Paolino et al v. JF Realty, LLC et al
Filing
108
MEMORANDUM OF DECISION: The Court finds that the Plaintiffs have failed to meet their burden of proof and that the Defendants have prevailed in this case. The Defendants, if they so choose, are directed to submit a request for costs and fees by DECEMBER 3, 2014. The Plaintiffs may then have fourteen days to submit a response to the Defendants' request. So Ordered by Judge Mary M. Lisi on 11/19/2014. (Duhamel, John)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
LOUIS PAOLINO and
MARIE ISSA,
Plaintiffs,
v.
C.A. No. 12-039-ML
JF REALTY, LLC, JOSEPH I. FERREIRA,
ROBERT YABROUDY1, LKQ ROUTE 16
USED AUTO PARTS, INC., DBA
ADVANCED AUTO RECYCLING,
JOSEPH I. FERREIRA TRUST,
Defendants.
MEMORANDUM OF DECISION
This case, a citizen enforcement action under the Clean
Water Act (“CWA”), 33 U.S.C. § 1251 et seq. (1972), is the
culmination
neighbors.
wife,
of
The
Marie
a
longstanding
plaintiffs,
Issa
and
Louis
(“Issa”,
bitter
Paolino
together
dispute
(“Paolino”)
with
between
and
Paolino,
his
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
1
Defendant Robert Yabroudy (“Yabroudy”), who functioned as
treasurer of JF Realty and the Trust, was dismissed from the case
for defective notice.
1
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
Property2
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,
2
Over the course of litigation, the six-acre Paolino Property
was subdivided into three parcels; two half-acre parcels were sold
and residential homes were constructed thereon. Only the remaining
five-acre vacant parcel directly abutting the Property is at issue
in this litigation. Any claims related to the two smaller parcels
were dismissed by the Plaintiffs, with prejudice, in a related
state court action.
2
the parties presented their respective positions to this Court in
a
seven-day
trial
without
a
jury.3
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
3
The Defendants’ motion to strike the Plaintiffs’ jury demand
was granted on August 8, 2013. (Dkt. No. 33).
3
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. 1239-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,
4
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
compelling
the
19,
2014,
Defendants
the
to
Plaintiffs
allow
the
sought
an
order
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
5
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.
and
one
consultant
In addition, one of Plaintiffs’ attorneys
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
6
February 19, 2014).
The Defendants objected to this request on June 30, 2014
(Dkt.
No.
Plaintiffs’
56),
together
supplemental
with
a
expert
motion
to
report,
(1)
and
strike
(2)
the
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
7
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
Defendants
made
presentation
a
motion
of
for
the
Plaintiffs’
judgment
on
case,
partial
the
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).
8
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.
9
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
rainbow-like
sheen,
Tr
I,
intermittent
stream4
running
observed
11:1-2.
parallel
that
Lee
to
the
also
the
water
had
observed
property
a
an
line
between the Paolino Property and the Property and perpendicular
4
The intermittent stream is also known as Curran Brook and runs
on the Paolino Property from a pond in the rear portion of that
property. TR I, 74:17-75:2.
10
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
11
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
Snyder,
it
was
Property. TR I, 81:6-11.
From
the
combined
testimony
of
Lee
and
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
12
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
sampling
the
was
Property.
undertaken
The
by
same
Snyder
type
in
of
undifferentiated
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,
13
109:14-23.
Subsequent
testimony
from
RIDEM
staff
indicated,
however, that this area may be part of the Curran Road right-ofway, 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
October
5,
sites
and
2005,
site
remediations.
Maccarone
sent
a
TR
I,
140:14-25.
On
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
14
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
15
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 requiring corrective action).” Ex. 48. Chopy also noted
that “[t]he case is pending a hearing at the DEM Adjudication
Division.” Id. Chopy provided no further substantive testimony.
6. Louis Paolino
Paolino recounted that he stopped by the drainage area on
December 23, 2013, and observed an oil sheen coming from the
smaller pipe in the headwall located on the Property. Paolino
notified RIDEM and called Snyder to make arrangements to test for
oil. TR II, 12:18-13:23. Later that day, Paolino returned to the
area and observed an individual sweeping what Paolino believed to
be sediment and oil through the culvert. TR II 16:19-17:3.
Paolino again visited the site on April 15, 2014. According
to Paolino, he noticed a lot of turbidity (cloudiness in the
water) coming from the larger of the two outfall pipes in the
headwall; Paolino took a picture on that occasion. TR II, 18:23;
Ex. 23. Referencing the trespass claim tried in state court in
2012, Paolino pointed out that a portion of the headwall was
16
built on his property. Ex. 16.5 Paolino conceded, however, that
he does not use the area in the vicinity of the intermittent
stream and the discharge channel for anything. TR II, 25:7-23.
Paolino recalled that he had at least one conversation with
Ferreira between 1987 and 1989, in which he asked Ferreira to
remove a number of auto parts from the Paolino Property. TR II,
38:7-18.
After purchasing the Paolino Property in 1985 for $40,000,
Paolino
only
visited
it
once
or
twice
a
year.
Paolino
also
declared that, during that time, he was unaware of the automobile
salvage yard operating next door. TR II, 40:3-12. In the early
2000s, Paolino entered into an agreement to sell his property for
development. TR II, 40:13-22.
Subsequently, Paolino was sued by
the developer for failing to disclose that the Paolino Property
was contaminated.6 TR II, 42:1-44:25. Paolino acknowledged that
5
Exhibit 16, a jury verdict summary sheet from Paolino’s case
against the Defendants in state court, indicates that the jury
awarded $250 in nominal damages to Paolino for the encroachment of
a portion of JF Realty’s stormwater remediation system onto the
Paolino Property. Ex. 16, ¶ 17.
6
Paolino’s statements in that regard cast some doubt on the
reliability of his testimony when he insisted that he had not been
sued by the developer, a position he also maintained in a prior
iteration of this case. TR II, 42:1-43:17. When confronted with a
copy of the complaint against him, Paolino explained that, although
he answered the complaint and related interrogatories, he “never
considered this a lawsuit.” TR, II 44:8-22.
17
he sought a tax abatement in 2003 because of the contamination
found on his property. TR II, 47:12-14. Paolino was directed to
undertake remediation, for which he hired the engineering firm
GZA, which excavated more than 1,100 tons of soil contaminated
with TPH and MTBE (Methyl Tertiary Butyl Ether). TR II, 47:1548:1. Paolino also acknowledged that the remediation project on
his property was still an open site for RIDEM. TR II, 48:2-51:3.
In 2006, Paolino told Yabroudy that he wanted Ferreira to
purchase the Paolino Property for $250,000. TR II, 51 13-23.
Ferreira declined the offer. At the end of 2006, Paolino filed
the first lawsuit against the Defendants and a number of entities
whom
he
considered
responsible
for
the
contamination
on
the
Paolino Property. TR II, 53:15-54:14. In addition, Paolino made
numerous
complaints
about
the
Property
to
RIDEM,
EPA,
the
Cumberland Police Department, the U.S. Attorney’s Office, DBR
(Department of Business Regulations), and U.S. Senator Sheldon
Whitehouse; Paolino also gave interviews to TV stations and he
appeared on a radio talk show to discuss the matter. TR II,
56:21-58:6.
Paolino
conceded,
albeit
reluctantly,
that
RIDEM
had
investigated a number of his complaints about the Property and
had found them to be without merit. TR II, 59:12-66:14.
alia,
RIDEM
informed
Paolino
18
in
April
2008
that
Inter
it
had
investigated
three
separate
complaints
by
Paolino
about
conditions on the Property by performing a multimedia inspection
in March 2008. TR II, 60:9-61:19. RIDEM noted that it had issued
an NOI (“Notice of Intent to Enforce”) to the owner
of the
Property related to turbid water discharge and some petroleum
staining. TR II, 61:20-24. With regard to Paolino’s complaint
about rock and debris being thrown into the intermittent stream,
RIDEM noted that riprap (processed rock) had been installed in
and along the sides of the stream “in accordance with plans
approved by
2007.”
