whether the plaintiff's wells face an impending threat of contaminate impact - and which competing predictive model will accurately foretell the consequences, if any, of the discharges - constitute disputed issues of fact which must be resolved by a jury (e.g., Wojcik v. Empire Forklift, Inc., supra, at 65; Gedon v. Bry-Lin Hospitals, Inc., 286 A.D.2d 892, 894, 730 N.Y.S.2d 641; Bimbo v. Chromalloy American Corp., supra, at 610; Abato v. Millar Elevator Service Co., 261 A.D.2d 873, 690 N.Y.S.2d 806).
The Court also disagrees with the defendants' contention that a legally redressable injury will result only if the plaintiff can currently project and demonstrate that the potentially impending contamination will exceed the applicable, "maximum contaminant level" standard imposed by law ("MCL") (Defs' Brief at 15, fn 8).
Although certain Courts have adopted the defendants' claims in this respect (see, Defs' Reply Brief at 11-12), this Court is persuaded by the reasoning employed by Judge Schiendlin's recently issued MTBE opinion, in which she concluded, inter alia, that notwithstanding that the detected levels of contamination may not exceed the MCL, a "plaintiffs' protected interests may be interfered with whenever contamination affects the quality of the water from which they supply the public * * *" (In re Methyl Tertiary Butyl Ether (MTBE) Products, 458 F. Supp. 2d 149, 2006 U.S. Dist. LEXIS 73895, 2006 WL 2884398, Slip Opn., at 3-4 [S.D.N.Y. 2006]).
The defendants also claim that, as a threshold matter, the plaintiff's demands for injunctive relief must be stricken pursuant to the so-called "primary jurisdiction" doctrine, since the relief sought would allegedly impinge upon and interfere with, the DEC's special expertise and statutory authority under the Navigation Law to oversee the remediation of oil discharges (Navigation Law §§ 171, 176, 191) (Defs' Brief at 21; Defs' Reply Brief at 23-24). The Court disagrees.
Pursuant to the primary jurisdiction doctrine, a "court, while not without authority to adjudicate the dispute declines as a matter of discretion to do so in order that the agency may have the initial opportunity to address an issue which is within the area of its expertise, and the court may thus have the benefit of the agency's wisdom before it addresses the issue" (Rockaway One Co., LLC v. Wiggins, 35 A.D.3d 36, 822 N.Y.S.2d 103, 108 [2nd Dept. 2006]; see also, Sohn v. Calderon, 78 N.Y.2d 755, 768, 587 N.E.2d 807, 579 N.Y.S.2d 940 [1991]; Staatsburg Water Co. v. Staatsburg Fire Dist., 72 N.Y.2d 147, 156, 527 N.E.2d 754, 531 N.Y.S.2d 876[1983]: Capital Telephone Co., Inc. v. Pattersonville Telephone Co., Inc., 56 N.Y.2d 11, 22, 436 N.E.2d 461, 451 N.Y.S.2d 11 [1982]; deVente v. Board of Educ., 15 A.D.3d 716, 788 N.Y.S.2d 522; Good v. American Pioneer Title Ins. Co., 12 A.D.3d 401, 783 N.Y.S.2d 841).
Keeping in mind that," [t]here is no fixed formula governing * * * [its] application to the facts of a particular case" (Heller v. Coca-Cola Co., 230 A.D.2d 768, 769, 646 N.Y.S.2d 524; Langston ex rel. Langston v. Iroquois Cent. School Dist., 291 A.D.2d 845, 846, 736 N.Y.S.2d 815), and also that, "[i]t is for the court to determine whether the doctrine is triggered" (Staatsburg Water Co. v. Staatsburg Fire Dist., supra, at 156), the Court declines to exercise its discretion by striking the injunctive relief demanded.
With respect to the injunctive relief actually sought, the complaint seeks an order, inter alia: (1) enjoining the defendants from "allowing the continued migration of MTBE into and towards the plaintiff's supply wells and water supply"; (2) requiring the defendants to "connect the plaintiff with a new primary water source" and to pay all future costs incurred by the plaintiff for public water; and (3) mandating that the defendants "pay money into a fund sufficient to clean and remediate the contamination the defendants caused to be discharged into and near the plaintiff's supply wells and water supply" (prayer for Relief at PP"e-h").
