Schwartzman, Inc. v. Atchison, Topeka & Santa Fe Railway Co.

SUMMARY JUDGMENT

THIS MATTER came on for a hearing on June 28, 1994, on Defendant’s February 15, 1994 motion for summary judgment as to counts I, IV, and VIII, Defendant’s February 15, 1994 motion for partial summary judgment on counts II and III, and Defendant’s February 15,1994 motion for summary judgment on counts VI and VII. Having reviewed the pleadings, the relevant law, and having heard the arguments of counsel, the Court finds Defendant’s motion as to counts I, IV, and VIII is well taken in part and is granted in part. Defendant’s motion as to counts II and III is not well taken and is denied. Defendant’s motion for summary judgment as to count VI is well taken and is granted. Count VII of Plaintiffs complaint, alleging strict liability for abnormally dangerous activity, must be tried to the Court.

Plaintiff owns land in the South Valley area of Bernalillo County. Defendant Atchi-son, Topeka and Santa Fe Railway Co. (“ATSF”) owns a wood treatment and preservation facility adjacent to Plaintiffs property. From 1908 to 1972, Defendant used this facility to treat and preserve wooden railroad ties. On February 15,1993, Plaintiff filed a complaint, subsequently removed to federal court, alleging Defendant improperly stored and disposed chemical waste which contaminated the groundwater and rendered Plaintiffs adjacent property unmarketable.

Plaintiff advances numerous theories of recovery. Plaintiff has withdrawn count I. Count II alleges trespass, count III avers private nuisance, count IV is a public nuisance claim, count V (not at issue here) alleges negligence, count VI alleges negligence per se, count VII advances a strict liability cause of action, and count VIII is a claim for punitive damages.

Summary judgment is appropriate only where no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-59, 90 S.Ct. 1598, 1608-09, 26 L.Ed.2d 142 (1970). The movant bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The Court must view the record in the light most favorable to the existence of triable issues. Exnicious v. United States, 563 F.2d 418, 423-24 (10th Cir.1977).

*841 MOTION FOR SUMMARY JUDGMENT ON COUNTS I, IY, AND VIII 1

Injunctive Relief Claims

In count IV of the complaint, Plaintiff avers a public nuisance cause of action, seeking an order of abatement of Defendant’s alleged nuisance: “Plaintiff prays for an order of this Court instructing Defendant to abate the public nuisance ... by investigating, containing, and remediating the soil and groundwa-ter_” Complaint at ¶73. In addition, count III, a private nuisance claim, requests as relief an order enjoining Defendants from further contaminating the groundwater. Defendant requests that the Court dismiss these claims for injunctive relief pursuant to the doctrine of primary jurisdiction.

The United States Environmental Protection Agency (“EPA”), the New Mexico Department of the Environment, (“NMED”), and Defendant ATSF are currently undertaking efforts to investigate and remediate the tie-treatment site. On October 14, 1992, the EPA proposed listing the ATSF site on the National Priorities List (“NPL”). National Priorities List for Uncontrolled Hazardous Waste Sites, Proposed Rule No. 13, 57 Fed.Reg. 47,204 (1992). The NPL is a listing of the nation’s most contaminated sites. The ATSF site received a “hazardous ranking system” (“HRS”) score of 50. The HRS serves as a screening mechanism and evaluates the relative potential of hazardous substances to threaten health or the environment. Those sites that score 28.5 or greater are eligible for inclusion on the NPL. In a letter from the EPA to ATSF discovered by Plaintiff, the EPA stated, “Generally, when a site receives a hazard ranking system score as high as 50, such as this site did, it is usually placed on the NPL.” If and when the site is placed on the NPL, it becomes eligible for CERCLA-fínanced remedial action in the form of expenditures from the CERCLA Trust Fund, or “Superfund.”

Further, ATSF and the EPA are currently negotiating or have already finalized an administrative order on consent for a “remedial investigation and feasibility study” (“RI/ FS”). The purpose of a RI/FS is to assess site conditions and evaluate remedial alternatives. Although a RI/FS is generally conducted after placement on the NPL, the EPA occasionally elects to conduct a RI/FS on a site proposed for NPL listing for various reasons, “such as when the Agency believes that a delay may create unnecessary risks to public health or environment.” National Priorities List for Uncontrolled Hazardous Waste Sites, supra, at 47,206. In short, then, Defendant is already engaged in an extensive EPA/NMED-supervised investigation and cleanup of the site, a task that appears to be expedited by the EPA.

