Dolan Media Newswire Story
Subject: City of Rochester could be liable for site clean-up
Pub: Daily Record, The (Rochester, NY)
Author: Elizabeth Stull
Category: Justice,Government,Environment
Sub-Category: Courts,Local Government
Issue Date: 03/21/2008 Word Count: 47
City of Rochester could be liable for site clean-up
by Elizabeth Stull
Dolan Media Newswires
© Dolan Media Newswires 2009.ROCHESTER, NY -- The City of Rochester could be responsible for cleaning up environmental contamination that resulted from pre-1930 waste disposal, a federal judge found recently.
Olindo Enterprises Inc., 1510 Lyell Ave., is suing the city for the costs of removing three feet of ash and cinder, including hazardous heavy metals, which the city allegedly dumped on the two-acre site prior to 1930.
The city claims the site was never used for waste disposal. It moved for summary judgment dismissing the complaint, arguing the plaintiffs have no evidence to support their state and federal environmental law claims, and that there is no material question of fact.
But federal District Judge Michael Telesca found that testimony by the plaintiff's expert should be permitted, and that it raises a material question of fact. The source of the incinerated waste is a historical mystery to be resolved by a jury.
Olindo Enterprises Inc., Olindo's Import Foods Inc., Olindo Properties and Olindo DiFrancesco bought the Lyell Avenue lot from Joseph Stern and Sons Inc., in 1982. About 18 years later, Olindo and John Sexton & Co. entered a Voluntary Cleanup Agreement (VCA) with the state Department of Environmental Conservation (DEC).
During the cleanup, "old people" informed Olindo that the city used to dump at the site, the plaintiff testified.
The city argues such rumors are not evidence, but failed to produce any regular records of its pre-1930 waste disposal. Instead, the city produced evidence of land filling at the former Emerson Street Landfill between 1930 and 1972. That 230-acre landfill, located about one-quarter of a mile from Olindo's property, is now a superfund site.
The only garbage incinerator the city operated before 1930 was the Fall Street Incinerator, a garbage reduction plant that "cooked" rather than burned garbage. Since the incinerator was located downtown on the west bank of the Genesee River, it would be highly unlikely that ash was transported all the way to the Lyell Avenue site, (just west of Mt. Read Boulevard); if it were carried that far, it would not have been disposed at the Emerson Street landfill, the city claims.
The city maintains the ash could have been produced by various private and commercial boilers, and by non-city reduction plants that burned household trash. During this period, land owners sought fill materials, including ash from various sources for use to fill and level low areas such as ravines and gullies.
However, the plaintiffs' experts say the ash found on the site came from household waste disposed no later than the 1930s, since it contained historical domestic items such as cork-top bottles. It did not resemble fly or bottom ash or slag from boilers, and it was found beneath a layer of waste from the scrap operation that took place there beginning in the late 1920s.
According to the plaintiffs, S. Bruce Kohrn's historical research showed that the only known source of such large quantities of household trash at that time was the City of Rochester. As of 1917, the city was disposing 228,000 tons of waste per year and filling low areas in convenient locations for the horse-drawn wagons hauling ash from the Falls Street reduction plant.
In allowing Kohrn's expert testimony, Judge Telesca reviewed factors outlined by the U.S. Supreme Court in Daubert v. Merrell Dox Pharm. Inc., 509 U.S. 579 (1993). These include whether the expert's testimony can be tested; whether the expert's theory was subjected to peer review; the known or potential rate of error associated with the expert's techniques; whether standards or controls were used in testing and whether the expert's technique and theory are generally accepted by the relevant scientific community.
"I find that Kohrn's professional experience and the methodology used in rendering his opinion satisfies the requirements of Federal Rule of Evidence 702, and that the city's criticisms of Kohrn's opinions are better addressed on cross-examination and the weight to be afforded his testimony left to the fact finder," Judge Telesca wrote.
He noted that the city did not challenge Kohrn's qualifications as an expert in environmental forensics, nor his methodology.
The judge went on to cite Kohrn's sources of information, including laboratory data, interviews, publications from the Monroe County Department of Health, and other records and historical information. Experts "need not rely upon published studies or perform independent testing," the court noted.
To hold the defendant liable under CERCLA (the federal Comprehensive Environmental Response, Compensation, and Liability Act), the plaintiff must show the defendant's waste was disposed of at the site and hazardous substances similar to those found in the defendant's waste were present at the site at the time of release. Because Kohrn's testimony raises material questions of fact regarding these issues, the judge denied summary judgment for the defendant. Attorney Alan Knauf represented the plaintiffs; municipal attorney Matthew Brown represented the City of Rochester.
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