TR
the
II,
DEM
Freshwater
63:3-13.
RIDEM
Wetlands
also
Program
found
no
on
July 13,
evidence
of
a
violation with respect to Paolino’s claims that (1) solid waste
in the wetlands on the Property had not been removed, TR II,
63:14-64:3;
(2)
water
was
being
discharged
onto
the
Paolino
Property without permission or prior notice, TR II, 64:4-21; (3)
a building had been constructed and expanded within the 100-foot
riverbank wetland. TR II, 64:25-65:20; and (4) the auto recycling
facility was mismanaging auto fluids and allowing liquid waste to
run off into the wetlands. TR II, 65:22-66:14. RIDEM also pointed
out to Paolino that it had already addressed the results of an
earlier investigation in a letter to Paolino dated October 24,
2007. TR II, 65:25-65:20.
Further communication from RIDEM to Paolino’s attorney in
19
November 2009 responded to Paolino’s complaints about relocation
of a stream, encroachment into a buffer zone, and allegations of
continuing water pollution from the Property. TR II, 68:14-69:16.
Paolino also complained to town officials about the installation
of the swale along Curran Road without permits. In response,
RIDEM informed the Cumberland Town Solicitor that it had received
numerous, repeated complaints from Paolino regarding the Property
and
that
it
had
“thoroughly
investigated
each
complaint
and
determined all but one to be unfounded.” TR II, 73:2-9. With
regard
to
the
single
documented
water
pollution
violation
involving the discharge of turbid stormwater runoff from the
Property to Curran Brook, RIDEM noted that it had issued a notice
of violation on March 2, 2010, which included an order to correct
the violation and an administrative penalty for noncompliance. TR
II, 73:12-20.
Following
Paolino’s
report
of
a
discharge
of
oil
and
gasoline into the Pawtucket watershed to RIDEM on December 23,
2013, John P. Leo (“Leo”) from RIDEM investigated the complaint.
Ex. 21. Leo visited the Property and met with an inspector from
the Pawtucket Reservoir and with the owner of the Property. TR
II, 78:1-11. According to Leo’s “Emergency Response Report,” the
sheen coming out of the drain was so light that it could not be
picked up with absorbents. Leo also noted that the oil-water
20
separator on the Property showed “below concern levels for TPH,”
and he suggested to the owner to have the separator pumped off
and keep better track of it. TR II, 78:4-22. Leo concluded that
no further action was needed at that time. TR II, 78:21-22.
Following another complaint [apparently made to the EPA] by
Paolino in April 2014, Pat Hogan (“Hogan”) from RIDEM inspected
the outfall on April 15, 2014, noting that it had been raining
lightly and steadily for hours; no flow was coming from the
smaller pipe and only an extremely low flow from the larger pipe;
and the flow was “clear, no color, with no visible oil sheen or
turbidity.”
TR
II,
84:19-85:7.
Hogan
returned
the
following
morning when the flow from both pipes was still clear. Although
turbid stormwater runoff was conveyed by the recently constructed
paved drainage swale, no oil sheen was visible and the stream
clarity was not being impacted by the runoff. TR II, 85:3-13.
All
information
in
Hogan’s
report
from
that
occasion
was
forwarded to Paolino, informing him that “[g]oing forward, DEM
will continue to accept any complaints that you may wish to
submit. However, your complaints (along with any other complaints
submitted by the public) will be inspected according to priority
and resources available at the time.” TR II, 85:14-20.
In 2013, Paolino filed suit against RIDEM in Rhode Island
state court seeking a writ of mandamus, to which he later added
21
the Defendants as parties. TR II, 87:6-90:1.
7. David Holzinger
David Holzinger (“Holzinger”), operations manager for LKQ
since 2005, described the process of auto recycling at the LKQ
facility. Incoming cars are held in a holding area until they are
dismantled,
at
which
time
the
fluids
are
removed
from
the
vehicles. Motors and transmissions are then stored or sold, and
the hulks (without fluids) are taken to the back of the facility.
TR
II,
106:25-107:12.
Any
wastewater
from
a
contained
parts
washer on-site is pumped into 255-gallon indoor vats and then
pumped out by the Safety-Kleen Corporation. TR II, 105:13-106:22.
According to Holzinger, he collects stormwater samples every
quarter within the first thirty minutes of a stormwater discharge
at “Outfall 1,” (if he fails to do so, he is required to note why
a sample was not collected within the first thirty minutes). TR
II, 108:20-109:15, Ex 15 at Page 9 of 37 ¶ 5.1. Outfall 1 is
located where the water mixes with the intermittent stream and
before it flows underneath Curran Road. TR. II, 107:17-20. The
initial sampling location is near the pond shared by the two
properties
across
and
Curran
the
final
Road.
TR
sampling
II,
location
108:7-19.
is
on
Leroy
Road
Holzinger
also
took
quarterly samples at the base of the two outfall pipes, where
runoff from the Property mixes with runoff from Curran Road, and
22
sent
them
to
RELCO
Engineers
(“RELCO”),
an
environmental
engineering and consulting firm. TR II,111:24-112:9, 113:7-14.
Holzinger noted that, in the time he had been at LKQ, he had
never seen a spill at the facility. TR II, 116:5-6. He also
testified that LKQ spent close to $1 million on the stormwater
management system and that it continued to make improvements to
the system to keep turbidity of the runoff in check. TR II,
128:22-129:4.
In
order
to
be
compliant,
turbidity
at
the
downstream
sampling area is required to remain within 5 NTUs (nephelometric
turbidity units) of the upstream sampling result. TR II, 131:15132:1.
As
set
forth
in
the
RELCO
report
for
2011,
Ex.
12,
compliance ranged between 0% (February) and 94% (May) during the
first half of the year and between 0% (July) and 96% (October)
during the second half of the year. Ex. 12 at 3-4. Holzinger
conceded that he did not always report the reasons for not taking
runoff samples within thirty minutes, as required. TR II, 142:923. Holzinger also explained that, in order for the intermittent
stream to be flowing, significant rain was necessary before he
could collect a sample. TR II, 147:8-14.
8. Robert Yabroudy
Robert Yabroudy (“Yabroudy”) has been the business manager
for Ferreira and his companies for 31 years; however, as Yabroudy
23
explained, he has not been responsible for environmental matters.
TR
III,
3:14-4:7.
On
June
15,
2006,
Yabroudy
signed
an
application for a RIPDES permit that named the Trust as the
current
owner
of
the
Property
and
Advanced
Auto
Recycling
(“Advanced Auto”) as the current operator. TR III, 6:1-7:2. As
Yabroudy explained, Advanced Auto was actually dissolved in 2005
and the Property was conveyed to JF Realty at the time. TR III,
7:15-19,
8:4-8.
In
other
words,
the
information
on
the
application (which, according to Yabroudy, was filled in by Karen
Beck from Commonwealth Engineers) was outdated. The application
was submitted after RIDEM issued a Notice of Intent to Enforce
(“NIE”) to Advanced Auto in March 2005, in which RIDEM requested
Advanced
Auto
to
(1)
install
temporary
controls
to
prevent
stormwater runoff and (2) apply for a RIPDES permit. Ex. 4.
Because the RIPDES permit required a stormwater pollution
plan
control,
retained an
III,
engineer,
communication
prevention
TR
with
team
16:1-4,
TR III,
RIDEM
leader.
Yabroudy
25:25-26:7;
he
also
functioned
as
the
and
TR
contacted
III,
16:14-17:5.
The
RIDEM
stayed
and
in
pollution
stormwater
management system installed on the Property included two outfall
pipes set in the headwall facing Curran Road. Outfall 1, the
24
larger pipe, carries water from the impervious7 surface areas
(roughly
five
acres
on
the
Property);
Outfall
2
drains
an
additional area that was not covered by Outfall 1. TR III, 22:122. Underground are large detention basins that collect water and
let contaminants settle to the bottom, which results in cleaner
outflow. TR III, 22:23-23:2. The system, which was completed in
2008, also includes an underground oil/water separator. TR III,
23:3-10.
