Chart v. Town of Parma

JOHN CHART, Plaintiff, v. TOWN OF PARMA, Defendant.

10-CV-6179P

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

September 30, 2014

DECISION & ORDER

PRELIMINARY STATEMENT

Plaintiff John Chart ("Chart") has sued defendant Town of Parma (the "Town") over alleged contamination of the Town Park (the "Park") with topsoil containing unsafe levels of arsenic, lead, DDT, DDD and DDE. (Docket # 12). Chart has sued under the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6972(a)(1)(B).¹ Chart seeks an injunction requiring the Town to remediate the contamination, as well as response costs, attorneys' fees and other expenses.

According to the Complaint, in 2003 the Town purchased 1086 cubic yards of topsoil from Crowley Development Corporation ("Crowley") to make improvements to the Park. (Id. at ¶ 21). The topsoil that Crowley sold to the Town originated in a former apple orchard. (Id. at ¶¶ 19, 21). Pesticides including arsenic, lead, DDT, DDE and DDD were allegedly used in the orchard, resulting in contamination of the soil. (Id. at ¶ 20). The Town used the soil itpurchased from Crowley to backfill the Park's football, baseball and other multi-use fields. (Id. at ¶¶ 18-24).

Currently pending before the Court is the Town's motion to preclude the testimony of Chart's expert James D. Okun ("Okun"), LSP, and for summary judgment. (Docket # 65). Chart opposed the motion and filed an affidavit sworn by Okun (the "Okun Affidavit"), a supplemental report authored by Okun (the "Second Okun Report") and an affidavit sworn by Chart's other expert David D. Day ("Day") (the "Day Affidavit"). (Docket ## 69-25, 69-40, 69-41). Also pending before the Court is the Town's motion to strike the Okun and Day Affidavits and the Second Okun Report. (Docket # 70).

I. The Town's Motions to Preclude Okun and to Strike the Second Okun Report and Okun's and Day's Affidavits

A. The Expert Reports and Affidavits

1. Okun's First Report and Testimony

Okun is an environmental chemist and toxicologist. (Docket # 65-10 at 2). He received an undergraduate degree in chemistry from Massachusetts Institute of Technology in 1975, and three years later he obtained his master's degree in toxicology from the same institution. (Id. at 14). Okun has worked in the environmental field for the past thirty years performing assessments of chemicals in the environment and their potential impact on human health. (Id. at 2, 14). According to his report, Okun was retained by Chart to provide an analysis and opinion "regarding the potential for health and environmental risks arising from arsenic concentrations" at the Park. (Id. at 2). To do this, Okun reviewed the history of the alleged contamination of the topsoil and its placement at the Park on the football field and other locations. (Id. at ¶¶ A-C). Okun's report is dated April 30, 2013. (Id. at 13).

Okun reviewed the results of soil sampling performed on the soil of the Park's football field. (Id. at ¶¶ E-G). According to Okun, those results indicated that arsenic levels in the football field were five to ten times greater than the expected background concentration of arsenic of between five to ten parts per million ("ppm"). (Id. at ¶¶ F-G, M). Okun also visited the Park and photographed the football field. (Id. at ¶ J and Exhibit ("Ex.") D). According to Okun, most areas of the football field were covered by grass; however, the field contained some spots that were either completely bare or only sparsely covered with grass. (Id. at ¶ K).

Okun's report explains the adverse health effects associated with arsenic exposure, including an increased risk of cancer. (Id. at ¶¶ M-W). Okun also identified regulations promulgated by the New York Department of Environmental Conservation ("DEC") applicable to arsenic contamination. (Id. at ¶¶ X-AA). In addition, Okun identified a recent report authored by the New York State Department of Health ("DOH") that determined that arsenic concentration levels of less than 1.0 ppm were associated with a one in one million cancer risk level.² (Id. at ¶ AA). According to the report, because background levels of arsenic in soil typically exceed 1.0 ppm, the DOH recommends that arsenic remediation goals should be evaluated by reference to the expected background concentration. (Id.).

Okun's report next calculated the exposure point concentration for arsenic at the football field. (Id. at ¶¶ BB-DD). According to Okun, the "exposure point concentration" for a particular site is a "reasonable estimate of the average concentration of a hazardous constituent that a receptor is likely to be exposed to over a number of individual exposure events." (Id. at 9). Okun used a 95% upper confidence limit to calculate the exposure point concentration. (Id. at¶ CC). Okun calculated the exposure point concentration using the results from the soil sampling at the Park. (Id. at ¶ DD). According to Okun, he calculated that the exposure point concentration was approximately 53.87 mg/kg of arsenic in the soil at the football field. (Id.).