As the Court reads the plaintiff's prayers for relief, the only species of injunctive relief potentially bearing any relation to on-site remediation efforts by the Dec, is the plaintiff's generalized demand that the defendants be enjoined "from allowing the continued migration of MTBE into and towards the plaintiff's supply wells and water supply" ("Prayer for relief," P"e") (see, Good v. American Pioneer Title Ins. Co., supra, 12 A.D.3d at 402) (cf. , McLane Aff., PP36-41).
While the foregoing language is vague in its precise import, it by no means follows that fashioning a remedy based thereon will impact or interfere with on-site, DEC remediation efforts or - on the record presented here - impinge on the DEC's opportunity to address a relevant issue which is within the area of its expertise (Staatsburg Water Co. v. Staatsburg Fire Dist., supra, at 156; Rockaway One Co., LLC v. Wiggins, supra). The Court finds that none of the plaintiff's additional demands for injunctive relief as set forth in its complaint runs afoul of the primary jurisdiction doctrine (Good v. American Pioneer Title Ins. Co., supra).
Turning to the separately framed causes of actions implicated by the parties' motions, and in particular, to the plaintiff's Navigation Law claim (3rd A. Cmplt., the Court notes that pursuant to Navigation Law § 181 (1) - which is to be liberally construed "[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" (see, e.g., State of New York v. Speonk Fuel, 3 N.Y.3d 720, 723-724, 819 N.E.2d 991, 786 N.Y.S.2d 375 [2004]; State v. Green, 96 N.Y.2d 403, 406, 754 N.E.2d 179, 729 N.Y.S.2d 420 [2001]; State v. Joseph, 29 A.D.3d 1233, 816 N.Y.S.2d 214; Navigation Law § 195).
The statute, or "the Oil Spill Act" as it is often described, was enacted "to prevent the unregulated discharge of petroleum and to accomplish speedy, effective cleanups when spills occur" (State of New York v. Speonk Fuel, supra; State v. Green, supra).
The "Legislature has broadly defined those persons liable * * * [to include] 'Any 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" (Navigation Law § 181 [1] [emphasis added] see, State v. Green, supra, at 406). The Court of Appeals has also clarified that liability may be "predicated * * * on a potentially responsible party's capacity to take action to prevent an oil spill * * *" (State of New York v. Speonk Fuel, supra, at 724; State v. Joseph, supra).
The term "Cleanup and removal" is defined as encompassing, among other things, "(c) taking of reasonable measures; to prevent or mitigate damages to the public health, safety, or welfare * * *" (Navigation Law § 172 [4] see, Matera v. Mystic Transp., Inc., 308 A.D.2d 514, 764 N.Y.S.2d 458; AMCO Int'l, inc. v. Long Island Railroad Co., 302 A.D.2d 338, 340-41, 754 N.Y.S.2d 655). Further, "the investigative and monitoring costs incurred in attempting to locate and remove a substantial quantity of missing fuel oil discharged on defendant's property comes within the broad definition of 'cleanup and removal' contained in the statute" (State v. Neill, 17 A.D.3d 802, 803, 795 N.Y.S.2d 355).
Significantly, cleanup and removal costs are further defined as "all costs associated with the cleanup and removal of a discharge * * * incurred by the state or its political subdivisions or their agents or any person with approval of the department [the DEC]" (see, Navigation Law §§ 172 [5], 176 [7] [a]; Bologna v. Kerr-McGee Corp., 95 F. Supp. 2d 197, 203-204 [S.D.N.Y. 2000] see also, Atlantic Richfield Co. v. Current Controls, Inc., ___ F. Supp. 2d ___ [NOR], 1996 U.S. Dist. LEXIS 13828, 1996 WL 528601, Slip Opn., at 11 [W D.N.Y.1996]). The Act neither defines the term "approval" nor indicates precisely how it is to be secured or what particular form -if any - such an approval must take.
A review of the broadly framed provisions of the Navigation Law relating to damages, supports the conclusion that recovery may be predicated upon expenses of the sort incurred by the plaintiff - even absent an actual impact to a plaintiff's property - provided that the expenses are reasonable and appropriate within the meaning of the statute.
