The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
Plaintiffs in these consolidated cases assert various claims against Chevron U.S.A. Inc. ("Chevron") based upon the presence of petroleum hydrocarbons in the soil and groundwater below certain properties in an area of Washington, D.C. known as Riggs Park. They contend that the contamination resulted from the discharge or release of gasoline from a retail service station formerly owned and operated by Chevron and seek damages for diminution in the value of their properties and for emotional distress. They also seek injunctive relief under the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. ("RCRA").
Chevron has moved for partial summary judgment with respect to the following claims:
(1) emotional distress damages; (2) common law strict liability; (3) statutory claims under the RCRA; and (4) claims by individuals whose properties are not situated over subsurface contamination. For the reasons set forth below, the Court will grant summary judgment as to the claims for strict liability and for violation of the RCRA, but will deny Chevron's motion in all other respects.
Plaintiffs include approximately 500 current and former residents of, or property owners within, the Riggs Park neighborhood of Washington, D.C. (See Nnadili Fifth Amended Complaint ("Nnadili Compl.") ¶¶ 9-129; Abney Third Amended Complaint ("Abney Compl.") ¶¶ 7-169.) According to plaintiffs, from approximately 1956 through June 21, 1993, Chevron, or its predecessor-in-interest, owned and operated a retail gasoline service station at 5801 Riggs Road in Chillum, Maryland, which is on the Maryland side of the border between Maryland and Washington, D.C. (Nnadili Compl. ¶¶ 130, 131; Abney Compl. ¶¶ 171, 172.)*fn1 They allege that during the time that Chevron owned and operated the service station, gasoline was discharged or released into the ground from the station's underground storage tanks ("USTs"). (See, e.g., Nnadili Compl. ¶¶ 133, 134, 139, 140, 144, 146, 149, 150; Abney Compl. ¶¶ 2, 3, 176-78.) Plaintiffs further allege that the gasoline subsequently migrated into the Riggs Park neighborhood, contaminating the air, soil, and groundwater of the properties currently or formerly owned or occupied by plaintiffs. (See, e.g., Nnadili Compl. ¶¶ 136, 144; Abney Compl. ¶¶ 3, 178, 186, 187, 189.)
In their initial complaints, plaintiffs asserted claims for wrongful death, personal injury, and medical monitoring, in addition to the instant claims for property and emotional distress damages.*fn2 On October 4, 2004, however, after air sampling conducted by Chevron indicated that the air quality in selected Riggs Park homes did not exceed Environmental Protection Agency ("EPA") thresholds, plaintiffs voluntarily dismissed all claims predicated on evidence of actual exposure to gasoline constituents. (See Oct. 4, 2004 Stipulated Order ("Stip. Order").) Specifically, plaintiffs stipulated as follows:
All plaintiffs agree that they do not now allege and will not allege or attempt to prove in these actions that any plaintiff was exposed to petroleum hydrocarbons or other contaminants of a nature, intensity and duration that can be linked through valid scientific evidence to personal injury or to a risk of injury or death. Nor will plaintiffs attempt to argue or prove that any emotional distress alleged to have been suffered by any plaintiff is the result of any actual exposure to petroleum hydrocarbons or other contaminants. In addition, plaintiffs will not attempt to argue or prove that a valid scientific basis exists for any potential for exposure.
(Id. ¶ 1.) In connection with this stipulation, plaintiffs also sought -- and were granted -- leave to file their current amended complaints, which do not include claims for personal injury, wrongful death, or medical monitoring. (Id. ¶ 2.) As a result, plaintiffs are seeking -- based on claims of trespass, nuisance, negligence, and common law strict liability -- damages only for diminution in the value of their properties and for emotional distress, as well as injunctive relief under the RCRA.
On December 5, 2005, prior to the close of discovery, the Court entered a Revised Stipulated Scheduling Order pursuant to which Chevron filed the motion for partial summary judgment that is presently before the Court. As agreed to and proposed by the parties, fact and expert discovery has been stayed pending disposition of the instant motion. (Dec. 5, 2005 Revised Stipulated Scheduling Order ¶ 4.) The Revised Stipulated Scheduling Order further provides that additional dispositive motions, as appropriate, shall be permitted following the completion of discovery. (Id. ¶ 5.)
I. Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure provides that a motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To be material, the fact must be capable of affecting the outcome of the litigation, and to be genuine, the issue must be supported by admissible evidence sufficient for a reasonable trier of fact to find in favor of the non-moving party. Id. at 247-48; see also Laningham v. U.S. Navy, 813 F.2d 1236, 1242-43 (D.C. Cir. 1987).
To avoid summary judgment the non-moving party's opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The non-moving party must provide evidence that would permit a reasonable jury to find in the non-moving party's favor. Laningham, 813 F.2d at 1241. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50 (citations omitted). Nevertheless, "because summary judgment is a drastic measure, courts should grant it with caution so that no person will be deprived of his or her day in court to prove a disputed material factual issue." Greenberg v. Food & Drug Admin., 803 F.2d 1213, 1216 (D.C. Cir. 1986). For this reason, in considering a motion for summary ...