Friday, October 06, 2006

D. Maine Holds it Has Jurisdiction to Order Parties to Clean Up Lands Owned by Non-Party to Case

Per City of Bangor v. Citizens Communications Co., 437 F.Supp.2d 180 (D.Me. Jun 27, 2006):

This matter came before the Court for the first phase of a bifurcated trial on Plaintiff City of Bangor's ("City") claims under both the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6972(a)(1)(B), and the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9607.

At the close of trial, the Court initially raised the question of standing and was especially concerned about the basis for ordering Citizens and/or the City to essentially cleanup property owned by the State of Maine (which is not a party to this particular case). (Tr. 2398-99.) The parties obliged the Court's request for briefing on this standing issue.

Having reviewed all of the helpful cases cited and discussed in the parties' briefs, the Court is satisfied that the City does, in fact, have standing to pursue a RCRA claim. Specifically, the Court is satisfied that the City has shown that it has an injury in fact, which is fairly traceable to imminent and substantial endangerment caused by PAH contamination in the Cove. Further, a RCRA injunction will redress this injury. See Osediacz v. City of Cranston, 414 F.3d 136, 139 (1st Cir.2005) (describing this "tripartite showing" as the "constitutional core of standing") (citations omitted).

Admittedly, the Court's standing concerns have been allayed in part by its findings that only particular portions of the Cove may present an imminent and substantial endangerment to health or the environment. As it turns out, the affected portions in some cases fall within the intertidal zone now owned by the City and, in most other cases, abut these City-owned areas. In those areas not currently owned by the City, the evidence suggests that blebbing and sheening may present an imminent and substantial risk that PAH contamination will move onto or otherwise adversely impact portions of the Cove owned by the City. Given this connection between the City and the contamination subject to the RCRA cleanup, there is no doubt that the City has standing to pursue a RCRA claim. See, e.g., Covington v. Jefferson County, 358 F.3d 626, 638- 40 (9th Cir.2004) (concluding that a plaintiff who lived across the street from a landfill had standing to bring a RCRA claim against the operator of the landfill); Maine People's Alliance v. Holtrachem Manuf. Co., LLC, 211 F.Supp.2d 237, 252-54 (D.Me.2002).

1 Comments:

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