Notably, it is settled that an objective of the Navigation Law is to "accomplish speedy, effective cleanups when spills occur" (State of New York v. Speonk Fuel, supra, at 723). In accord with this remedial goal, Navigation Law 181 [1] expansively provides that a discharger shall be liable for "all cleanup and removal costs" and all direct and indirect damages, no matter by whom sustained, * * *" [emphasis added] (see also, Navigation Law 181 [5]).
Although Navigation Law § 172, subdivisions [4] [a] and 4 [b] define "Cleanup and removal" in terms of containment and/or removal of a "discharge," § 172 also contains a subdivision [c] which additionally and separately defines the phrase "cleanup and removal" as encompassing, "the taking of reasonable measures to prevent or mitigate damages to the public health, safety, or welfare * * *" [emphasis added]. The latter provision is cast in broad terms and makes no reference to an accompanying physical impact where a covered discharge has occurred.
A reading of the foregoing provision relating to "preventative" measures, together with subsection 181 [1] - authorizing recovery of "indirect damages" - supports the plaintiff's claim that its outlays may fall within the scope of the statute's coverage.
Here, the plaintiff's submissions have established a proximate nexus to the discharges by raising factual issues with respect to the claim that its public wells are located in close proximity to the discharge sites and have allegedly been exposed to an imminent and impending risk of MTBE contamination emanating therefrom (cf., State v. Neill, supra).
Under these circumstances - and assuming that triable issues exist as to an imminent impact - the Court does not believe that the plaintiff must await an actual and potentially damaging contaminate injury before it can takes compensable measures "to prevent or mitigate damages" to its public wells (Navigation Law § 172 [4] [c]).
Of Course, whether an impending threat of contaminate impact actually exists, and whether the responsive measures which have been undertaken are reasonable, represent disputed matters to be resolved by the trier of fact.
Lastly, the record indicates, inter alia, that the DEC regularly corresponded and cooperated with the plaintiff over the years concerning the spills (pltff's Reply Exh., "H"); that it was well aware that the plaintiff was engaged in preventative, remedial activities; and that it even sent a representative to address a "community meeting" where those measures were to be discussed (see, Exh., "H"; Granger Letters dated July 20, Aug., 8, 24, 2001). Under these circumstances, the Court disagrees that the plaintiff's Navigation Law claim is dismissible pursuant to § 174 [5], because it did not secure the DEC's formal approval before acting to protect its well sites (see, Exh.,"H"; Granger Letters dated July 20, Aug., 8, 24, 2001).
Nor have the defendants have cited any State Court authorities which mention - much less determinatively invoke - this provision as a basis for dismissing Navigation Law claims made by a party such as the plaintiff (cf., Bologna v. Kerr-McGee Corp., supra).
With respect to the plaintiff's public and private nuisance claims (9th and 10th causes of action), it has been held that, "[t]o recover damages based on the tort of private nuisance, a plaintiff must establish an interference with the use or enjoyment of land, substantial in nature, intentional or negligent in origin, unreasonable in character, and caused by the defendants' conduct" (Anderson v. Elliott, 24 A.D.3d 400, 402, 807 N.Y.S.2d 101 see, Domen Holding Co. v. Aranovich, 1 N.Y.3d 117, 123-124, 802 N.E.2d 135, 769 N.Y.S.2d 785 [2003]; Copart Indus. v. Consolidated Edison Co., 41 N.Y.2d 564, 568, 362 N.E.2d 968, 394 N.Y.S.2d 169 [1977]; Mangusi v. Town of Mount Pleasant, 19 A.D.3d 656, 657, 799 N.Y.S.2d 67 cf., Nalley v. General Elec. Co., supra). Further, "a private nuisance embraces not a mere physical injury to the realty, but any injury to the rights of the owner or possessor as to his dealing with, possessing, or enjoying such realty" (State v. Fermenta ASC Corp., supra, 166 Misc. 2d at 533).
Moreover, a claim sounding in public nuisance will lie when the offending conduct "amounts to a substantial interference with the exercise of a common right of the public" by "offending public morals, interfering with the use by the public of a public place or endangering or injuring the property, health, safety or comfort of a considerable number of persons" (532 Madison Ave. Gourmet Foods, Inc. v. Finlandia Center, Inc., 96 N.Y.2d 280, 292, 750 N.E.2d 1097, 727 N.Y.S.2d 49 [2001]). It may be abated or prosecuted "by the proper governmental authority" (Copart Indus. v. Consolidated Edison Co. of N.Y., supra, at 568 see, 532 Madison Ave. Gourmet Foods, Inc. v. Finlandia Center, Inc., supra).