Sampling
Holzinger,
who
of
made
the
water
reports
to
outflow
RELCO,
was
which,
delegated
in
turn,
to
made
quarterly reports to RIDEM. TR III, 26:14-27:8.
After RIDEM sent a letter to Yabroudy on September 23, 2010,
noting that it had come to RIDEM’s attention that the Property
had
changed
ownership,
Ex.
9,
LKQ
sent
a
letter
to
requesting a name change to the RIPDES permit. Ex. 10.
to
the
October
operator/owner
of
14,
2010
the
letter,
Property;
LKQ
was
Ferreira,
the
the
RIDEM,
According
current
“previous
responsible party” for Advanced Auto, remained as general manager
of LKQ. The letter also stated that the Trust “hereby transfer
[sic] the above referred permit on October 28, 2005.” Ex. 10.
In
sum,
Yabroudy’s
testimony
(presented
both
in
the
Plaintiffs’ case and on behalf of the Defendants) established
7
Impervious surface refers to artificial structures such as
paved areas, driveways, rooftops, which are covered by impenetrable
materials.
25
that, while the Trust may still have been the owner of the
Property when RIDEM became involved in 2004/2005, the Property
was conveyed to JF Realty in 2005 and was operated by LKQ, not
Advanced
Auto.
notified
of
Although
the
change
RIDEM
in
was
apparently
ownership
or
not
operator
properly
identity,
correspondence and documents from RIDEM indicate that RIDEM was
aware of the changes. Inter alia, a 2007 telephone deficiency
note reflects “JF Realty, LLC (formerly Joseph Ferreira Trust) as
the file name, Ex. 5; a 2007 “Insignificant Alteration Permit” is
addressed to JF Realty, LLC, Ex. 7; and a 2010 NOV was issued to
JF
Realty
LLC.
Ex.
8.
All
those
documents
precede
RIDEM’s
September 2010 notification to the Trust that the transfer of
ownership and change in operator was not in RIDEM’s files. Ex. 9.
In response to RIDEM’s notification, LKQ and Ferreira promptly
(if perhaps inadequately) requested a name change to the RIPDES
permit, asserting that “[t]here will no name change in the day to
day operations; it will be business as usual.” Ex. 10.
As recounted by Yabroudy, in late 2005, Paolino requested
that Yabroudy offer the Paolino Property to Ferreira for purchase
and
quoted
a
price
of
$250,000.
After
Yabroudy
“vehemently”
declined the offer, Paolino said that Ferreira would “regret” it.
TR VII, 42:12-43:13.
26
9. Joseph Ferreira
Ferreira, who purchased the Property in 1983, is LKQ’s plant
manager in
charge
of
purchasing
cars
for
recycling.
TR
III,
52:11-14. Ferreira had no direct involvement with RIDEM, although
he was aware of the 2005 RIDEM notice requiring a RIPDES permit.
TR III, 37:19-25, 39:6-11, 41:2-8. At times, Ferreira was briefed
by Yabroudy, who dealt with the engineer regarding the permit
issue.
TR
III,
41:9-18.
Ferreira
knew
that
there
was
contamination on the Property, TR III, 46:23-25, and that work
was necessary to address that issue. TR III, 47:10-15. Ferreira
also
briefly
described
the
installation
of
the
stormwater
management system, TR III, 43:21-44:8, but he was unclear on the
specifics of parts of the system or particular events related
thereto. In sum, Ferreira relied on Yabroudy or other employees
to attend to the details of the RIPDES permitting process and he
generally assumed that all necessary work was done. Accordingly,
Ferreira’s
testimony
did
not
provide
any
support
for
the
Plaintiffs’ claims.
10. Dr. Roseen
Following
positions
on
a
presentation
the
Defendants’
untimely expert
report
(Dkt.
of
the
motion
No.
parties’
to
57), the
strike
Court
respective
Plaintiffs’
advised
the
parties, for reasons stated in open court, that Dr. Roseen would
27
be permitted to testify only to his observations and conclusions
contained
in
the
initial
disclosures
provided
in
his
first
report. As the Court noted, the Plaintiffs
“didn’t engage an expert until sometime in the very
month that those disclosures were due; and then once
you had the opportunity with the expert to go on the
property and do what it was that the Court permitted
you to do, still even then you went forward to the
noticed deposition of that expert and did not, before
that date, do anything to apprise the other side that
there would be these additional opinions rendered.” TR
IV, 15:4-12.
Instead, the Plaintiffs filed a motion to serve a revised
expert report months after the deadline for expert disclosures
had passed and only after the Defendants (in reliance on the
Plaintiffs’ disclosures as they had been made up to that date)
had filed their motion for summary judgment in accordance with
the deadline established in the pretrial order.
Dr. Roseen’s limited testimony is summarized as follows. Dr.
Roseen holds a doctorate in civil engineering with a specialty in
water resources engineering. He was not engaged by the Plaintiffs
until mid-February 2014, two weeks before his report was due. Dr.
Roseen explained, in general terms, the design and functions of
the stormwater management plan (“SWPPP” for Stormwater Pollution
Prevention Plan) for the Property. TR IV, 104:24-108:24. Dr.
Roseen conducted a file review of existing documentation and
information relayed to him by a member of his staff who conducted
28
a site visit on the Paolino Property. TR IV, 111:23-113:5. Using
information
gained
from
the
site
visit (not on
the
Property
itself) and available state data based on LIDAR8 imagery, Dr.
Roseen identified what he believed to be four potential locations
of off-site discharge where untreated runoff would occur.
TR IV,
113:17-114:10. Dr. Roseen also suggested that a berm “that’s
constructed,
as
far
as
we
know
...
observed
through
the
topographic analysis with the remote sensing data,” surrounding
the LKQ site might be overwhelmed in case of substantial water
ponding. TR IV, 114:13-25, 115:1-4. Based on the SWPPP design
drawings,
local
soil
data,
and
NOAA
(National
Oceanic
and
Atmospheric Administration) rainfall data, Dr. Roseen designed a
watershed
computer
model,
essentially
reconstructing
the
stormwater practices on the Property and estimating the site
discharges. TR IV, 116:1-14.
Dr. Roseen also reviewed the elements of the 2007 SWPPP,
noting that the MSGP (multi-sector general permit, essentially
identical to the RIDPES permit) described the need for monitoring
every outfall; he acknowledged, however, that the state-approved
plan called only for a single outfall to be monitored. TR IV,
123:1-15.
8
LIDAR, a portmanteau of “light” and “radar,” is a type of
imagery that enables topography with very high vertical accuracy.
TR IV, 114:5-10.
29
The
2010
Corrective
Action
Plan,
implemented
after
the
issuance of an NOV to the Defendants, constituted a major upgrade
for
the
SWPPP,
including
water
quality
units,
underground
detention, and storm filters. TR IV, 124:1-14. Dr. Roseen also
noted
that
this
type
of
advanced
stormwater
management
was
heavily dependent on maintenance, e.g. filter changes. TR IV,
124:11-25.
for
A further revised 2012 SWPPP added primarily measures
turbidity
controls
to
the
system,
including
visual
observation at five new observation points and the use of a
street sweeper to clean up after daily operations. TR IV, 125:12153:4. A 2013 SWPPP revised quarterly to semi-annual monitoring.
TR IV, 126:16-25.
Dr. Roseen also conducted a review of maintenance records
from 2007 through September 2013, but noted that there was a lack
of information. According to Dr. Roseen, the MSGP requirements
for maintenance records were not available and he was unclear on
the capacity for oil-water separators. TR IV, 127:14-15, 21128:1. According to the documentation, the oil-water separator
had
never
been
cleaned
and
inspection
reports
were
missing.