The common law doctrine of primary jurisdiction provides courts with flexible discretion to refer certain matters to a specialized administrative agency. The doctrine applies to claims which are properly cognizable in federal court, but which contain some issue within the special competence of an administrative agency. “[I]n cases raising issues of fact not within the conventional experience of judges or cases requiring the exercise of administrative discretion, agencies created by Congress for regulating the subject matter should not be passed over.” Far East Conference v. United States, 342 U.S. 570, 574, 72 S.Ct. 492, 494, 96 L.Ed. 576 (1952). New Mexico law also recognizes the doctrine. “[T]he legislature has created the agency in order to afford a systematic method of fact-finding ... and the agency’s jurisdiction should be given priority in the absence of a valid reason for judicial intervention.” State ex rel. Norvell v. Arizona Public Service Co., 85 N.M. 165, 171, 510 P.2d 98 (1973). The doctrine suspends “the judicial process ... pending referral of the issues to the administrative body for its views.” Marshall v. El Paso Natural Gas Co., 874 F.2d 1373, 1376-77 (10th Cir.1989).

No fixed formula constrains the Court’s exercise of its discretion to invoke the doctrine of primary jurisdiction, as the determination is largely fact-specific. Brad *842 ford School Bus Transit v. Chicago Transit Authority, 537 F.2d 943, 949 (7th Cir.1976), cert. denied, 429 U.S. 1066, 97 S.Ct. 797, 50 L.Ed.2d 784 (1977). Various factors, however, guide a judge’s decision to defer to an agency in this context.

First, the Court should consider whether it is being called upon to decide factual issues which are not within the conventional experience of judges, or are instead issues of the sort that a court routinely considers. Id. at 1377. Should the Court entertain Plaintiff’s public nuisance claim, and should Plaintiff prevail on this claim, the Court would have to fashion an appropriate investigatory and remediation order. Such an order would have to specify the proper number and placement of monitoring wells, how deep the wells should be drilled, the adequacy of various proposed sampling methods, and other details of the investigation and cleanup effort. The Court would have to assess whether ATSF has adequately investigated the groundwater contamination, or whether further investigation would be necessary; whether ATSF’s methods of remediation are adequate; what level of contamination is tolerable or acceptable; and a myriad other technical matters. Theoretically, the Court could receive extensive expert testimony, or appoint a special master, but such methods would represent a serious drain of judicial resources and would largely duplicate the present efforts of the EPA and the NMED. Evaluating the proper components of such a plan is best left to the EPA, a body that is far better suited to resolve such issues by reason of “specialization, by insight gained through experience, and by more flexible procedure.” Far East Conference, 342 U.S. at 575, 72 S.Ct. at 494. If Plaintiffs ultimate goal is remediation of the site, this goal would be achieved faster and more efficiently through the joint efforts of the EPA and the NMED without interference from the Court.

Second, the Court should consider whether Defendant could be subjected to conflicting orders of both the Court and the administrative agency. Should this Court independently determine an appropriate investigatory and remediation plan, aspects of the plan may contradict the pending RI/FS, and subject ATSF to conflicting obligations. One purpose of the doctrine of primary jurisdiction is to promote uniformity and harmony in the regulatory sphere the agency is entrusted to govern. Nader v. Allegheny Airlines, 426 U.S. 290, 303-04, 96 S.Ct. 1978, 1986-87, 48 L.Ed.2d 643 (1976); Marshall v. El Paso Natural Gas Co., 874 F.2d 1373, 1377 (10th Cir.1989). This purpose would be served in this case by deferring the remedial plan to the EPA and the NMED.

A third factor courts have considered in this context is whether relevant agency proceedings have actually been initiated. In Roberts v. Chemlawn Corp., 716 F.Supp. 364 (N.D.Ill.1989), the court was asked to defer to the EPA the determination of whether certain pesticides were harmful. While the court admitted that deferring technical aspects of the case to the EPA was “far preferable,” the court nevertheless declined to invoke the doctrine of primary jurisdiction. Id. at 365. The court retained jurisdiction because of a significant delay attributable to EPA review of pesticides. That the review process would even begin within the following two to three years was speculative at best. Id. at 365-66. The court was careful to note that had the agency process begun, its decision would have been different. “ ‘It is axiomatic that the advisability of invoking primary jurisdiction is greatest where the issue is already before the agency.’” Id., quoting Mississippi Power & Light Co. v. United Gas Pipe Line Co., 532 F.2d 412, 420 (5th Cir.1976), cert. denied, 429 U.S. 1094, 97 S.Ct. 1109, 51 L.Ed.2d 541 (1977). In this case, the EPA has already begun the process of initiating a remedial investigation and feasibility study pursuant to the ATSF site’s likely inclusion on the National Priorities List.