Significantly, "there is no requirement that the State prove actual, as opposed to threatened, harm from the nuisance in order to obtain abatement," although "[w]hen a harm feared does not yet exist the State must show a menace of imminent and substantial import to the public welfare * * *" (State v. Fermenta ASC Corp., supra, 166 Misc. 2d at 531-532; Nalley v. General Elec. Co., supra cf., State v. Ferro, 189 A.D.2d 1018, 592 N.Y.S.2d 516 see, State of N.Y. v. Shore Realty Corp., 759 F.2d 1032, 1051 [2nd Cir. 1985]).
The Second Circuit has held - and this Court agrees - that "the release or threat of release of hazardous waste into the environment unreasonably infringes upon a public right and thus is a public nuisance as a matter of Law" (State of N.Y. v. Shore Realty Corp., supra, at 1051 [2nd Cir. 1985]; In re Methyl Tertiary Butyl Ether, supra, 175 F. Supp. 2d at 606 see, State v. Schenectady Chemicals, Inc., 103 A.D.2d 33, 37, 479 N.Y.S.2d 1010; In re Methyl Tertiary Butyl Ether (MTBE) Products Liability Litigation, supra, 175 F. Supp. 2d at 629; Order of Davis J., dated May, 2002, at 10-11).
Additionally, case law supports the plaintiff's contention that a viable nuisance claim will be stated, where, as here, the plaintiff has made "a competent evidentiary showing of an imminent threat of contamination" or "at the very least, a reasonable probability and expectation of contamination in the future" (Nalley v. General Elec. Co., supra, 165 Misc. 2d at 810; State v. Fermenta ASC Corp., supra, 166 Misc. 2d at 533).
Lastly, upon a review of the plaintiff's submissions depicting its statutory derivation and municipal status (see, Pltff's Brief at 21-23; Granger Aff., P4), the Court is satisfied that the plaintiff has demonstrated that it possesses the requisite governmental authority to maintain the subject nuisance action on behalf of the general public (Pltff's Brief at 21-23); and also that, when favorably construed, its prayer for relief - does, in fact, generally seek injunctive relief, which the Court will construe as referable to the previously interposed nuisance claims.
Summary judgment is unwarranted, however, inasmuch as the record presents issues of fact with respect to the plaintiff's claim of imminent and/or impending harm (Bimbo v. Chromalloy American Corp., supra, 258 A.D.2d at 610).
The plaintiff's thirteenth cause of action sounds in violation of General Business Law § 349, and alleges that the defendants engaged in materially deceiving, deceptive and misleading advertising and other acts in marketing gasoline containing MTBE, which proximately caused and continued to cause the plaintiff to incur significant expanses to safeguard its supply well system (Cmplt., PP370-373).
The Court of Appeals has held that, "[i]n order to make out a valid section 349 claim, a plaintiff must allege both a deceptive act or practice directed toward consumers and that such act or practice resulted in actual injury to a plaintiff,"--although actual injury does not "necessarily [mean] pecuniary harm" (Blue Cross and Blue Shield of N.J., Inc., v. Philip Morris USA Inc., 3 N.Y.3d 200, 205, 818 N.E.2d 1140, 785 N.Y.S.2d 399 [2004]; Stutman v. Chemical Bank, 95 N.Y.2d 24, 29, 731 N.E.2d 608, 709 N.Y.S.2d 892 [2000]; Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 25, 647 N.E.2d 741, 623 N.Y.S.2d 529 [1995]; Canario v. Gunn, 300 A.D.2d 332, 751 N.Y.S.2d 310). "Actual harm" within the context of a GBL § 349 claim does not "necessarily [mean] pecuniary harm" (Stutman v. Chemical Bank, supra, at 29).
"[T]he scope of the statute is intentionally broad, applying to virtually all economic activity' "(Goshen v. Mutual Life Ins. Co., of N.Y., 98 N.Y.2d 314, 324, 774 N.E.2d 1190, 746 N.Y.S.2d 858 [2002], quoting from Karlin v. IVF Am., 93 N.Y.2d 282, 290, 712 N.E.2d 662, 690 N.Y.S.2d 495 [1999]).