Although the cartridges for Contech storm filter units on the
site had been replaced once, there was some discussion of the
need for maintenance in the records. TR IV, 128:6-11.
With respect to the berm surrounding the LKQ operations, Dr.
30
Roseen estimated, using his computer model, how frequently the
berm would overtop during a 10-year, 24-hour design storm; his
calculations were based on the berm’s storage capacity, which he
calculated by multiplying the impervious area on the site with a
number equating a one-inch rainfall over a certain time period.
TR V, 5:12-20, 8:11-24. Dr. Roseen acknowledged that he did not
have the actual calculations available to him, but he essentially
constructed a model of the berm’s treatment capacity based on
design
drawings
state
GIS
(geographic information systems) databases.
TR V, 8:11-24.
Dr.
Roseen
conducted
noted
and
that
topography
the
staff
information
member
who
from
a
visual
inspection of the Property from the neighboring Paolino Property
observed that the berm did not look as if it would contain runoff
and that, on a portion of the Property, the berm appeared to be
made of compressed automobiles. TR V, 10:8-12:9. It is noted,
however, that this inspection took place in February 2014 and
that the observing staff member could not see the dimensions or
material of the berm because it was covered with snow.
Because
he
had
no
water
quantity
volume
calculations
available, Dr. Roseen estimated the size of the water quality
units by using the design drawings in the Corrective Action Plan.
By calculating a water quality volume for the given area, Dr.
Roseen concluded that (1) the berm was insufficient for storage;
31
(2) the water quality units were also insufficient; but that (3)
the underground detention systems were sufficient. TR V, 16:9-23,
20:1-6. Using the EPA Stormwater Management Model, state GIS
data9
for
topography
and
soil
type,
and
the
Commonwealth
engineering system information, Dr. Roseen performed an analysis
he
referred
to
as
“continuous
simulation.”
TR
V,
22:2-9.
According to this constructed model, Dr. Roseen estimated that,
based on a five-year rainfall record, the berm would overtop
about fifty times per year, resulting in untreated stormwater
discharges reaching Curran Brook or various unnamed ponds on the
Property. TR V, 22:2-16.
Ultimately, Dr. Roseen concluded that, based on his review
of the water quality information, the field perimeter assessment,
the
review
of
the
maintenance
documents,
and
the
analytical
analysis of the best management practice performance, “we feel
that there is a high likelihood of continued discharge from this
facility
and
that
there
is
repeated
discharge
at
multiple
locations to Curran Brook and to ... both in violation of the
permit
as
well
as
for
the
Class
AA
waters
[referring
to
a
violation of water quality regulations]”. TR V, 38:22-39:8.
As Dr. Roseen acknowledged, the history of the two adjacent
9
It was unclear which state topography data was used by Dr. Roseen
because the specifics were not listed in his report. TR V, 59:1866:6
32
properties
was
environmentally
complicated.
He
was
unaware,
however, that Paolino had been required to removed 1,100 tons of
TPH contaminated soil from his own property. TR V, 43:16-45:16.
Dr. Roseen also acknowledged that the Property had a stormwater
management system designed and constructed with RIDEM approval
and
that
improved.
the
system
TR
V,
had
been
47:14-48:9.
subsequently
One
of
and
those
repeatedly
improvements
specifically addressed concerns about turbidity for which RIDEM
had issued an NOI. TR V, 50:3-14. With respect to the February
2014 site visit conducted by one of Dr. Roseen’s staff, Dr.
Roseen acknowledged that there was a foot of snow on the ground
on that day. TR V, 53:17-22. The field notes generated from that
visit specifically state that the dimensions of the berm and the
berm material could not be observed because there was no access
to the Property and the berm was covered with snow. TR V, 56: 724.
Regarding the conceptual model Dr. Roseen created—which led
him to the conclusion that the berm would overflow up to fifty
times each year—it appeared that Dr. Roseen applied the standards
set forth in the 2010 Rhode Island Design and Installation Manual
to
the
specifications
2007/2008.
TR
V,
of
a
81:16-84:11.
system
The
that
was
calculations
constructed
by
which
in
Dr.
Roseen arrived at the estimated volume of untreated stormwater
33
runoff in a five-year continuous simulation were not included in
his report. TR V, 90:19-93:9. As Dr. Roseen acknowledged, he
never confirmed with anyone whether the berm—which his model
predicted would overflow an estimated total of 253 times in five
years—had
ever
overflowed
at
the
site.
TR
V,
98:6-99:17.
Subsequent testimony from several other witness indicated that
the berms have never overflowed since the system was put into
operation.
For purposes of his February 2014 report, Roseen did not
perform
any
water
quality
monitoring;
instead,
he
relied
on
samples collected in 2009 by Snyder and in 2013 by Lee. TR V,
113:2-114:1. As noted before, all of those samples were taken on
the Paolino Property, at which point the water had already become
commingled
Roseen
with
the
acknowledged
necessary
compared
to
flow
that
provide
single
from
a
several
sufficient
statistically
results
of
sources.
number
runoff
of
Dr.
samples
is
conclusions,
relevant
stormwater
Although
he
collected
from
imprecisely described locations against the national standards.
TR V, 119:4-121:4. Moreover, in listing the RELCO monitoring
results in his report, Dr. Roseen acknowledged that he listed
only
those
regulatory
sampling
benchmark,
results
without
that
were
including
compliance. TR V, 121:5-122:2.
34
in
exeedance
those
that
of
the
were
in
It was established by Dr. Roseen’s testimony that, at the
time he submitted his expert report, he had been retained only
two weeks prior. As a result, Dr. Roseen’s expert report was
missing relevant portions, including the calculations on which he
based his preliminary conclusions as well as the source materials
on which he relied in constructing his conceptual overflow model.
None of that information was relayed to the Defendants prior to
their opportunity to depose Dr. Roseen and, in the absence of an
indication that Dr. Roseen would supplement his report months
later,
Dr.
Roseen’s
testimony
at
trial
was
limited
to
the
originally disclosed information. Because there were large gaps
in explaining by what methodology and measures Dr. Roseen had
arrived
at
his
findings,
and
in
light
of
other
convincing
testimony disputing his findings and conclusions, Dr. Roseen’s
testimony fell short in supporting the Plaintiffs’ claims.
11. Patrick Hogan
Patrick John Hogan (“Hogan”) is in charge of supervising the
RIDEM Water Pollution and Septic Enforcement Program. TR IV,
17:3-11.
Hogan visited the Property on March 5, 2008, after
RIDEM had received two complaints from Paolino regarding turbid
discharge at the site. TR IV, 19:11-21. The inspection report
generated after that visit, Ex. E, pages 1-3 only, states that
there was a light oil sheen on the pooled water and it notes that
35
the sheen’s source was unclear because stormwater runoff from the
Property and Curran Road drained to the same area. Ex. E at 1.
Hogan’s inspection of two areas near the pond at the rear of the
Property and at the intermittent stream revealed no visual or
olfactory evidence of auto fluids, nor did Hogan see any evidence
of oil or other auto fluids draining into the stream. TR. IV,
21:21-23:11. Following this visit, Hogan sent an NOI to the Trust
on April 9, 2008, informing it that the inspection had revealed
the
discharge
of
turbid
water
and
petroleum
staining
on
an
exterior wall and a section of pavement. Ex. F at 1. The NOI also
set out six specific steps for the landowner to take in order to
address the problem. As Hogan confirmed, the Trust worked with
RIDEM in the following months to institute the steps set out in
the NOI. TR IV, 26:6-13.
By letter dated April 16, 2008, Hogan responded to various
complaints
informed
Paolino
Paolino
had
that
made
RIDEM
to
had
RIDEM.
Specifically,
performed
a
Hogan
multimedia10
inspection at the Property on March 5, 2008; that riprap had been
installed in accordance with a RIDEM freshwater wetlands permit;
that no solid waste in excess of regulatory limits had been
found; and that Paolino’s complaint about water being discharged
10
As Hogan explained, the term “multimedia” is used within RIDEM
to indicate that staff from different RIDEM programs were present
at the site inspection. TR IV, 28:1-4.
