United States District Court, D. Rhode Island
MEMORANDUM OF DECISION
MARY M. LISI, District Judge.
This case, a citizen enforcement action under the Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq. (1972), is the culmination of a longstanding and bitter dispute between neighbors. The plaintiffs, Louis Paolino ("Paolino") and his wife, Marie Issa ("Issa", together with Paolino, the "Plaintiffs"), own a parcel of property (the "Paolino Property") which abuts a 39-acre site (the "Property") in Cumberland, Rhode Island, that is owned by the defendants JF Realty, LLC, ("JF Realty") and operated as an automobile recycling business by LKQ Route 16 Used Auto Parts, Inc., d/b/a Advanced Auto Recycling ("LKQ"). Both properties are part of a former pig farm and illegal dump site, as a result of which they have a history of significant environmental contamination. The other named defendant is Joseph I. Ferreira ("Ferreira, " together with JF Realty and LKQ, the "Defendants"), who is sued both in his individual capacity and as the trustee of the Joseph I. Ferreira Trust (the "Trust"). Ferreira, who acquired the Property in 1983, is the only member of JF Realty.
The Plaintiffs bought the Paolino Property in December 1985, approximately a year after Ferreira had begun to use the abutting 39-acre Property for an automobile salvage business. According to the Complaint, the Defendants lack a valid Rhode Island Pollutant Discharge Elimination System ("RIPDES") permit issued in the Property owner's and/or operator's name, Complaint ¶¶ 56-59; contaminated stormwater runoff is being discharged from the Property into United States waters, resulting in violations of the CWA, Complaint ¶ 1; and the improper treatment of such stormwater on the Property has also led to contamination on the Paolino Property. Complaint ¶ 46.
After years of litigation in both state and federal courts, the parties presented their respective positions to this Court in a seven-day trial without a jury. After reviewing all the evidence presented in this case, the matter is now ready for a determination.
I. Procedural History
The underlying facts and the lengthy and complicated procedural history of this case have been repeatedly related in some detail, see e.g., Paolino v. JF Realty, 710 F.3d 31, 35-37 (1st Cir. 2013); Paolino v. JF Realty, C.A. No. 12-39-ML, 2012 WL 3061594 (D.R.I. July 26, 2012); LM Nursing Service, Inc. v. Ferreira, No. 09-cv-413-SJM-DLM, 2011 WL 1222894 (D.R.I. Mar. 30, 2011). Therefore, the Court will only highlight some of the events pertinent to the current posture of the case.
This is the third time the Plaintiffs have filed a citizen suit under the CWA against the Defendants. The first complaint was filed in 2006 in Rhode Island state court and removed to this Court on September 4, 2009, after the Plaintiffs' fourth amendment to their state court complaint included claims under various federal environmental statutes. On March 30, 2011, that complaint was dismissed, in part, for lack of proper notice, and all state claims were remanded to state court. LM Nursing Service, Inc. v. Ferreira, No. 09-cv-413-SJM-DLM, 2011 WL 1222894 (D.R.I. Mar. 30, 2011). The Plaintiffs filed a complaint in this Court on June 6, 2011, which the Court dismissed without prejudice in August 2011, pursuant to the parties' stipulation of dismissal. On January 20, 2012, the Plaintiff filed the instant Complaint.
The Court dismissed the Complaint on July 26, 2012 for defective pre-suit notice, see Paolino v. JF Realty, C.A. No. 12-39-ML, 2012 WL 3061594 (D.R.I. July 26, 2012); the dismissal was subsequently reversed by the First Circuit Court of Appeals on March 13, 2013. Paolino v. JF Realty, 710 F.3d 31, 35-37 (1st Cir. 2013). However, the dismissal of all claims against Robert Yabroudy, Ferreira's business manager, for lack of proper notice was upheld. Id.
After the case was remanded, the Court issued a pretrial order, pursuant to which Plaintiffs' expert witnesses and their reports were to be disclosed by February 28, 2014; all expert discovery was to be closed by May 30, 2014. (Defendants' expert witness disclosures were due by March 31, 2014.)(Dkt. No. 23).
On May 31, 2013, the Plaintiffs sought recusal of the undersigned for a variety of reasons (Dkt. No. 21); the Court, finding no merit in any of those asserted reasons, denied the motion on June 25, 2013. Paolino v. JF Realty, C.A. No. 12-39-ML, 2013 WL 3233296 (D.R.I. June 25, 2013). The Defendants' subsequent motion to dismiss all claims against Ferreira was denied on July 24, 2013. Paolino v. JF Realty, C.A. No. 12-39-ML, 2013 WL 3867376 (D.R.I. July 24, 2013). On August 8, 2013, the Court granted the Defendants' motion to strike the Plaintiffs' jury demand. (Dkt. No. 33).