While the defendants contend, inter alia, that the foregoing claim is defective as a matter of law since the "actual injury" requirement imposed by the statute has not been satisfied, this Court - in its unappealed May 22, 2002 order - has already reviewed the same factual claims made here and concluded that they were sufficient to satisfy the injury dictates of GBL § 349 (Order at 9-10 see also, 3rd A. Cmplt., P373), i.e., this Court has determined that expenses incurred for, inter alia, "periodic water testing and monitoring" constitute actual injuries so as to support a damage claim under GBL § 349 (Order at 10).
Further, in MTBE I, Judge Schiendlin persuasively concluded, among other things, that actionable, deceptive conduct within the meaning of GBL § 349 was demonstrated based upon factual allegations very similar to those made at bar (In re Methyl Tertiary Butyl Ether (MTBE) Products Liability Litigation, supra, 175 F. Supp. 2d at 630-632).
The Court agrees, however, that the plaintiff's prayer for relief does not appear to contain a decretal paragraph which expressly requests injunctive relief restraining any of the specific, deceptive practices identified in the plaintiff's complaint and accompanying submissions (see, GBL § 349 [h]).
The plaintiff's seventh cause of action alleges, in sum, that the release, use and storage of MTBE laced gasoline constitutes an ultrahazardous activity since, inter alia, the underground storage tanks ["UST"] used by at the station sites were not "liquid-tight and vapor-tight" and therefor incapable of safely storing gasoline containing MTBE (3rd A. Cmplt., PP329-336)(Brown Aff., PP22-25).
Whether something is an ultrahazardous activity is determined by the consideration of a number of factors suggested by in the Restatement of Torts Second § 520 including: (a) existence of a high degree of risk of harm to the person, land or chattels of others' (b) likelihood that the harm that will result from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) the extent to which its value to the community is outweighed by its attributes (Doundoulakis v. Town of Hempstead, 42 N.Y.2d 440, 448, 368 N.E.2d 24, 398 N.Y.S.2d 401 [1977]; Wanich v. Bitter, 12 Misc. 3d 1165(A), 820 N.Y.S.2d 847, 2006 NY Slip Op 51062(U), at 7-8, 2006 WL 1547566 [Supreme Court, Nassau County 2006] see, Hilltop Nyack Corp. v. TRMI Holdings, Inc., 264 A.D.2d 503, 505, 694 N.Y.S.2d 717; Searle v. Suburban Propane Div. of Quantum Chemical Corp., 263 A.D.2d 335, 339-340, 700 N.Y.S.2d 588).
Notably, where the evidence supports a finding that the dangers associated with the activity in question can be eliminated or diminished with the exercise of reasonable care, dismissal is appropriate, since an activity which can be safely performed generally will not be deemed to be ultrahazardous (DeFoe Corp. v. Semi-Alloys, Inc., 156 A.D.2d 634, 549 N.Y.S.2d 133 see generally, Fletcher v. Conoco Pipe Line Co., 129 F. Supp. 2d 1255, 1261 [W.D. Mo. 2001]; National R.R. Passenger Corp. v. New York City Housing Authority, 819 F. Supp. 1271, 1279 [S.D.N.Y. 1993]).
Here, and upon balancing the relevant factors, the Court agrees that the evidence presented falls short of establishing that the storage of gasoline containing MTBE constitutes an ultrahazardous activity. Additionally, the Court finds that the overall inference to be drawn from the plaintiff's expert submissions, is that by adopting reasonable precautions and utilizing properly constructed and designed tanks, the defendants could effectively have prevented tank failure, leakage and contamination (DeFoe Corp. v. Semi-Alloys, Inc., supra; Shell Oil Co., 180 F. Supp. 2d 313, 325 [D. Conn. 2002] see also, Biniek v. Exxon Mobil Corp., 358 N.J. Super. 587, 818 A.2d 330, 339-340 [N.J. Superior Court, 2002]; 750 Old Country Road Realty Corp. v. Exxon Corp., supra see, Restatement of Torts, Second § 520 [c]).