Fourth, courts consider whether the agency has demonstrated diligence in resolving the issue or has instead allowed the issue to languish. Administrative delay constitutes reason to retain jurisdiction. Roberts, 716 F.Supp. at 366; In re "Agent Orange” Product Liability Litigation, 475 F.Supp. 928, 933 (E.D.N.Y.1979). Here, Plaintiff points to Defendant’s failure to investigate the site to the satisfaction of the EPA or the NMED and *843 the length of time consumed thus far. However, the fact that the EPA has shown intolerance towards the apparent contumaciousness of Defendant proves that the EPA is in fact diligently pursuing ultimate cleanup of the site. Plaintiff fails to indicate how the EPA has been dilatory or has proven inadequate to the task of prodding ATSF to accept responsibility for remediation; moreover, Plaintiff fails to show how this Court would be more effective at ensuring compliance than the EPA. The EPA has promptly discovered shortcomings in ATSF’s investigatory methods and has led ATSF to shore up gaps in the collected data. Contrary to Plaintiffs bald assertions, deferral to the EPA would not relegate Plaintiff to an “administrative limbo.” In re Agent Orange, 475 F.Supp. at 933. That the EPA has already initiated a RI/FS before placement of the site on the National Priorities List demonstrates EPA’s diligence. In fact, Plaintiffs could expect more delay should this Court assume the role of scientific tribunal. In any event, and as was the case in State ex. rel. Norvell v. Arizona Public Service Co., 85 N.M. 165, 172, 510 P.2d 98 (1973), Plaintiffs complaint “contemplates the passage of considerable time even if plaintiffs get what they seek.” Id.

And finally, the type of relief requested by Plaintiff should be considered. Courts refuse to defer jurisdiction if the plaintiff is seeking damages for injury to property or person, as this is the type of relief courts routinely consider; however, if injunctive relief is called for, requiring scientific or technical expertise, the doctrine is more readily applicable. See Ryan v. Chemlawn Corp., 935 F.2d 129, 131 (7th Cir.1991) (because Plaintiff dropped claim for injunctive relief, lower court improperly invoked doctrine); O’Hare v. Valley Utilities, Inc., 89 N.M. 105, 111, 547 P.2d 1147 (Ct.App.) (injunctive relief is “identical to the relief which the agency could have granted” and therefore primary jurisdiction lies with the agency), rev’d in part on other grounds, 89 N.M. 262, 550 P.2d 274 (1976). Should this court stay the proceedings with respect to count IV and the injunctive relief requested in count III, Plaintiff may yet pursue monetary damages under the theories of negligence, trespass, private nuisance, and strict liability, which would include any costs necessary for cleanup. Additionally, if the EPA’s plan for investigation and cleanup is successful, the Plaintiff will have achieved its goals. If not, judicial review under CERCLA, at 42 U.S.C. § 9613 (1988), is available. See Pueblo de Cochiti v. United States, 647 F.Supp. 538, 543 (D.N.M.1986) (Invoking the doctrine; “If the [agency] resolves the substantive claim in Plaintiffs favor, further litigation will be unnecessary. If Plaintiffs are unsuccessful in the agency hearing, judicial review by the federal court is still available.”).

Plaintiffs arguments to the contrary are unpersuasive. Plaintiff asserts CERCLA-in-spired remediation efforts by the EPA are not designed to subvert assertion of alternative remedies, citing 42 U.S.C. § 9659(h) (CERCLA “does not affect or otherwise impair the rights of persons under Federal, state or common law_”). Plaintiff misses the point of primary jurisdiction. The doctrine applies when the agency and the court entertaining Plaintiffs claims have concurrent jurisdiction, but the court, for the reasons stated above, believes it prudent to decline to exercise its jurisdiction in favor of the expertise of the agency.

[T]he original case creating the doctrine (Texas & P.R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426 [27 S.Ct. 350, 51 L.Ed. 553] (1907)) overrode explicit and unequivocal statutory provisions allowing the courts to act initially. The principal criterion in deciding whether the doctrine is applicable is not legislative intent but usually is judicial appraisal of need or lack of need for resort to administrative judgment.

Norvell, 85 N.M. at 171, 510 P.2d 98 (quotations and citations omitted). Plaintiff also complains about the lateness of Defendant’s primary jurisdiction argument. However, the primary jurisdiction doctrine can be invoked “sua sponte by the court, and thus its invocation cannot be waived ... [T]he doctrine exists for the proper distribution of power between judicial and administrative bodies, and not for the convenience of the *844 parties.” 2 Fed.Proc.L.Ed. § 2:320 (1994) (citations omitted).

