Scott E. Mollen

Environmental—Plaintiffs Plausibly Alleged Landfill's Emissions Were More Than Mere Annoyance and May Contain Dangerous Chemical Compounds—NYC Agreement To Ship Municipal Waste—Private Nuisance and Trespass Claims Dismissed—Claims of Violation of Air Permit Under Clean Air Act, Violation of Resource Conservation and Recovery Act and Common Law Obligations Arising From Operation of Landfill Were Sufficiently Stated —Trespass—Negligence—Gross Negligence—Abstention Doctrines—Government Functions Immunity

Plaintiffs commenced an action against a waste management company (WM) and New York City (NYC), alleging violations of the Resource Conservation and Recovery Act (RCRA), the Clean Air Act (CAA) and common law obligations arising from WM's operation of a landfill and NYC's agreement with WM (NYC Contract) to ship "hundreds of thousands of tons of municipal waste" (MSW) to the landfill each year for 30 years. WM and NYC had moved to dismiss an amended complaint. WM's motion to dismiss was granted as to claims for private nuisance and trespass, but was otherwise denied and NYC's motion to dismiss was denied.

Plaintiffs alleged that the landfill's operations "prevented the quiet use and enjoyment of their property by emitting noxious odors and excess fugitive emissions, creating an environment conducive for the spread of vector species, and causing noise and tremors." The plaintiffs cited "increased populations of rats, mice, and flies within…nearby properties." Plaintiffs asserted that several landowners were considering selling their homes, some had done so and others "sought mental health counseling."

The plaintiffs also claimed that the odors had "permanently stigmatized the community," had created fear of "diminishing property values" and noxious emissions are "noticeable…at business and recreational locations and a local elementary school." Some landowners allegedly observed cracks in their homes caused by "tremors resulting from landfill activities," and experienced "headaches, eye, nose, and throat irritation, anxiety, and nausea…." Some plaintiffs allegedly had to spend money on "exterminators" and odor prevention equipment.

The landfill allegedly emitted "gaseous compounds as the MSW decomposes, including 'methane, carbon dioxide, and non-methane organic compounds….'" The complaint alleged that the DEC permit assumed that a "Collection System" would burn approximately 85% of all landfill gas, while the remaining 15% of emissions would be released into the surrounding environment. The plaintiffs asserted that gas released into the environment exceeded the 15% assumption due to "operating or maintenance deficiencies."

The landfill operates under a NYS Dep't of Environmental Conservation (DEC) permit. The complaint alleged that the DEC permit required WM to "prevent noxious odors from beginning nuisance conditions."

In 2015, NYC began to ship MSW to the landfill. The plaintiffs claimed that NYC's MSW is "significantly more odorous" since it takes "'weeks from curb pick-up to receipt by rail at the landfill,' thereby increasing the duration of pre-landfill decomposition." The NYC MSW allegedly constituted 75% and 71% of the total MSW deposited at the landfill in 2016 and 2017, respectively.

In 2017, WM and NYC entered into the NYC Contract. WM agreed to accept NYC MSW at the landfill for 30 years and WM agreed "to comply with all laws applicable to the Landfill, to report permit violations to NYC, and to make any necessary operating and management changes to resolve nuisance conditions."

The plaintiffs also claimed that WM, as a cost saving measure, failed to install certain horizontal gas collectors and instead relied upon "vertical gas wells" and that "was the primary cause of the excessive noxious emissions." The plaintiffs' alleged that in January 2018, WM "admitted that it had caused a public nuisance and…odors would likely worsen before they improved because the Landfill…needed to be retrofitted with Horizontal Gas Collectors, and new vertical gas wells were required because '40 percent of the existing vertical wells were not functioning.'" In February 2018, the DEC concluded that WM operated the landfill in violation of "state solid waste and air pollution control regulations and its permit obligations" and required WM to mitigate the deficiencies.

Although mitigation measures were taken, the plaintiffs claimed that the unacceptable odors persist. The DEC allegedly found "regular, continuing presence of Garbage Odors in the community." More than 2,000 odor reports had been filed based on 400 "distinct complaints" between June 13, 2018 and December 1, 2018. The DEC directed WM not to "dump NYC MSW and other waste delivered via rail on any operating day prior to 10:15 a.m." and WM was "required to process all rail cars of NYC MSW on the business day following delivery."