Lastly, the Appellate Division has clearly held - albeit without express reference to MTBE - that "the storage of gasoline does not constitute an ultrahazardous activity for which strict liability for contamination will attach" (750 Old Country Road Realty Corp. v. Exxon Corp., supra; Searle v. Suburban Propane Div. of Quantum Chemical Corp., supra see also, Biniek v. Exxon Mobil Corp., supra, 818 A.2d at 338 (observing that "[t]he majority of jurisdictions deciding this issue have held that gasoline storage and transport is not an ultrahazardous activity deserving of strict liability"] cf., Snyder v. Jessie, 164 A.D.2d 405, 412, 565 N.Y.S.2d 924).
Accordingly, the plaintiff's seventh cause of action sounding in strict liability based on an ultrahazardous activity, is dismissed.
The plaintiff's fifth and ninth causes of action allege, respectively, claims sounding in "failure to warn" and strict products liability based on, inter alia: (1) the defendants' failure to warn the plaintiff of the hazards posed by their storage of MTBE laced gasoline in close proximity to the plaintiff's supply wells (3rd A. Cmplt., PP315-316); and (2) the defectively designed nature of gasoline containing MTBE (3rd A. Cmplt., P331).
As to the plaintiff's ninth cause of action sounding in strict products liability and defective design, it is settled that "[m]anufacturers of defective products may be held strictly liable for injury caused by their products--meaning that they may be liable regardless of privity, foreseeability or reasonable care" (Sprung v. MTR Ravensburg, Inc., 99 N.Y.2d 468, 472, 788 N.E.2d 620, 758 N.Y.S.2d 271 [2003] see, Speller ex rel. Miller v. Sears, Roebuck and Co., supra, 100 N.Y.2d at 40; Denny v. Ford Motor Co., 87 N.Y.2d 248, 257, 662 N.E.2d 730, 639 N.Y.S.2d 250 [1995]; Codling v. Paglia, 32 N.Y.2d 330, 342, 298 N.E.2d 622, 345 N.Y.S.2d 461 [1973]).
"'A product may be defective when it contains a manufacturing flaw, is defectively designed or is not accompanied by adequate warnings for the use of the product" (Speller ex rel. Miller v. Sears, Roebuck and Co., supra, 100 N.Y.2d at 41, quoting from, Liriano v. Hobart Corp., 92 N.Y.2d 232, 237, 700 N.E.2d 303, 677 N.Y.S.2d 764 [1998]).
In moving to dismiss, the defendants primarily argue that the leaked product was never used for its intended purpose (i.e., as a motor fuel); rather, it literally "escaped" before it could be used as a fuel by any end consumer (Defs' Brief at 28).
In its May 22, 2002 order, however, this Court considered and rejected the foregoing claim; namely, that since the leaked gasoline was never used as a fuel by an "end consumer," the plaintiff's claims are not actionable and/or cognizable under a strict products theory of recovery.
Specifically, and in denying the defendants' prior motion to dismiss, the plaintiff's strict liability claims, this Court expressly observed that the defendants "took a narrow view by focusing upon MTBE-gasoline's suitability for use as a motor fuel. The inherent danger of the MTBE additive is not assessed solely based upon its intended use. The effects of its introduction into the environment by accidental discharge, or otherwise, must be considered as well" (Order at 9).
It also bears noting that in MTBE I, Judge Schiendlin upheld the viability of a very similar strict products theory, one in which - as here - the plaintiffs also alleged, inter alia, that the defendants knew of the unreasonable dangers associated with gasoline containing MTBE; that they concealed those dangers; and that "the use of MTBE and defendants' introduction of gasoline containing MTBE into the stream of commerce was a proximate cause of the contamination of their wells" (In re Methyl Tertiary Butyl Ether, supra, 175 F. Supp. 2d at 624 ["These allegations are sufficient to state a claim for * * * strict liability for design defect * * *"]).
In sum, the Court agrees that the defendants have failed to establish their respective entitlement to judgment as a matter of law dismissing the ninth cause of action and that questions of fact relative to, inter alia, the imminence of the impending injury preclude any award of judgment to the plaintiff.
