State Shielded From CERCLA Suit

A property owner cannot use the federal Superfund law against state officials who dumped waste on her land after falsely telling her that they were running an anti-racketeering "sting" operation, according to a federal district court ruling [Prisco v. New York, No. 91-3990 (RLC), S.D.N.Y., Oct. 9, 1996].

Citing a U.S. Supreme Court decision, Seminole Tribe of Florida v. Florida, 116 S.Ct. 1114, the trial judge said that the federal courts had no authority to hear "causes of action brought under [the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) against the state and state agencies." The Seminole case, where the Supreme Court ruled that Congress had no power to open the federal courts to suits by private parties against states, is beginning to have noticeable ripple effects nationwide.

Besides throwing out CERCLA claims by Filorena Prisco against the state, the district court also blocked her suit against a number of private generators because she failed to link their waste to the release of hazardous substances at the site.

The court conceded that the type of construction and demolition (C&D) debris that was traced to certain generator defendants "typically" contained materials that can release hazardous substances. Nevertheless, such characteristics do not create liability without "a specific factual showing that the object in question was deposited by that defendant and did release hazardous substances," the opinion said.

The plaintiff had evidence that the generator defendants shipped metal pipes, wires, painted and stained wood, tires and carpets for disposal on her property. However, the trial judge was unimpressed; the testimony linking generators and specific wastes lacked credibility, the court found. And even if such testimony were credible, the court added, it did not establish that the wastes released hazardous substances at the site.

According to court records, in 1987, Prisco and her now late husband allowed defendant William Bubenicek, a former neighbor, to use their property for a C&D waste disposal operation. At the time, Bubenicek was a lieutenant with the New York State Department of Environmental Conservation (DEC).

After Bubenicek introduced the Priscos to Lloyd Ward, a New York State police officer, the couple felt confident that the DEC officials would manage the operation and would heed environmental laws. Years later, the state issued an order closing the site for environmental violations. Meanwhile, Bubenicek told the Priscos that he had been running a DEC "sting" operation. In the wake of state legislative hearings in 1990 on waste management practices, state authorities finally caught on to what Bubenicek had perpetrated at the Prisco property. Soon afterward, he was suspended and eventually fired.

The court also dismissed the plaintiff's claim against the state under the Resource Conservation and Recovery Act: Prisco un-successfully tried to show that the state should be held responsible for the actions of Bubenicek and Ward because of official acquiescence in their conduct, their apparent authority to act for the state, and general employer-employee legal doctrines.

Hazwaste Tragedy. A New York City sanitation worker died after breathing fumes from an illegally discarded container. Another worker was injured in the incident, which has triggered an investigation by the police and sanitation departments.

The container held hydrofluoric acid, a corrosive substance used to etch glass, according to fire department hazardous materials experts.

City officials have threatened to bring murder charges against the parties responsible for placing the acid. "The investigation is continuing," said the Brooklyn District Attorney's office. "Depending on what evidence is obtained in that investigation, there could be homicide charges if there is an arrest."

The tragedy occurred at a point in the collection route where the truck was almost full. "One of the workers was doing what they call 'cycling the blades', to compact, and the other turned away to pick up other material. He heard a pop, and this hydrofluoric acid sprayed out," said a Sanitation Department spokesperson.

The truck later was impounded, and a gallon container believed to have held the acid was recovered.

The incident was avoidable, said a Sanitation Department spokesperson. "The appropriate procedure in this case would have been to notify the Department of Envi-ronmental Protection [who would] then recommend the proper procedure for disposal," he said.

In New York City, the Sanitation Department normally picks up only residential garbage and public trash cans along the sidewalks. Private haulers remove commercial and industrial waste.

The Sanitation Department said the death was the first in three years for an on-duty worker.