Clean Water Act: Lewis v. FMC Corporation

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U.S. District Court, Western District of New York

Clean Water Act

Lewis v. FMC Corporation
04-CV-331
Judge Skretny

Background: Plaintiffs, residents of the Village of Middleport, Niagara County, N.Y., commenced this citizen suit on April 30, 2004, asserting claims under the Resource Conservation and Recovery Act of 1976, the Clean Water Act, and the common law of the State of New York. They seek injunctive relief, damages, and the imposition of civil penalties against defendant FMC Corporation for its alleged violations of federal environmental law on real property located in the Village of Middleport. FMC has moved to preclude the plaintiff’s expert and for summary judgment.
FMC owns and operates a pesticide formulations facility situated on approximately 91 acres in Middleport. The northern portion of the facility was used for the manufacture and/or formulation of pesticide products beginning in the 1920s. As a result of pre-1974 waste handling practices, soils and groundwater in the northern half of the facility were extensively contaminated.

Ruling: The defendant’s motion for summary judgment is granted. As the court points out, the plaintiffs provided no affidavit, map or other evidence that any of their properties are located north of the facility along Culvert 105 such that chemicals may have migrated to their properties in stormwater discharges as well as from air depositions. The plaintiffs also have not established standing relative to their claim of diminished property values due to FMC’s stormwater discharges. They have provided no expert opinion or factual evidence that would establish, or even suggest, an injury-in-fact. The plaintiffs also have not established a causal connection between FMC’s SPDES discharges and elevated levels of arsenic or other toxins on their properties.

David J. Seeger for the plaintiffs; Hugh M. Russ III of Hodgson Russ LLP for the defendant