Standing: The Court denied the Town’s motion to dismiss the complaint for lack of standing. She found that plaintiff has standing because he stopped walking the nature trails after learning of the contamination and is concerned that the arsenic will adversely affect other users and wildlife in the Park, and diminish its natural beauty. See pages 9-10.
RCRA Claims. The complaint asserted two RCRA claims. The first claim alleged that the Town was in ongoing violation of a regulatory requirement (prohibition against open dumping). The second claim was that the Town contributed to the past or present disposal of a solid or hazardous waste that posed an “imminent and substantial threat to health or the environment.”
The Court granted the Town’s motion to dismiss the first cause of action under RCRA 6972(a)(1)(a) because the arsenic-contaminated soil was “disposed of” at the park between April and June 2003 and there was no ongoing disposal. See pages 12 – 19. The Court found that re-exposure of arsenic to the surface during routine field play, rain or snow did not constitute “introduction” of waste under RCRA. See page 19, footnote 9. She insinuated that re-exposure of arsenic to the surface during core aeration would not constitute “introduction” of waste under RCRA. See page 19, footnote 9.
The Court denied the Town’s motion to dismiss the second cause of action under RCRA 6972(a)(1)(b) to the extent the soil might be considered hazardous waste. The judge denied this request because the soil contains at least one hazardous waste, arsenic. Moreover, the complaint alleges that environmental testing revealed that certain soil samples contain over 37 times the permissible amount of arsenic and the average concentration was 10 times the permissible maximum. These facts plausibly suggest that the soil contains levels of arsenic exceeding permissible levels.
Leave to Amend. The Court denied plaintiff’s cross-motion for leave to amend the complaint to include facts about core aeration. See pages 5-6.
Plaintiff is represented by Mindy L. Zoghlin, Bansbach Zoghlin P.C., Rochester, NY
Defendant is represented by Alan J. Knauf, Knauf Shaw LLP, Rochester, NY
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