The parties then engaged in, at times, contentious discovery. See, e.g. Memorandum and Order dated July 2, 2014 (Dkt. No. 73), denying as untimely Plaintiffs' motion for leave to compel production of documents (Dkt. No. 46) and motions to compel answers to interrogatories and production of documents (Dkt. Nos. 44, 45).
On February 19, 2014, the Plaintiffs sought an order compelling the Defendants to allow the Plaintiffs, their attorneys, and their expert witness to inspect the Property on the ground that "Plaintiffs' expert witness needs to conduct this inspection to assist in formulating his opinion." (Dkt. No. 38). The Defendants objected to Plaintiffs' motion, noting that, on December 24, 2013, Plaintiffs had served a request for entry upon land in which they sought to inspect the entire 39-acre Property, including the interiors of all buildings. (Dkt. No. 40 at 2). According to the Defendants, they indicated to the Plaintiffs that they did not object to an inspection altogether, and they asked the Plaintiffs to narrow the scope of their request and identify the purpose for which the request was made. Id . The Plaintiffs renewed their request on January 17, 2014, again seeking to inspect the land and the interior of the structures, which resulted in further correspondence from the Defendants requesting the Plaintiffs to narrow their request. Id. at 3.
The Plaintiffs' motion was granted, in part, on April 7, 2014, pursuant to which the Plaintiffs, their attorneys, and no more than two consultants were permitted to enter the Property for up to three hours. In addition, one of Plaintiffs' attorneys and one consultant were permitted to enter the interior of certain structures on the property. Order dated April 7, 2014 (Dkt. No. 43). In the interim, on March 28, 2014, the Defendants sought a 30-day extension for their expert disclosures, which was granted. (Dkt. No. 42, Text Order March 31, 2014).
On June 13, 2014 (the deadline for the filing of dispositive motions), at 4:41 p.m., the Defendants filed a motion for summary judgment (Dkt. No. 49). On the same day, at 4:50 p.m., shortly after the Defendants filed their motion for summary judgment, the Plaintiffs filed a motion for leave to serve a revised expert report, (Dkt. No. 50), on the grounds that the Plaintiffs had not been able to gain entry to the Property until April 28, 2014 (following the Plaintiffs' motion to compel such access, filed on February 19, 2014).
The Defendants objected to this request on June 30, 2014 (Dkt. No. 56), together with a motion to (1) strike the Plaintiffs' supplemental expert report, and (2) preclude Plaintiffs' expert, Dr. Robert M. Roseen ("Dr. Roseen") from offering testimony in opposition to the motion for summary judgment or at trial. (Dkt. No. 57). The Defendants noted that, on February 28, 2014, the deadline for the Plaintiffs' expert disclosures, the Plaintiffs provided disclosures for two expert witnesses, Dr. Roseen and Alvin J. Snyder III ("Snyder"). The expert report submitted by Dr. Roseen at that time was "skeletal" and "non-substantive, " and parts of it were marked as "DRAFT." Notwithstanding these obvious shortcomings, the Plaintiffs did not seek to supplement Dr. Roseen's report until June 13, 2014, more than three months after the Plaintiffs' expert disclosures were due, two weeks after expert discovery had closed, and after the Defendants had filed their motion for summary judgment, based, in part, on the information disclosed in Dr. Roseen's expert report. Defs.' Mem. at 1, 2 (Dkt. No. 58). As noted by the Defendants, Dr. Roseen was deposed on May 22, 2014, without any indication from the Plaintiffs that Dr. Roseen would be revising and/or supplementing his report. Id. at 4.
On their part, the Plaintiffs filed a pretrial memorandum on June 27, 2014 (Dkt. No. 55) and an objection to the Defendants' motion for summary judgment on June 30, 2014 (Dkt. No. 56). In light of the voluminous materials submitted by both parties in support of their respective positions, the Court, following a conference with the parties on July 23, 2014, scheduled commencement of a trial without a jury for Monday, August 4, 2014. (Dkt. No. 83).
Prior to trial, the Defendants renewed their request, styled as a motion in limine, to dismiss the Plaintiffs' CWA claim on the ground that the claim had already been dismissed with prejudice in the related state court action. (Dkt. No. 89). No decision was rendered on that motion before trial. The first three days of trial took place on August 4, 5, and 6, 2014; the remainder was continued until September 8, 2014 in order to accommodate Plaintiffs' expert witness, Dr. Roseen.