36
onto his property was unfounded because the discharge occurred in
the right-of-way
associated
with
Curran
Road.
Ex.
G,
TR
IV,
27:24-30:18. Hogan noted that a prior complaint by Paolino about
a building protruding into wetlands had already been addressed
and that no violation had been found. TR IV, 30:19-31:3. Hogan
also provided a copy of the NOI to Paolino. Ex. G at 1.
On November 20, 2009, following a significant rainstorm,
Hogan
made
another
inspection
at
the
Property.11
On
that
occasion, the measured turbidity difference between upstream and
downstream water flow was 5.2 NTUs (just slightly above the Rhode
Island standard of 5.0). TR IV, 32:16-33:10, Ex. T. RIDEM issued
a Notice of Violation, which was eventually settled by JF Realty
after payment of a $2,670 administrative penalty. TR IV, 34:203535:25, Ex. 13.
In July 2010, Hogan wrote to the Cumberland town solicitor
to address concerns voiced by the Town regarding the Property.
Ex. W-1, TR IV, 37:20-38:11. Hogan informed the Town as follows:
Since September 2007, DEM has received numerous,
repeated complaints from an adjacent landowner, Mr.
Louis Paolino, regarding alleged wetlands, solid waste,
oil pollution and water pollution violations dating
back to the 1980s. The most recent complaint was
submitted on June 23, 2010. DEM thoroughly investigated
each complaint and determined all but one to be
11
Hogan explained that the inspection was prompted by another
complaint and that the date was chosen because there had been a
good rainfall. TR III, 33:11-23.
37
unfounded.
Hogan noted that RIDEM had found one violation related to
the discharge of turbid stormwater runoff from the Property to
Curran Brook, which prompted RIDEM to issue a NOV that included
an order to control the violation and to pay an administrative
penalty for noncompliance. Ex W-1, TR IV, 39:17-40:8.
Hogan
performed
two
additional
site
inspections
of
Property in April of 2014. TR IV, 40:21, Ex. FF, Ex. GG.
the
The
April 15, 2014 inspection showed no or little flow from the two
outfall pipes in the headwall, and the flow in the stream was
clear with no visible oil sheen or turbidity. Ex. FF, TR IV,
40:21-41:4. Hogan returned the following day after it had rained
overnight. Ex. GG. On this occasion, he noted that there was
clear flow from the outfall pipes. Hogan noticed that there was a
newly constructed paved swale to discharge road runoff into the
new riprap-lined drainage swale. The water in the newly paved
swale (which is upstream of the two fallout pipes) was turbid and
brown, but free of any oil sheen. In other words, the turbidity
in the riprap swale appeared to be generated from the paved swale
that discharged runoff from Curran Road. Ex. GG, TR IV, 45:946:18.
Hogan
also
explained
that
the
samples
taken
by
Snyder,
Paolino’s hired consultant, were of no use to RIDEM because the
38
source
of
the
samples
was
not
clear.
TR
IV,
77:15-78:10.
According to Hogan, a sampling result of petroleum in surface
water
samples
was
not
necessarily
a
violation,
when
it
was
unclear whether the samples were taken in the receiving stream,
the plunge pool, or the discharge channel. TR IV, 77:10-78:18.
In sum, Hogan’s testimony established that he conducted at
least four personal inspections of the Property, prompted, at
least in part, by Paolino’s complaints to RIDEM. For the most
part, the complaints were deemed to be unfounded; in the sole
instance where a violation was found, RIDEM issued an NOV and
levied an administrative fine on JF Realty. Hogan kept Paolino
informed of
addressed
RIDEM’s
the
responses
concerns
to
expressed
the complaints
by
the
Town
and
of
he
also
Cumberland
regarding the Property. It is noteworthy that, in addition to
determining that there were no violations on the Property (with
the exception of a finding of turbidity), Hogan also advised
Paolino in April 2008 that the discharge point was relocated to
“the southwest corner of the Property at the border with the
right-of-way
stormwater
associated
was
not
being
with
Curran
discharged
Road,”
onto
and
Paolino’s
that
the
property.
12. Karen Beck
Commonwealth
Engineering
employee,
registered
landscape
architect, and wetlands scientist Karen Beck (“Beck”) provided
39
the
most
understandable
and
system
cohesive
design
description
and
of
construction
the
stormwater
management
on
the
Property.
Beck worked on the design, obtained the necessary
permits, and coordinated efforts by Commonwealth’s engineers. TR
VI, 20:19-23.
As already established, the Property has a known
complicated history—as does the property owned by the Plaintiffs.
In order to obtain RIPDES and Freshwater Wetlands permits for the
Property,
the
Commonwealth
Property
collaborated
owners
with
hired
Commonwealth
RELCO,
which
in
2005.
specializes
in
stormwater testing and water quality issues. TR VI, 21:4-22:1.
RIDEM
had
provided
specific
directives
regarding
the
system,
requiring the Property owner to control aluminum, lead, oil and
grease, and iron. Both permits also required treatment for total
suspended solids. TR VI, 22:4-17.
At first, turbidity was not an issue that RIDEM required the
Defendants to address. TR VI, 23:5-9. The initial drawings for
the stormwater management system were amended three times through
2007 and were eventually approved by RIDEM when the plans were
submitted in support of the RIPDES permit application. TR VI,
27:6-18. Work on the system began in 2007. TR VI, 27:23-25. For
temporary
sediment
control,
riprap
and
silt
fencing
were
installed at the site. After construction was nearly completed,
RIDEM issued an NOI, raising, for the first time, a concern about
40
turbidity. TR VI, 28:1-17. RIDEM records show that a conversation
regarding the turbidity issue took place between Beck and Hogan
in December 2008. Ex. N.
In August 2008, Commonwealth’s engineers certified that the
site was constructed as per the approved plans. TR VI, 30:12-15.
Ex.
J.
Following
that
certification,
Commonwealth
proposed
additional turbidity controls which were approved by RIDEM. Ex.
P, TR VI, 31:12-18. Although RIDEM initially set the turbidity
standard at 10 NTUs above background, that standard was lowered
to 5 NTUs because the water eventually drained into a drinking
water supply. TR VI, 32:15-22. Subsequently, RIDEM issued an NOV
for a turbidity reading of 5.2. TR VI, 33:16-21. Commonwealth
then suggested additional methods to address the turbidity issues
by preparing, together with RELCO, a Corrective Action Plan that
included additional trench drains, riprap areas, and pavement
areas. Ex. 11; TR VI, 34:1-14. The plan was approved by RIDEM. TR
VI,
34:15-25.
According
to
Beck,
who
participated
in
the
implementation of the plan and was personally present at the site
during the installation of some of the measures, all proposed
actions and facilities were instituted at the site. TR VI, 35:119, 36:11-37:15.
In order to direct the downhill flow of stormwater into the
water quality treatment system, two berms were constructed on the
41
site. TR VI, 38:19-23. The berms were made from compacted “clean
fill,” approximately one and one half foot in height and of
varying length. TR VI, 38:5-17. Beck explained that the berms
were designed to direct the flow of the water, not to filter or
to contain it. TR VI, 41:5-17. In other words, the berms were not
intended to hold the water, just direct its downhill flow and
lead it to the stormwater management system. TR VI, 41:14-17.
Beck also noted that any component of the site that Dr. Roseen’s
staff believed to be constructed of crushed cars was not part of
the
stormwater
design.
TR
VI,
39:3-14.
In
response
to
Dr.
Roseen’s computer model—which anticipated that the berms would
overflow 253 times in a five year period—Beck confirmed that,
during at least two dozen visits she made to the site, including
during or after a rainfall, she had never seen any of the berms
overflow. TR VI, 39:21-40:23.