The DEC also supported a 12-month "study evaluating whether rail cars of NYC MSW were more 'ripe' in summer months and whether the NYC MSW was a significant contributor to the Landfill's odor problems." Additionally, WM's use of "chemical deodorizers" allegedly masked the odors, caused people to feel ill and tremors reverberated from the landfill, notwithstanding that WM had "apparently installed a flare reverberation control system."

Although the DEC denied requests made in an administrative petition, the DEC imposed certain additional requirements on WM.

The court concluded that neither "Burford Abstention nor primary jurisdiction" were appropriate grounds to dismiss the CAA or RCRA causes of action. See Burford v. Sun Oil Co., 319 U.S. 315 (1943). It also held that the Colorado River abstention doctrine is also inapplicable. See Colo. River Water Conservation Dist., 424 U.S. 800 (1976). The "political question doctrine calls for a careful…analysis into whether a matter has been committed by the Constitution to another branch of government or whether the action of that branch exceeds whatever authority has been committed."

The court held that the political question doctrine was inapplicable and that it was "well-within the competency of a federal court to decide" whether the defendants violated the subject regulatory requirements. The court also held that NYC was "not entitled to government function immunity where,…NYC is alleged to have participated in the creation of a public nuisance and is allegedly contributing to the…disposal of solid waste in a manner that states a RCRA Endangerment Claim."

The court found a "sufficient causal nexus between NYC's conduct and the alleged RCRA violation." The complaint adequately alleged that "NYC's agreement to transport…tons of MSW to the landfill satisfied RCRA's 'contributing to' requirement." The complaint alleged that NYC "generates and collects solid waste before transporting it to the Landfill and is 'responsible for the proper disposal' of its MSW" and that disposal of the NYC MSW "worsened" the emissions released from the landfill and contributed to the community's harm. The court found it "reasonable to infer from plaintiff's allegations that NYC has 'helped to bring about' these nuisance conditions."

The court cited allegations that WM's disposal of NYC MSW violated federal and state requirements and stated that whether WM "reported its alleged operational deficiencies to NYC, whether NYC exercised any oversight over (WM's) operations or should have done so, and the extent to which NYC's MSW has caused the alleged nuisance, are factual questions not appropriately determined on a motion to dismiss."

The court reasoned that "[a]t least at this stage of these proceedings, a sufficient nexus has been established under the principle that 'a generator of solid waste if subject to liability even when someone else conducted the disposal at the generator's request.'" Thus, the plaintiffs had "plausibly alleged that NYC has 'contributed' and is 'contributing to' the 'handling' of solid waste at the landfill." The court noted that the RCRA "is a sweeping statute intended to regulate solid waste from cradle to grave."

The court also found that "the plaintiffs' allegations establish that the landfill's activities pose a sufficiently 'imminent' and substantial harm." Among the compounds that were allegedly released into the environment were "benzine compounds, a commonly known carcinogen able to cause respiratory issues after acute exposure." Thus, the complaint sufficiently alleged that the landfill's emissions "constitute more than a mere annoyance but may in fact contain dangerous chemical compounds." The court noted that "whether the plaintiffs can demonstrate that exposure to these emissions is harmful and is occurring or may reoccur in the reasonably foreseeable future, are questions best answered after discovery."

However, since that the alleged nuisance conditions were "too widespread and threatened far more than one or a few individuals, to constitute a 'private nuisance,'" the court dismissed the private nuisance cause of action.

With respect to the public nuisance claim against WM, since the plaintiffs had allegedly "suffered diminished property values, lost use of their homes, and health implications due to the Landfill's operation, and because these injuries constitute particularized harms, whether the plaintiffs have alleged a 'special injury,' hinges upon the proper scope of the relevant 'community.'" Citing judicial precedent, the court denied WM's motion to dismiss the public nuisance claim against WM.