Following presentation of the Plaintiffs' case, the Defendants made a motion for judgment on partial findings pursuant to Fed.R.Civ.P. 52(c), which the Court took under advisement. The Defendants renewed their motion after the close of all evidence. As directed by the Court, the Defendants filed a post-trial memorandum on October 3, 2014 (Dkt. No. 98); the Plaintiffs submitted their memorandum on October 24, 2014 (Dkt. No. 107).
II. Standard of Review
Federal Rule 52(a)(1) provides that "[i]n an action tried on the facts without a jury or with an advisory jury, the court must find the facts specially and state its conclusions of law separately. The findings and conclusions may be stated on the record after the close of the evidence or may appear in an opinion or a memorandum of decision filed by the court. Judgment must be entered under Rule 58." Fed.R.Civ.P. 52(a)(1).
As explained by the First Circuit Court of Appeals, "Rule 52(a)(1) is designed to ensure not only that the parties are adequately apprised of the district court's findings and rationale but also that a reviewing court will thereafter be able to evaluate the bona fides of the district court's decision." Valsamis v. Gonzalez-Romero, 748 F.3d 61, 63 (1st Cir. 2014). The directive of Rule 52(a) "impose[s] on the trial court an obligation to ensure that its ratio decidendi is set forth with enough clarity to enable a reviewing court reliably to perform its function.'" Sierra Fria Corp. v. Donald J. Evans, P.C., 127 F.3d 175, 180 (1st Cir. 1997)(quoting Touch v. Master Unit Die Prods., Inc., 43 F.3d 754, 759 (1st Cir. 1995)).
The following constitutes the Court's findings of facts and conclusions of law after considering all the testimony and evidence introduced by the parties in the course of the trial.
III. Findings of Fact
The Plaintiffs introduced the testimony of ten witnesses, including that of Paolino and Ferreira. The Defendants introduced the testimony of four witnesses, including that of Yabroudy, who was also called to testify in the Plaintiffs' case. The evidence is summarized and evaluated in the order it was presented.
1. Christopher Lee
Field technician Christopher Lee ("Lee"), employed by Rhode Island Analytical Laboratories, took water samples at the Paolino Property on December 23, 2013. TR I, 8:15-23. The Paolino Property is a vacant, wooded five-acre parcel facing Curran Road in Cumberland; it is immediately adjacent to the 39-acre Property where the auto salvage business is located. TR I, 9:13-10:3. Lee described a rock-lined drainage channel parallel to Curran Road, which was fed by multiple sources and emptied into a culvert under the road. TR I, 11-17. According to Lee, he observed water flowing from the smaller of two pipes set in a stone wall on the Property. TR I, 10:9-24. Lee observed that the water had a rainbow-like sheen, Tr I, 11:1-2. Lee also observed an intermittent stream running parallel to the property line between the Paolino Property and the Property and perpendicular to Curran Road. TR I, 23:9-17. During his twenty-minute visit to the site, Lee did not observe the corrugated metal pipe sticking into the drainage channel; however, it was later established that the metal pipe directing Curran Road runoff, the intermittent stream, and both outfalls from the Property all feed into the drainage channel. Lee's testimony established that he took a single sample from the drainage channel located partially on the Paolino Property; he took no samples from the smaller outflow pipe located on the Property. TR I, 26:1-6.
2. Alvin J. Snyder
Alvin Snyder ("Snyder") is a registered professional engineer and the principal of Environmental Resource Associates, Inc., a company engaged in environmental compliance and remediation. TR I, 29:8-17. Snyder was contacted by Paolino on December 23, 2013, after which Snyder requested that Rhode Island Analytical send a field technician (Lee) to the Paolino Property and take a water sample. TR I, 32:8-33:13. Snyder later received a report from Rhode Island Analytical that contained an analysis of the sample, Lee's field observations, and several photographs. TR I. 33:16-25. Snyder returned to the Paolino Property on December 29, 2013 after a rainfall. TR I 38:13-39:2. On that occasion, Snyder observed that the drainage ditch was flowing and that both LKQ outflow pipes were flowing, as was the metal pipe that was draining storm water from Curran Road. TR I, 39:6-12. Snyder took several samples, all on the Paolino Property. TR I, 22-24. No samples were taken from the two outflow pipes located on the Property. According to Snyder, he had previously taken samples in December 2009, both within the channel on the Paolino Property and in the intermittent stream. TR I, 52:7-24. Again, no samples were taken from the LKQ outflow pipes.