To
design
the
system,
Commonwealth
used
aerial
photogrammetry, i.e. photographs taken from a plane together with
computer models, in order to generate site-specific topography,
including buildings, catch basins, rocks, trees, etc. TR VI,
42:9-43:8. Beck explained that this method, utilizing a two-foot
interval, was more precise than the state database used by Dr.
Roseen, which utilized a five-foot interval. TR VI, 43:9-17.
Beck also noted that the “untreated runoff” referred to in
42
Dr. Roseen’s report related to a wooded area, where treatment of
stormwater was not required under Freshwater Wetlands or RIPDES
regulations. TR VI, 43:18-44:7.
With
respect to
the
system
installed
at
the
site,
Beck
provided a detailed overview of its design and function, TR VI,
44:14-58:4, noting that no options for the site existed that were
more technologically advanced than the system that was installed.
TR VI, 58:1-3.
To summarize briefly the operation of the system, rainwater
runs down the hill from the rear of the site; it is then directed
by two berms; it crosses areas of gravel, riprap and pavement,
and
enters
two
trench
drains,
which
are
long
rectangular
underground structures with a grate on top. The water then enters
Hancor water quality units that consist of four-foot diameter
pipe with a series of baffles along the length of the pipe which
trap
any
oil
in
the
waterflow.
The
drainage
calculations
necessary to remove 80% of total suspended solids (as required by
RIDPES and RIDEM) were submitted to RIDEM, which reviewed and
approved them. The Hancor units also contain a coalescer, an
intricate
plastic
unit
that
retains
and
removes
additional
particles from the water. The water is then discharged into the
subsurface extended detention system, a number of parallel 48inch diameter pipes with a controlled outlet structure, in which
43
the water is detained for a minimum of 36 hours, during which
time all of the solids are settled out. At some point, one of the
Hancor units was removed and replaced with four Contech units, a
change that was coordinated with and acceptable to RIDEM. TR VI,
75:11-76:18.
In
secondary
addition
to
structure
the
was
primary
installed
structure
for
on
larger
the
storm
site,
a
events,
including a vertical rectangular weir and a series of four catch
basins with Contech filter units that control the discharge of
larger water flow, which eventually flows through the smaller
pipe set in the headwall facing Curran Road. There are also
separate trench drains without outlet pipes, which are designed
to trap sediments present in the water.
Beck acknowledged that no property boundary survey had been
done prior to commencing the work and that the location of a
planned headwall had to be moved because it was protruding onto
the Paolino Property. TR VI, 61:6-14, 62:20-23. According to
Beck, Commonwealth designed and installed the system; however,
the company had no role in the required maintenance. TR VI,
68:23-69:3. Beck noted that, although she saw some maintenance
reports,
she
did
not
personally
know
whether
all
required
maintenance had been performed because Commonwealth had not been
tasked with that responsibility. TR VI, 69:4-24. Beck also had no
44
involvement in monitoring the site for turbidity or in selecting
the locations for turbidity monitoring. TR VI, 74:3-17.
13. Richard Lavengood
Richard Lavengood (“Lavengood”), an engineer and certified
toxic
use
reduction
Engineering,
which
planner,
specializes
is
in
the
principal
assisting
of
RELCO
businesses
in
complying with state and federal regulations, including EPA and
RIDEM. TR VI, 86:6-25. Lavengood works with more than a hundred
auto recycling facilities on stormwater pollution prevention. TR
VI, 87:13-17.
RELCO prepared a stormwater management plan for LKQ in order
to bring it into compliance with the Rhode Island stormwater
regulations. RELCO then filed a Notice of Intent with RIDEM,
requesting a permit to do the necessary work. TR VI, 88:4-13. The
plan developed by RELCO included testing, training of personnel,
and dealing with incidents.
A team of RELCO and LKQ members is
responsible for implementing the plan. TR VI, 89:1-4.
According to Lavengood’s uncontroverted testimony, unlike
LKQ, most facilities of its kind have no treatment systems and
some of them have only a third of the measures which LKQ has
instituted;
none
of
Lavengood’s
clients
have
ever
spent
$1
million on stormwater treatment. Lavengood summarized the steps
in the automobile recycling operation, TR VI, 89:14-90:20, which
45
was essentially consistent with the description provided by David
Holzinger.
Lavengood
also
explained
that
the
crushed
cars
described by Dr. Roseen were placed alongside the earth berms in
order to protect the berms from traffic on the site. TR VI, 91:215.
Lavengood’s first involvement with LKQ stemmed from RIDEM’s
issuance of an NOI to the Defendants, which required LKQ to
install a stormwater treatment system. TR VI, 91:16-92:1. RELCO
prepared
the
SWPPP
(Stormwater
Pollution
Prevention
Plan)
detailing how LKQ would comply with RIDEM regulations. TR VI,
92:6-12.
In
2011,
after
the
whole
system
had
already
been
approved by RIDEM, RIDEM called for turbidity assessment. TR VI
93:4-15.
In
response,
program,
which
RELCO
included
created
a
investigating
turbidity
possible
monitoring
sources
of
turbidity and eliminating or minimizing them. TR VI, 93:16-24. As
part of that effort, LKQ paved roads, planted grass on hill
sides, installed riprap, built secondary trenches, placed large
coconut pads in the bottom of all slit trenches, purchased a
street sweeper to eliminate dust from the pavement, placed terra
logs in the outputs to collect dirt and particles, and filled
six-foot-deep trenches with crushed stone to prevent erosion. TR
VI, 95:2-96:23.
By letter dated August 24, 2010, Holzinger informed Pat
46
Hogan at RIDEM of the modifications LKQ was implementing at the
Property in order to address the turbidity problem. Ex. X. The
implementation of additional measures took about a year, after
which Lavengood informed Pat Hogan at RIDEM that significant
improvements had been made.
Ex. BB. Lavengood sent a further
progress report to RIDEM in February 2012. Ex. CC, TR VI, 98:1499:12.
Pursuant to RIDEM requirements, RELCO continues to perform
quarterly monitoring of the system and quarterly inspections at
the Property, and it prepares an annual report for submission to
RIDEM.
TR
VI,
105:25-106:9;
Ex.
II,
Ex.
KK.
Lavengood,
who
personally participated in annual and quarterly inspections, in
the course of which he also interviewed LKQ representatives,
testified
that
there
had
been
no
instances
in
which
the
stormwater overtopped the berms. TR VI, 109:18-110:18. As part of
his inspections, Lavengood determines whether any parts of the
systems require maintenance or cleaning and, as documented by a
number of invoices submitted in evidence, the long underground
pipes have been cleaned out and a remote-controlled camera has
been used to determine whether Lavengood’s determination that
cleaning was necessary was, in fact, accurate. TR VI, 113:2114:15. Lavengood was personally present on that occasion and the
system was subsequently cleaned. TR VI, 115:15-116:5. Lavengood
47
was also present during the cleaning of the Contech units. TR VI,
116:15-20. Lavengood noted that, although monitoring is required
only
once
per
quarter12,
monitoring
at
the
site
was
done
voluntarily four or five times per quarter, particularly after a
rainfall,
so
that
turbidity
problems
could
be
brought
under
control immediately. TR VI, 118:5-17.
Lavengood explained that, as outlined by EPA and adopted by
RIDEM, auto salvage yards sample their outfalls for iron, lead,
aluminum and total suspended solids, plus oil and grease per
RIDEM.
TR
VI
122:10-18.
LKQ
is
also
required
to
sample
for
turbidity. TR VI, 122:19-22. RIDEM uses EPA benchmarks for all
but
turbidity,
which
is
a
RIDEM
benchmark.
TR
VI,
123:5-9.
Lavengood further explained that an exceedance of a stormwater
regulation
does
not
constitute
a
Clean
Water
Act
violation.
Rather, the exceedance of a benchmark requires a response within
a two week period to address the exceedance. TR VI, 123:20-124:1,
124:8-25, TR VII, 7:15-8:3.