The complaint alleged that "[b]y the collection, transport, and disposal of the NYC Garbage, NYC has caused, or has substantially contributed to causing, the Garbage Odors, and/or in spite of having a reasonable opportunity to abate the nuisance by investigation and remediation of the Garbage Odors, has failed to do so in a reasonably prompt and effective manner, and/or has failed to cause (WM) to do so by enforcing the NYC Contract, and has interfered with the rights common to all, and/or has assumed liability for that interference." The court further held that at this stage of the litigation, the plaintiffs had "plausibly alleged that NYC's conduct is a proximate cause to a public nuisance."

NYC had the contractual authority to direct "changes to the (WM) operating schedule for disposal operations at the landfill" and NYC's "continued shipment of…tons of MSW cannot be analyzed in isolation from (WM's) allegedly unlawful conduct." The plaintiffs alleged that NYC's "shipments of MSW coincided with (WM's) decision to refrain from installing Horizontal Gas Collectors…" and that the odors escalated when WM began receiving NYC MSW and had worsened when NYC MSW volume increased. Since NYC MSW constituted a significant amount of the landfill's waste, the court opined that NYC's actions "cannot be discounted as 'the dominant and relevant fact without which the public nuisance would not have resulted where and under the circumstances it did….'" "If NYC helped create a nuisance, it cannot absolve itself of all responsibility by simply stating that it did not own or operate the landfill. NYC had a duty to halt or reduce the waste it shipped to the Landfill if it had known, or it should have known, that its actions were creating nuisance conditions." Thus, the court denied NYC's motion to dismiss the public nuisance cause of action.

Since WM "owes the same duty of care to plaintiffs as adjacent land owners and residents, 'to operate the Landfill in a reasonable manner,'" the court denied WM's motion to dismiss the negligence claim.

Citing WM's allegedly reckless elimination of horizontal gas collectors, WM's alleged misrepresentations that it would install horizontal gas collectors in its permit and environmental impact review materials, as well as WM's alleged modification of its collection system, WM's initial response of investigating whether odor complaints were "politically motivated," without considering whether changes to handling practices were necessary and ignoring potential nuisances, the court concluded that such allegations "'smacks' of intentional wrongdoing or 'evinces as a reckless disregard for the rights of others.'" Accordingly, the court denied WM's motion to dismiss the gross negligence claim.

The court then dismissed the plaintiffs' claim for trespass. It explained that New York law "does not recognize a trespass claim based on intangible invasions upon real property." Although a trespass action may include "the entry of a substance onto land," decisional precedent would permit such claim "only in the context of liquid or solid substances, not merely gaseous ones…."

The court then held that WM's motion to dismiss plaintiffs' punitive damages claim – was premature and declined to stay the plaintiffs' claims for monetary damages. Based on the allegations of serious ongoing violations of federal and state law, the court saw "no reason to stay plaintiffs' claims for monetary damages" pending "DEC action that may or may not take place within some indefinite time frame and with uncertain effect."

Thus, WM's motion to dismiss the amended complaint was granted as to the private nuisance and trespass claims, but was otherwise denied and NYC's motion to dismiss was denied.

Fresh Air for the Eastside Inc. v. Waste Management of New York LLC, U.S. District, W.D.N.Y., Case No. 6:18-CV-06588, decided September 16, 2019, Wolford, J.

Borrowers' Assignee Was Not a "Borrower" For Purposes of Standing To Bring a RESPA Claim—Qualified Written Request

A plaintiff filed a complaint, alleging that the defendant mortgage servicer (defendant) violated the federal Real Estate Settlements & Procedures Act (RESPA), by failing to respond to requests for information about a mortgage note and mortgage (mortgage) executed by (borrowers), relating to their former residence. The defendant had moved to dismiss.

The borrowers had assigned their "rights and interests of certain mortgage-related promissory notes," related to their prior home, to the plaintiff (assignment). Shortly thereafter, the plaintiff sent a letter to the defendant requesting "the identity of the current owner" of the borrowers' mortgage, the "date the owner…acquired the mortgage loan and mortgage," and the "contact information for the owner."