With respect to the fifth (duty to warn) cause of action, it is settled that "adequacy of the warning in a products liability case based on a failure to warn" as well as "the type of notice required under the circumstances, the obviousness of the danger and the extent of plaintiff's knowledge of the danger is, in all but the most unusual circumstances, a question of fact to be determined at trial" (Repka v. Arctic Cat, Inc., 20 A.D.3d 916, 918, 798 N.Y.S.2d 629; Cooley v. Carter-Wallace, Inc., 102 A.D.2d 642, 647, 478 N.Y.S.2d 375 see, Liriano v. Hobart Corp., supra, 92 N.Y.2d at, 241; Chien Hoang v. ICM Corp., 285 A.D.2d 971, 972, 727 N.Y.S.2d 840; Smith v. Minster Mach. Co., 233 A.D.2d 892, 894, 649 N.Y.S.2d 257; Frederick v. Niagara Mach. & Tool Works, 107 A.D.2d 1063, 1064, 486 N.Y.S.2d 564 see, In re Methyl Tertiary Butyl Ether ("MTBE") Products, supra, 175 F. Supp. 2d at 626-627).
Here, the Court agrees that questions of fact exists with respect to, inter alia, the issues of proximate cause (Speller ex rel. Miller v. Sears, Roebuck and Co., supra); the type of notice required under the circumstances (Chien Hoang v. ICM Corp., supra); and "obviousness of the danger and the extent of plaintiff's knowledge of the danger" (Smith v. Minster Mach. Co., supra; Frederick v. Niagara Mach. & Tool Works, supra see also, In re Methyl Tertiary Butyl Ether, supra, 175 F. Supp. 2d at 626 [sustaining duty to warn theory on similar facts, although describing the claim as an "uphill battle"]).
As to the plaintiff's remaining claims - i.e., the first through fourth, sixth and eighth causes of action alleging trespass and negligence in various legal and factual permutations - the defendants have not provided case law analysis or factual discussion separately addressing the specific components of each tort and the precise manner in which each is allegedly deficient as a matter of law.
Accordingly, the defendants have failed to carry their burden of demonstrating entitlement to judgment as a matter of law in connection with these remaining theories of recovery (Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 853, 476 N.E.2d 642, 487 N.Y.S.2d 316 [1985]; Simmons v. Pantoja, 25 A.D.3d 777, 807 N.Y.S.2d 577 [2nd Dept. 2006]).
Lastly, some five years after commencement of the action, the plaintiff now advises that in July of 2006, MTBE was detected in vertical profile boring samples taken some 200 feet from its "Plant 5" - a down-gradient well site over 6,000 feet south of the releases which has not previously figured in this litigation (Pltff's Apdx Vol., 6. Exh., "KKKK"; Napoli Aff., P3; Pltff's Main Brief at 1, fn 1; Pltff's Reply Brief at 5, fn 4 see also, Holzmacher Aff., P54).
Prior to this discovery, the plaintiff has charted a litigation course which focused solely on the alleged impending impact to wells 1-1 and 1-2 (3rd A. Cmplt., PP2, 5, 20), and the affidavits, memoranda of law and expert opinions have clearly have been drafted with this underlying assumption in mind.
Nor is it entirely clear that the plaintiff is formally asserting a claim based upon alleged actual or impending impacts to Plant 5 - or precisely what probative import the plaintiff is claiming should be attributed to its "Plant 5" revelations. If bears noting in this respect that the plaintiff has readily conceded that it is "premature to state with scientific certainty that this contamination is related to the defendants' gasoline stations" (Pltff's Brief at 1, fn 1; Pltff's Reply Brief at 5, fn 4).
In any event, the plaintiff's inconclusive submissions with respect to Plant 5 are not determinative of any of the issues considered by the Court in connection with the parties' currently pending applications.
The Court has considered the parties' remaining contentions and concludes that none warrants the granting of relief in excess of that discussed above.
Accordingly, it is,
ORDERED that the joint motion pursuant to CPLR 3212 by the defendants Exxon Mobil Corporation, Exxon Corporation, Mobil Corporation, Federated Associates, LLC Federated Associates, Shell Oil Company, Motiva Enterprises, LLC, and Cumberland Farms, Inc., for summary judgment dismissing the complaint, is granted to the extent that the seventh cause of action sounding in ultrahazardous activity is dismissed, and the motion is otherwise, denied, and it is further,
ORDERED that the cross motion by plaintiff Plainview Water District for partial summary judgment pursuant to CPLR 3212 on its Navigation Law, public and private nuisance, and ultrahazardous activities causes of action, is denied.
The foregoing constitutes the decision and order of the Court.