Lavengood acknowledged that, on several occasions, LKQ did
not meet the turbidity benchmark, but he noted that those results
did
not
signify
that
LKQ
was
not
in
compliance;
rather,
a
12
Lavengood noted that quarterly sampling had only been
instituted in November 2013; prior to that time, sampling was done
in alternate years and/or depending on the results of prior
sampling. TR VII, 3:15-4:20.
48
response to the exceedance was required. TR VII, 16:4-21. Each of
the five analytes at issue has a different benchmark and if any
one of them exceeds the respective benchmark by more than four, a
Corrective Action Plan must be prepared. TR VII, 17:10-25. That
plan remains onsite until the results are reported to RIDEM at
the
end
of
the
year,
at
which
point
RIDEM
may
declare
a
violation. TR VII, 18:1-24.
IV.
Discussion
A. Dismissal of CWA Claims in State Court
In
their
post-trial
summary judgment,
memorandum
(as
in
their
motion
for
Dkt. No. 49, and their motion in limine, Dkt.
No. 89), the Defendants assert, inter alia, that the Plaintiffs’
CWA
claim
is
barred
because
all
claims
brought
against
the
Defendants under the CWA were dismissed with prejudice in the
state court action in May 2012. In response, the Plaintiffs offer
an affidavit by one of their counsel who states that, although he
had no conversation with Defendants’ counsel or the state court
judge regarding what effect the stipulation of dismissal would
have on the CWA action pending in federal court, “it was [his]
understanding
that
the
Clean
Water
lawsuit
then
pending
in
Federal Court would continue unaffected by the Stipulation of
Dismissal.”
documentation
Bonin
was
Affidavit,
submitted
Dkt.
to
49
No.
support
93-1.
the
No
other
Plaintiffs’
understanding of the effect their voluntary dismissal would have.
It is undisputed that CWA claims in the state action,13
which involved the identical parties and the same facts as this
case, were dismissed by written stipulation with prejudice. Ex.
NN. Likewise, it is undisputed that the Plaintiffs first brought
CWA claims in state court in November 2009, (which were removed
to this court and then dismissed without prejudice) and that
Plaintiffs again asserted CWA claims in state court in January
2010 and March 2012, while reasserting CWA claims in this Court
in June 2011 (which they voluntarily dismissed without prejudice)
and in January 2012.
In
other
words,
the
claims
asserted
in
the
state
court
action precede, at least in part, the CWA claims raised in this
Court. Moreover, the Defendants are correct in pointing out that
the Plaintiffs voluntarily dismissed their claims under the CWA
twice: once in this Court, without prejudice, in August 2011, and
once in state court, with prejudice, in May 2012.
Pursuant to Rule 41 of the Federal Rules of Civil Procedure,
“[u]nless
the
notice
or
stipulation
states
otherwise,
the
13
The Court notes that the state court complaint refers
throughout to the “Federal Water Pollution Act,” not the CWA. The
Federal Water Pollution Control Act, enacted in 1948, has been
commonly known as the CWA since it underwent significant
reorganization and expansion in 1972. National Pork Producers
Council v. U.S.E.P.A., 635 F.3d 738, 742-43 (5th Cir. 2011).
50
dismissal is without prejudice. But if the plaintiff previously
dismissed
any
federal-
or
state-court
action
based
on
or
including the same claim, a notice of dismissal operates as an
adjudication on the merits.”
Fed. R. Civ. P. 41(a)(1)(B).
Counts XXVIII through XXX of Plaintiffs’ second amended 35count
state
court
complaint—which
is
not
a
model
of
clarity—assert violations of the “Federal Water Pollution Act”;
Count
XXXI
asserts
a
violation
of
the
Rhode
Island
Water
Pollution Act.14 The factual assertions in all four counts are
identical: the Plaintiffs allege that each of the Defendants
discharges contaminated waste and/or hazardous waste into a brook
that ultimately flows into Providence Harbor. Ex. MM ¶¶ 142, 147,
152, 157. By contrast, the Complaint in the instant case is
significantly
more
contamination
on
comprehensive
the
Paolino
and
includes
Property,
allegations
uncorrected
of
turbidity
problems, and irregularities in permitting.
Although it is likely that the state court claims overlap,
to some degree, with the claims asserted under the CWA in this
Court, it is unclear and the Court cannot say with certainty,
that the claims in this case are identical to those raised in the
state
court
action.
However,
that
determination
is
of
no
14
Count XXVIII is specific to LKQ; Count XXIV relates to Ferreira,
d/b/a Advanced Auto;, Count XXX relates to the Trust; and Count
XXXI relates to LKQ as well.
51
consequence to the outcome in this case because the Court has
concluded that the Plaintiffs’ CWA claims in this case fail on
the merits.
B. The CWA Claim
Although the CWA generally prohibits the discharge of any
pollutants into navigable waters, see 33 U.S.C. § 1311(a), the
discharge of such effluent is permissible if it is authorized by
a valid NPDES (National Pollutant Discharge Elimination System)
permit or, in this case, a RIPDES permit issued by RIDEM, the
authorized state permitting agency. 33 U.S.C. § 1342. In addition
to state and federal enforcement of the CWA, a private citizen
“may bring a civil enforcement action in federal district court
against an NPDES permit holder for failure to comply with that
permit’s conditions.” Paolino v. JF Realty, LLC, 710 F.3d at 35.
To support their citizen suit under the CWA in this case, the
Plaintiffs were required to prove that the Defendants discharged
a pollutant from a point source into navigable waters without a
permit. 33 U.S.C. §§ 1311(a), 1342(a), 1362(12), 1365(a)(1), and
1365(f)(1).
None of the testimony offered by the Plaintiffs served to
establish that the Defendants were in violation of the CWA. It is
undisputed that a RIPDES permit was issued with respect to the
Property. The Defendants’ efforts to bring the Property into
52
compliance with the conditions imposed by RIDEM prior to issuance
of the permit, as well as the additional and extensive measures
taken by the Defendants to comply with the permit’s conditions
were well documented and submitted at trial.
Both properties involved in this dispute have a long and
checkered environmental history. Together, the properties were
operated as a pig farm and an unlicenced dump for both solid
waste and chemicals; the properties were also periodically stripmined. During the 1970s, RIDEM first stepped in and began to
regulate the properties.
In 2005, RIDEM required the owner of the Property to develop
a stormwater management plan. In response, over the course of
several years, a stormwater management system was designed and
approved by RIDEM, as was the construction of that system. In
2007,
RIDEM
Property;
issued
a
subsequently,
RIPDES
the
permit
system
to
was
the
owner15
amended
and
of
the
approved
several times.
After RIDEM issued an NOI regarding turbidity issues, a
Corrective Action Plan was developed in 2010 and approved by
15
It is noted that, although the RIPDES permit was issued to the
Trust at a time the Property had already been transferred from the
Trust to JF Realty, both entities were controlled by Ferreira.
Ferreira was also in control of the entities that conducted
automobile recycling on the Property. This Court’s fact finding or
analysis is not affected thereby. See Section IV. D. herein.
53
RIDEM.
By
all
accounts,
as
a
result
of
RIDEM’s
continuous
involvement in the Property, and with RIDEM’s approval of both
the design and construction of the system, JF Realty, with the
help of Commonwealth and RELCO, installed a comprehensive (and
costly) stormwater management system on the Property. The system
was specifically designed to address all of RIDEM’s concerns and
bring
the
Property
into
compliance
with
environmental
regulations. Although turbidity had not been an issue at the
inception of this process, a multi-faceted approach was taken by
Commonwealth and RELCO to improve turbidity in the stormwater
runoff. To the extent the frequent sampling showed an exceedance
of
turbidity
standards,
the
results
were
duly
recorded
and
responded to with additional measures. It is also noted that such
exceedances
noncompliance
did
not
with
constitute
state
a
violation
regulations
per
of
se;
the
CWA
rather,
or
they
required a response to address the findings.