The plaintiff identified his correspondence as a qualified written request (QWR), and included two letters designated as QWRs from the borrowers and the assignment document. Thereafter, the plaintiff emailed the defendant requesting a copy of the borrowers' mortgage note and indicated that he was authorized to receive such information pursuant to the assignment. The defendant responded that it was unable to provide information regarding the mortgagor's account "without obtaining written authorization from the mortgagor."

The plaintiff then sent a letter to the defendant, identifying it a QWR and requesting the previously requested information. This letter included additional loan identification information. Again, the defendant declined to provide such information and instructed the plaintiff to resubmit his request along with a "Third Party Authorization Form, executed by the mortgagors." Rather than submit form, the plaintiff filed the subject action.

The defendant challenged the plaintiff's standing, asserting that the plaintiff was not a party to the loan and could not have been damaged by the alleged RESPA violation. The defendant also argued that the plaintiff failed to allege actual damages and that the alleged QWRs "are not QWRs within the meaning of RESPA." The alleged QWRs did not "request information concerning the 'servicing' of the (loan), nor did they contain any information relating to an alleged error." The defendant contended that even if the plaintiff had standing, the documents cited by the plaintiff were "insufficient to trigger any obligation or liability under RESPA."

The plaintiff countered that there were issues to be decided on the FRCP 12(b) motion and that he has "suffered actual damages in addition to statutory damages," since he was "compelled to pay legal counsel to issue subpoenas…in an attempt to obtain the information that (defendant)…refused to provide as under the RESPA statute."

The court explained that RESPA is a "consumer protection statute" and a "defendant's liability in a civil action under RESPA is limited to borrowers." The court held that the plaintiff lacked standing since he was not a "borrower or otherwise obligated" on the mortgage…and "did not suffer an injury—in—fact." Rather, the plaintiff "was simply assigned their 'rights and interests of certain mortgage related promissory notes.'"

The plaintiff was "not a party to the mortgage…," had not "alleged his name was added to the…loan, or he holds the deed associated with it" and did not allege "any relationship to the (borrowers), or that he was a party to the (borrowers') loan before assignment."

The court noted that although some courts dismissed RESPA claims based on lack of standing, some courts "have found that the issue is more appropriately styled as failing on the merits, or in other words, a lack of a statutory cause of action."

A QWR under RESPA must "(1) be a written correspondence, other than notice on a payment coupon or other payment medium supplied by the servicer; (2) include, or otherwise enable the servicer to identify, the name and account of the borrower; and (3) include a statement of the reasons for the borrower's belief, to extend implacable, that the account is in error or provides sufficient detail to the servicer regarding other information sought by the borrower." The QWR must be related to the "servicing of the loan" and RESPA defines servicing as "receiving any schedule periodic payments from a borrower pursuant to the terms of any loan,…and making the payments of principal and interest and such other payments in respect to the amounts received from the borrower as may be required pursuant to the terms of the loan." Such requirement "ensures that the statutory duty to respond does not arise with respect to all inquiries or complaints from borrowers to servicers…."

The court stated that the RESPA cause of action "is limited to 'borrowers.'" Since the plaintiff was not personally obligated on the mortgage loan, it cannot be deemed a "borrower" under RESPA.

Moreover, even if the plaintiff was a borrower under RESPA, the plaintiff's correspondence did not "trigger Defendant's obligation to respond because the information sought by plaintiff was unrelated to the servicing of the loan." The communications "failed to assert an account error or establish any connection between the information sought and the servicing of the loan." The defendant was not required to "respond to all inquiries or complaints from borrowers."

Even if plaintiff could establish that the assignment was valid, and the plaintiff had assumed the risk of the borrowers' mortgage, RESPA is inapplicable to "any assumption in which the lender does not have the right expressly to approve a subsequent person as the borrower on an existing federally related mortgage loan." Moreover, even if the plaintiff has assumed liability under the mortgage, he failed to allege "that he was approved by the lender to assume that risk." Thus, the court held that RESPA was inapplicable to the assumption and the complaint was dismissed as a matter of law.

Garrasi v. Selene Finance LP, U.S. District Court, N.D.N.Y., Case No. 1:19-CV-370, decided September 11, 2019, D'Agostino, J.

Scott E. Mollen is a partner at Herrick, Feinstein.