Likewise, when Snyder visited the Paolino Property on June 25, 2010 after a rain storm, he took soil samples within the drainage channel only, TR I, 67:23-68:11, as he did in September of 2011. TR. I, 71:23-72:9. No samples were taken on the Property. TR I, 81:6-11.
From the combined testimony of Lee and Snyder, it was established that the drainage channel, or "swale, " was fed by five separate sources: (1) the intermittent stream on the Paolino Property; (2) and (3) the two pipes in the headwall on the LKQ site (the Property); (4) the swale on one side of Curran Road (located upstream of the two headwall pipes, TR I, 91:10-16); and (5) the storm drain on the other side of Curran Road, connected to the drainage area by pipe. TR I, 85:13-87:7. In other words, water from Curran Road flowed through the swale, mixed with LKQ water, mixed with the intermittent stream, and mixed with water from the stormwater drain across from Curran Road, after which everything flowed through the drainage area under Curran Road. Any water samples that Snyder took in December 2009 after a rainstorm were taken in the intermittent stream or in the drainage channel, without sampling separately from the individual sources that contributed to the flow in the drainage area. Most significantly, no samples were taken from the two outflow pipes located on the Property. The same type of undifferentiated sampling was undertaken by Snyder in September 2011. TR I, 109:24-112:12. According to Snyder, he "made the assumption the water flowing into the swale would be the same as what was coming out the drain pipes from the same road." TR I, 114:13-22.
Snyder acknowledged that samples taken from the Paolino Property along Curran Brook in 2009 revealed the presence of TPH (Total Petroleum Hydrocarbons). TR I 106:17-107:9. Snyder, who also testified in the state proceedings brought by Paolino against the Defendants, further acknowledged that (1) TPH was found on multiple locations on the Paolino Property; (2) Paolino had been ordered by RIDEM to remove some 1, 100 tons of contaminated soil; and (3) the stream bed on Paolino's property was contaminated with lead, oil, sediment, and debris. TR I, 107:7-109:2. Snyder also conceded that the only place where he believed that stormwater from the Property touches the Paolino Property is at the culvert right next to Curran Road. TR I, 109:14-23. Subsequent testimony from RIDEM staff indicated, however, that this area may be part of the Curran Road right-of-way, not on Paolino's property.
3. Harold Ellis
Harold Ellis ("Ellis") is a former supervising environmental scientist with RIDEM. Because Ellis's proposed testimony related primarily to events dating back thirty or more years before the Complaint (which seeks, inter alia, injunctive relief as a remedy) was filed, no additional facts relevant to the case were established by his testimony.
4. Louis R. Maccarone II
Louis R. Maccarone II ("Maccarone") is a senior sanitary engineer at the RIDEM Office of Waste Management, which handles Superfund sites and site remediations. TR I, 140:14-25. On October 5, 2005, Maccarone sent a letter of responsibility ("LOR") to the Ferreira Trust. Ex. 53. The LOR references various documents concerning site assessments and inspections of a site identified as the "Boulter Farm." Ex. 53 at 1. According to the LOR, RIDEM has a file on that site that identifies elevated concentrations of certain contaminants. The LOR advised the Trust, as then current owner of the Property, and Advanced Auto Recycling, as then current operator of the Property, that both were considered a "Responsible Party" under RIDEM Remediation Regulations, and it required them to conduct a full site investigation, submit a completed site investigation report, and bring the Property into compliance with the regulations. Ex. 53 at 2-3.
Maccarone was unclear as to whether the Trust ever submitted a site investigation report, TR 145:1-7. He did not believe that any requested sampling at the boundary line had been done, and he noted that he was unaware of any time limits with respect to compliance with the LOR. TR I, 146:1-17. As was established in the course of Maccarone's testimony, his department was not responsible for stormwater treatment plans, TR I, 149:12-20, and the contaminants referenced in the 2005 LOR were found ten or twelve feet down in the soil, and not related to surface water. TR I, 151:14-21. Accordingly, Maccarone's testimony provided no additional facts relevant to the Plaintiffs' case.
5. David D. Chopy
David D. Chopy, ("Chopy"), RIDEM's Chief of Compliance and Inspection, identified e-mail correspondence between Chopy and an individual at the EPA (Environmental Protection Agency), in which Chopy confirmed that he had received certain data from Snyder regarding stormwater discharge samples taken on February 11, 2010. Ex. 48, TR II, 6:21-7:2. Chopy acknowledged that the data appeared to demonstrate water quality violations but he noted that because "[t]he data was obtained by a consultant working on the behalf of Mr. Paolino... we cannot use it in an enforcement action and there is nothing more that we can do at this time beyond what we have already done (i.e. issue a formal enforcement action ...