In the interim, in 2006, shortly after his offer to sell his
property
to
Ferreira
had
been
summarily
rejected,
Paolino
commenced litigation against the Defendants. After his federal
claims were dismissed (without prejudice) and his state-based
claims remanded to state court, Paolino proceeded to trial in the
state court, while reinitiating CWA and trespass claims against
54
the Defendants in this Court.16 Paolino dismissed the majority of
his claims in state court with prejudice (including any claims
brought against the Defendants under the Clean Water Act and any
claims related to the two parcels he had previously sold to the
developer). State Court Complaint, Counts XXVIII-XXXI, Ex. MM;
Stipulation,
Ex.
NN.
Eventually,
the
state-based
case,
now
reduced to several trespass claims, was tried before a jury,
which awarded total nominal damages of $1,400 to Paolino. Ex. 16.
Following Paolino’s motion for entry of final judgment, the state
court denied Paolino’s claims for injunctive relief, with the
exception
of
the
removal
of
a
portion
of
a
metal
building
encroaching on the Paolino Property. Ex. OO. The state court
specifically
rejected
Paolino’s
demand
that
the
Defendants
“return the site to its previous condition prior to installation
of the stormwater system,” finding that “the surface water flow
is consistent with the historical drainage pattern, [and] the
impact to the Plaintiffs is de minimis.” Ex.
finding
is
consistent
with
RIDEM’s
OO at 2. This
conclusion,
following
a
16
To summarize, Paolino first filed state-based claims against
the Defendants in state court. After he filed several amendments
and added federal claims, the Defendants removed the case to this
Court. The federal claims were dismissed without prejudice and the
state-based claims were remanded. While the case was pending in
state court, Paolino filed another complaint in this Court, which
he dismissed voluntarily, without prejudice, after which he filed
a third complaint, which is the basis of the instant litigation.
55
multimedia
inspection
of
the
Property
in
March
2008,
that
stormwater is not being discharged onto the Paolino Property.
In
sum,
the
evidence
and
testimony
offered
at
trial
establish that the Defendants, with the input and approval of
RIDEM, built a state-of-the art stormwater management system on
the
Property,
which
was
designed
to
address
all
aspects
of
stormwater runoff and to bring the Property into compliance with
environmental
regulations.
The
descriptions
of
the
various
components of the system, their function, and the additional
efforts by the Defendants to bring the turbidity under control
were undisputed.
No convincing evidence to the contrary was submitted by the
Plaintiffs. The conclusions arrived at by Dr. Roseen, retained by
the Plaintiffs only two weeks before disclosure of his report was
required, were guided, in part, by observations which a staff
member made from the neighboring property, on a day where much of
the ground was covered by snow. As a result, there appears to
have been some significant misunderstanding of at least some of
the
components
of
the
system
and
their
functions,
i.e.
the
significance of a stack of crushed cars intended to protect the
packed soil berms designed to guide the flow of water, not to
contain it. Dr. Roseen’s computer model also appeared to be based
on
incomplete
data
(at
least
56
a
portion
of
which
was
not
referenced in his report), and his prediction of more then 250
incidents
of berm
contradicted
by
overflow
the
in
testimony
a
five-year
period
was
of
several
witnesses
flatly
who
were
frequently present on the Property, and who reported that the
berms had not overflowed since the system had been installed.
In order to support their claims against the Defendants and
to convince RIDEM to investigate the Property further and/or to
send
an
LOR
to
the
Defendants,
the
professional engineer Alvin Snyder.
Plaintiffs
also
engaged
However, it was undisputed
that the samples Snyder collected and sent to RIDEM were not
taken at the Property; rather, they came from the area along
Curran
Road
that
is
fed
by
at
least
five
separate
sources.
Accordingly, RIDEM, although it did respond to Synder’s report by
sending
RIDEM
staff
to
the
Property,
deemed
the
samples
insufficient.
C. RIDEM’s Regulatory Oversight of the Property
As
established
by
the
detailed
testimony
of
witnesses,
including RIDEM staff, RIDEM was involved with the Property for
many years, particularly and frequently since 2005. Inter alia,
RIDEM issued an Notice of Intent to Enforce (“NOI”) to the owner
of the Property in March 2005, requiring immediate temporary
controls to prevent the discharge of stormwater pollutants and
the submission of a RIPDES permit application. Ex. 4. RIDEM next
57
required
installation
approved
the
design
of
and
a
stormwater
construction
management
of
the
system;
system;
required and approved certain amendments thereto.
it
and
it
In April 2008,
RIDEM issued an NOI to the Trust, advising it of a water quality
violation
related
to
stormwater
discharge
and
imposing
an
administrative penalty. Ex. 8 at pages 4-6 of 18. Subsequently
(and repeatedly thereafter), RIDEM inspected the Property and
required a Corrective Action Plan to address turbidity of the
flow. In March 2010, RIDEM issued an NOV to the Defendants. In
September 2010, RIDEM directed the Defendants to correct the
outdated information regarding ownership and operation of the
Property.
Ex.
9.
At
the
time
the
complaint
underlying
this
litigation was filed in January 2012, an administrative action by
RIDEM was pending against the Defendants and ultimately resulted
in payment of an administrative fine. Ex. 13. Following numerous
complaints by Paolino to RIDEM directly, to the EPA, and to local
authorities,
RIDEM
investigated
the
matter
repeatedly
and
informed Paolino that it had investigated his reports and that,
with one exception, his claims were without merit. RIDEM also
specifically
discharged
complaint
informed
onto
his
against
Paolino
that
property.
In
RIDEM
in
state
stormwater
response,
court,
was
not
Paolino
seeking
a
being
filed
writ
a
of
mandamus to compel RIDEM to “enforce all rules, regulations and
58
permit
conditions”
applicable
to
the
Defendants,
“suspension, revocation or termination of permits.”
including
Ex. PP at 1-
2. Since then, Paolino has sought to include the Defendants as
parties to his mandamus action. Ex. QQ.
In sum, RIDEM’s involvement with the Property and its key
role
in
causing
the
Defendants
to
construct
a
comprehensive
stormwater management system on the Property is undisputed and
well
documented.
responsiveness
Equally
to
well
RIDEM’s
documented
requirements
is
and
the
Defendants’
their
extensive
efforts to bring the Property into compliance.
D. Adequacy of the RIPDES Permit
Plaintiffs’ insistence that the Defendants are in violation
of the CWA because the RIPDES permit was applied for and/or
issued to
the
wrong
entity
is
non-availing.
As
evidenced
by
correspondence between RIDEM and the Defendants, the identity of
the
current
owner
and/or
operator
was
well-known
to
RIDEM.
Moreover, a change of ownership request for the Property was
submitted to the Fresh Water Wetlands Program and, once RIDEM
pointed out the lack of updated ownership information to the
Trust,
the
Defendants
promptly
took
steps
to
correct
the
situation. At most, their attempt to notify RIDEM of the property
transfer
failed
to
meet
the
technical
requirement
of
RIPDES
regulations; however, nothing in the CWA authorizes a citizen
59
suit for such a technical violation.
Conclusion
After considering the testimony of all the witnesses and
reviewing the evidence submitted by the parties, the Court finds
that the Plaintiffs have failed to meet their burden of proof and
that the Defendants have prevailed in this case. Pursuant to the
Clean Water Act provisions relative to citizen suits, the Court
“may award costs of litigation (including reasonable attorney and
expert
witness
fees)
to
any
prevailing
or
substantially
prevailing party, whenever the court determines such award is
appropriate,” 33 U.S.C. § 1365(d)(emphasis added). Accordingly,
the Defendants, if they so choose, are directed to submit a
request
for
costs
and
fees
within
fourteen
days
of
this
Memorandum of Decision. The Plaintiffs may then have fourteen
days to submit a response to the Defendants’ request.
SO ORDERED.
/s/ Mary M. Lisi
Mary M. Lisi
United States District Judge
November 19, 2014
60
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