405 F.Supp.3d 408
W.D.N.Y.2019Background
- Plaintiffs (Fresh Air for the Eastside and ~220 nearby residents) allege ongoing noxious odors, fugitive emissions (VOCs, HAPs), vectors, noise, and tremors from the High Acres Landfill in Perinton, NY that have impaired property use and value and caused health effects.
- The Landfill operates under DEC-issued landfill and air permits requiring an active landfill gas collection system; DEC assumed ~85% gas capture, with ~15% normal emissions.
- Plaintiffs allege WMNY removed planned horizontal gas collectors (cost-driven), relied on vertical wells, and that retrofitting and other operations released additional emissions; NYC began shipping large volumes of MSW by rail in 2015 and entered a 30-year disposal contract with WMNY in 2017.
- DEC issued a Notice of Violation and additional operational requirements; Plaintiffs filed >11,000 odor reports and submitted a petition to DEC; DEC imposed some obligations but denied many requested modifications.
- Plaintiffs brought citizen suits under RCRA §6972 and the CAA §7604 plus common-law claims (public & private nuisance, negligence, gross negligence, trespass) against WMNY and RCRA endangerment and public nuisance claims against NYC; both defendants moved to dismiss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of Burford/primary jurisdiction abstention to RCRA/CAA citizen suits | Citizen suits are authorized by statute after notice; federal courts must hear them and statutory bars are exclusive | State regulatory scheme and DEC activity counsel abstention or primary jurisdiction | Denied: Burford/primary jurisdiction inappropriate where citizen-suit prerequisites are met; abstention would improperly add to statutory bars |
| Colorado River abstention (parallel state proceedings) | N/A (Plaintiffs relied on federal forum) | DEC's regulatory activity warrants Colorado River abstention | Denied: no parallel state court proceedings; doctrine inapplicable |
| Political question doctrine | Plaintiffs seek judicial redress for property/public-rights harms and statutory enforcement | Defendants argue policy/regulatory questions better for agencies/other branches | Denied: disputes about nuisance, permits, and statutory compliance are judicially manageable |
| First-to-file rule (D'Amico related case) | Plaintiffs' case raises distinct/expanded issues and is properly before this court | WMNY argues D'Amico was filed earlier and addresses the same issues | Denied: both cases are in same district before same judge; first-to-file doctrine not applied |
| Government-function immunity for NYC (public entity) | Plaintiffs: NYC generated/contracted for MSW and can be liable if it contributed to nuisance and endangerment | NYC: disposal/collection is governmental function immune from tort liability | Denied as to public nuisance and RCRA endangerment: immunity does not shield a municipality that creates or contributes to a nuisance or to conduct presenting a RCRA endangerment |
| RCRA imminent and substantial endangerment (42 U.S.C. §6972(a)(1)(B)) | Plaintiffs: landfill emissions include VOCs/HAPs (benzene), cause health effects and property impacts; NYC's shipments exacerbated the problem | WMNY/NYC: odors alone insufficient; plaintiffs fail to plead imminent/substantial harm or causation by NYC | Denied: Court finds plaintiffs plausibly alleged defendants "contributed" to handling of solid waste and that emissions may present imminent and substantial endangerment; claim survives motion to dismiss |
| Private nuisance (scope/special injury) | Plaintiffs assert individualized property use/value harms supporting private nuisance | WMNY: harms affect hundreds and public spaces; too widespread for private nuisance | Granted (dismissed): private nuisance claim dismissed with prejudice because harm is widespread and functions as public nuisance |
| Public nuisance (special injury requirement and proximate cause re: NYC) | Plaintiffs: allege special injuries (property value diminution, use impairment, health effects); NYC materially contributed via MSW shipments and contract oversight | Defendants: plaintiffs lack special injury, or fail to show NYC proximately caused or controlled landfill operations | Denied (claim survives): plaintiffs adequately allege special injury relative to community at large and plausibly allege NYC contributed/proximately caused the nuisance |
| Negligence and gross negligence | Plaintiffs: WMNY owed a duty to adjacent residents, breached it by altering gas controls and mishandling odorous NYC MSW causing stigma, property loss, health impacts; gross negligence from deliberate cost-driven decisions | WMNY: damages are conclusory; stigma alone insufficient; no gross negligence facts pled | Denied: negligence and gross negligence claims plausibly pleaded at motion to dismiss stage |
| Trespass (intangible invasions) | Plaintiffs: emissions and tremors intruded on property rights | WMNY: intangible intrusions (odors, vapors, noise) do not support trespass under NY law | Granted (dismissed): trespass dismissed with prejudice because New York does not recognize trespass for intangible airspace/vapor intrusions |
Key Cases Cited
- Burford v. Sun Oil Co., 319 U.S. 315 (U.S. 1943) (framework for abstention to avoid interference with state administrative processes)
- Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (U.S. 1976) (doctrine permitting limited abstention when parallel state proceedings exist)
- PMC, Inc. v. Sherwin-Williams Co., 151 F.3d 610 (7th Cir. 1998) (refusal to apply Burford/primary jurisdiction to bar RCRA citizen suits beyond statutory exceptions)
- Chico Serv. Station, Inc. v. Sol Puerto Rico Ltd., 633 F.3d 20 (1st Cir. 2011) (reluctance to apply abstention in RCRA citizen suits; statutory bars are exclusive)
- Ky. Waterways All. v. Ky. Utils. Co., 905 F.3d 925 (6th Cir. 2018) (declining Burford where citizen-suit prerequisites met)
- Cox v. City of Dallas, Tex., 256 F.3d 281 (5th Cir. 2001) (generator liability under RCRA for contributing to improper disposal and lax oversight)
- Simsbury-Avon Pres. Club, Inc. v. Metacon Gun Club, Inc., 575 F.3d 199 (2d Cir. 2009) (expansive discussion of the "imminent and substantial endangerment" standard under RCRA)
- Meghrig v. KFC Western, Inc., 516 U.S. 479 (U.S. 1996) (context on RCRA's regulation of hazardous waste)
- Dague v. City of Burlington, 935 F.2d 1343 (2d Cir. 1991) (definition of "imminent" hazard in RCRA context)
- 532 Madison Ave. Gourmet Foods, Inc. v. Finlandia Ctr., Inc., 96 N.Y.2d 280 (N.Y. 2001) (New York public-vs-private nuisance and special injury discussion)