Next, Okun attempted to identify the "receptors," or the people, who were most likely to be exposed to the soil at the Park. (Id. at ¶¶ EE-GG). According to Okun, likely receptors included individuals playing on the field, spectators and anyone else using the field. (Id. at ¶ EE). In addition, Okun opined that because arsenic does not degrade over time, potential future uses of the football field should be considered, including the field's potential future use for residential or school grounds purposes. (Id. at ¶ FF).

Okun also evaluated the likely dose range associated with arsenic ingestion. (Id. at ¶ HH). According to the report, Okun calculated that the dose range from oral ingestion was 4.885 to 10.77 micrograms of arsenic per day. (Id. at ¶ II). In his report, Okun indicated that the lower number represented the likely daily dose of arsenic for a child using the football field as a football field. (Id.). The higher number represented the likely daily dose if the field were used as residential property. (Id.).

Next, Okun calculated the non-carcinogenic health risk resulting from exposure to soil in the football field. (Id. at ¶ JJ). To do this, Okun identified that reference dose for arsenic as 3x10^-4 mg/kg per day. (Id.). For a child who weighs 20 kg, Okun opined, any dose in excess of 6 micrograms per day would likely pose a significant non-carcinogenic risk. (Id.).

Okun also calculated the carcinogenic health risk resulting from exposure to the arsenic levels in the soil at the football field. (Id. at ¶ KK). According to Okun, the cancer risk is calculated using the cancer slope factor promulgated by the United States Environmental Protection Agency ("EPA"). (Id.). For arsenic, the cancer risk factor is 1.5 mg/kg per day. (Id.).According to Okun, using this number, an excess lifetime cancer risk of 1 in 10,000 would be associated with ingestion of approximately 4 micrograms of arsenic per day. (Id.). Having calculated both the carcinogenic and non-carcinogenic risks, Okun opined that the concentrations of arsenic in the soil at the Park exceed the safe levels for both risks. (Id. at ¶ LL).

Okun concluded that under New York regulations the arsenic concentrations in the football field at the Park would be considered a hazardous substance and would require remediation with an objective of reducing the concentrations to 13ppm. (Id. at ¶¶ MM & NN). According to Okun, New York regulations provide that 13ppm is the appropriate risk-based cleanup objective to protect ecological resources from arsenic concentrations. (Id. at ¶ PP). Thus, Okun concluded that the arsenic concentrations at the Park, which are approximately four times greater than the objective, present a potential hazard to the environment. (Id. at ¶¶ NN & SS). He further concluded that the arsenic concentrations were likely to cause physical injury or illness to humans. (Id. at ¶ RR). Okun opined that the arsenic contaminated topsoil at the Park poses an imminent and substantial threat to human health or the environment and that remediation was "urgently necessary." (Id. at ¶ UU).

During his deposition, Okun testified that he generally employs the same methodology whenever performing a quantitative risk assessment analysis. (Docket # 65-11 at 7). First, he attempts to determine the nature and extent of contamination at the relevant site through sampling and testing of the soil. (Id.). Next, he performs an exposure assessment consisting of two steps. (Id.). The first step involves calculating the exposure point concentration, which is the amount of contaminant to which potential receptors will be exposed. (Id.).

Next, he attempts to determine how potential receptors will be exposed to the contaminant. (Id. at 8). According to Okun, this can be done in two ways. (Id.). The first way is to conduct a baseline risk assessment that assumes that the site in question is not under any particular use restrictions. (Id.). Thus, the baseline risk assessment calculates the maximum reasonable exposure, assuming that the site is used as a residential property. (Id.). Okun testified that in addition to conducting a baseline risk assessment that assumes no site-specific limiting assumptions, a risk assessment may also account for site-specific limitations actually implemented at a site. (Id.). To do this, instead of using a residential-exposure scenario, a particular site may be assessed with reference to the actual use by the owner and account for those use limitations when calculating the exposure risk. (Id. at 8-9).

Okun testified that he also conducts a toxicity assessment, which quantifies the toxic effects of the contaminants at issue. (Id. at 8). According to Okun, he attempts to quantify both non-carcinogenic and carcinogenic risks. (Id.). After conducting an exposure assessment and a toxicity assessment, the results of both are used to derive a risk characterization, which determines whether there...