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<br /> 9198 Daily Appellate Repotfiursda �u! Z
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<br /> w'tnesseS state that tey saw a co-owner of the Aftporl9y, e4ll of eier, lCfldattts gtlitaes js 8 t
<br /> plaintiffs,Mr. Israel Zamds,place the gasoline hose intoperson as required under the statute. Despite the 3
<br /> his car on one occasion, Defendant Goodwin declares argument to the contrary, it is not n+ sEry that the
<br /> the gasoline pumps and tanks are the property had been plaintiffs prove that the property is a storage facility. l
<br /> abandoned and were no longer in use, at the time he Although the language of don 6972 start "any
<br /> sold the prOperEy to the plaintiffs. person ... including any ..,pag oamer or operator of a
<br /> IV ... storage .,, or disposal facility the use of the word
<br /> „including" does not limit the ddtinitlon of the word
<br /> CON LUSTONS OF LAW "person," and the Court will not co wbw it in such a
<br /> A. SUMMARY-'--ZMQ restricted manner.
<br /> " The two remaining elem mats that a plaintiff must
<br /> Show to prevail In a RCRA t:WM am that there is all
<br /> Rule 56(c)of the Federal Rules of Civil Procedure imminent haz d and that defendAnts contributed to the
<br /> provides: The Isummary) judgment sought shall be hazard.
<br /> rendered forthwith if the pleadings,
<br /> depositions, answers to interrogatories, and 1. AA, �NgygRD
<br /> admissions on file. together with the
<br /> affidavits. if any, show that there is no To prevail in a section 6972(a)(1)(B) claim, a
<br /> mine issue as to any matetial fact and plaintiff must show that the stolid or huardous waste
<br /> that the moving party is entitled to a may present an imminent and substantial endangerment
<br /> judgment as a matter of law. to health or the environment. In Unit, States v. ouati
<br /> F.R.C.P. 36(1') (19$7 & Goss, Inc., 630 F. Supp. 1361 (D.N.H. 1985), the
<br /> (emphasis added), At the district court defined imminent hazard:
<br /> summary judgment stage of the proceedings, the
<br /> evidence must be viewed in the light most favorable An "imminent hazard" may be declared at any
<br /> to the non-moving party and all Justifiable inferences Point in a chairs of events which may ultimately
<br /> are to be drawn in the non-movant's favor.Anderson v. result in harm to the public, it is not necessary
<br /> Liberty Lobes. 477 U.S. 242, 255 (1986), that the final anticipated Injury actually have
<br /> When, as is the case here, the moving party is Occurred prior to a determination that an
<br /> a plaintiff, he or she must adduct admissible evidence "Imminent hazard"exists,
<br /> on all matters as to which he,or she bears the burden of
<br /> proof. 5chwttrzer.Tashima. & Wagstaffe,Federal Qvil Id. at 1394 (quoting knvironmeiltal Defense Fund v.
<br /> Practice Before Trial 14;140 (1992). As a result, the E.P.A., 463 F.2d 528, 533 (D.C. Cir. 1977) (�lj�
<br /> Court will evaluate the elements of a section EPA Statement of Reasons Underlying the Registration
<br /> 6972(a)(1)(S) claim as to each defendant to determine Decisions,March 18, 197I)).The Court holds,based on
<br /> whether there is genuine issue of material fact as to any the evidence before it, that there Is an imminent and
<br /> element of plaintiffs' claim for relief, substantial endangerment to health cr the environment
<br /> B. THE RCRA CLAI► AGAINS � as a result of the contamination tit issue in Ws case.
<br /> � T ,
<br /> OWN"SEQPER�DEFENDANT'S 2, MNTRIBUTION
<br /> The Court will first review plaintiffs claim against The final element a ptalndff must prove to
<br /> AM of the defendants except defendant Nachant. These prrvafl In a Swdoh 6972(a)(1)(B) claim is that
<br /> defendants, who will be referred to as the defendants "contributed to" the eontamnination. The
<br /> owner/operator defendants, all owned the land in Court holds that a genuine issue of fact does exist on
<br /> question and/or operated the gas pumps on the hard in the issue of contribution with respect to the:
<br /> question. These defendants are similarly situated and owner/operator defendants. As a tie VI4 summary
<br /> subject to the same legal review. judgment is not appropriate. The following analysis is
<br /> Section 6972(a)(1)(B)provides in part that"...any intended both to explain this conclusion, and to guide
<br /> person may commence a civil action on his own behalf the parties as to how the legal Issues relating to INS
<br /> .—against any person ... who has contributed ... to the element of the plaintiffs'am will be resolved when the
<br /> past . handling, storage, treatment. transportation. or case pro=& to trial.
<br /> disposal of any solid or hazardous waste which may
<br /> present an immtncnt and substantial endangerment to a. overview Q tori .
<br /> health or the environment ....' 42 U.S.C.
<br /> 6972(a)(1)(B) (1983 & Supp, 1991). Individuals ares liable under RC3tA without MSW
<br /> The December 3, 1991 Order resolved the to fault or negligence. See ni fates j g26! A
<br /> question of whether an action could be maintained for God nc..630 F. Supp. 1361, 140MI (D.N.K 1985),
<br /> the creation of solid waste. ZE41 v. N f on, 779 F. fa fumed,900 F.2d 429 (1st Qr. 1990) (=firlig[lulled
<br /> Supp. 1254, 1263.64 (S.D,CaI. 1991). The Court now SIAteS y� ar�rtg , 18 EJLC. 16$3, 1686 (W.D. Oh.
<br /> rinds thcre has been a creation of solid waste. 1982) ('it WWI& be improper to read a negligence
<br />
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