In summary, “[i]t would be improper for this Court to exercise its equitable jurisdiction to interfere with the comprehensive programs designed to solve a complex social, economic and technological problem. Quite simply, we choose not to pollute the scene with still more studies and standards.” Norvell, 85 N.M. at 172, 510 P.2d 98. Defendant is requesting the Court to dismiss Plaintiffs injunctive relief claims pursuant to the doctrine of primary jurisdiction. However, the preferred approach is that “jurisdiction should be retained by a stay of proceedings, not relinquished by a dismissal,” even if without prejudice. Northern Cal. Dist. Council of Hod Carriers, AFL-CIO v. Opinski, 673 F.2d 1074, 1076 (9th Cir.1982). Accordingly, the Court will stay Plaintiffs claims for in-junctive relief in counts III and IV. In light of the resolution of this issue, the Court need not address Defendant’s other contentions regarding count IV.

Punitive Damages Claim

ATSF argues that Plaintiffs punitive damages claim, averred in count VIII, is “simply a prayer for relief without an underlying cause of action.” Defendant’s Memo, in Support at 24. Count VIII incorporates all of the allegations of the complaint by reference, and punitive damages are recoverable under Plaintiffs causes of action. Defendant’s argument is meritless.

MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO COUNTS II AND III

Count II of Plaintiffs complaint alleges trespass. Trespass is defined as a direct infringement of another’s right of possession. Pacheco v. Martinez, 97 N.M. 37, 41, 636 P.2d 308 (Ct.App.1981). See also Restatement (Second) of Torts § 158 (“One is subject to liability to another for trespass, irrespective of whether he thereby causes harm ..., if he intentionally (a) enters land [of another or] causes a thing or third person to do so_”). A trespass may be committed on or beneath the surface of the earth. Restatement (Second) of Torts § 159 (1977). Count III avers maintenance of a private nuisance. A private nuisance is defined as “a nontrespassory invasion of another’s interest in the private use and enjoyment of land.” Restatement (Second) of Torts § 821D (1977). Defendant asserts that these claims should be dismissed because no genuine issue of material fact exists to support Plaintiffs contention that contamination has migrated on Plaintiffs property.

The theoretical differences between trespass and nuisance are important in this case. A claim of trespass contemplates actual physical entry or invasion, whereas nuisance liability arises merely by virtue of activity which falls short of tangible, concrete invasion, so as not to interfere with possession, but nevertheless interferes with the use and enjoyment of the land. Id. at cmt. d (distinguishing trespass and nuisance; “[a] trespass is an invasion of the interest in the exclusive possession of land, as by entry upon it. A nuisance is an interference with the ... private use and enjoyment of the land, and does not require interference with possession.”). In Padilla v. Lawrence, 101 N.M. 556, 685 P.2d 964 (Ct.App.1984), the New Mexico Court of Appeals explained this “traditionally accepted distinction between nuisance and trespass.” Id. at 562, 685 P.2d 964. The Court wrote:

A trespass is a direct infringement of another’s right of possession. Where there is no physical invasion of property, as with intangible intrusions such as noise and odor, the cause of action is for nuisance rather than for trespass.... The entrance onto property of blowing particulate matter also is not actionable as trespass in the absence of a finding that the matter settled upon and damaged plaintiffs’ property.

Id. at 563, 685 P.2d 964 (citations omitted) (emphasis added). The italicized language demonstrates that for the groundwater contamination to be actionable under trespass, the contamination must have reached Plaintiffs property and damaged it.

Plaintiffs allege that all of its tracts have been trespassed upon by Defendant’s alleged horizontal migration of contaminants in the groundwater, and that this contamina *845 tion also constitutes a nuisance. This alleged contamination includes tracts 14 north, 14 south, 10 north, 10 south, 9 north, 9 south, and tract 15 of Plaintiffs property. As to tract 14 north, ATSF conducted limited soil and groundwater testing and found some evidence of creosote contamination. Aside from tract 14 north, however, the only evidence of physical contamination of the other tracts is based on the opinions of Plaintiffs experts. Plaintiff has not done any soil or groundwater testing of the other tracts, and incredibly, does not intend to conduct such testing:

[Plaintiff] acknowledges that it has not taken physical samples of soil and groundwater on Tracts 9 [north and south], 10 [north and south], 14 South or 15. [Plaintiff) disputes that such samples are required to prove its claims against ATSF. It is ATSF’s duty to investigate, define, and abate its contamination of [Plaintiffs] property.

Plaintiffs Memo, in Response at 5. Apparently, Plaintiff labors under the quite mistaken notion that it is Defendant who bears the burden of proof in this case. To survive summary judgment, Plaintiff must identify specific facts, Fed.R.Civ.P. 56(e), which show physical invasion of contaminants. See also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986) (party in opposition to summary judgment must show “sufficient support” for essential elements of its case).

Due to Plaintiffs dearth of evidence demonstrating contamination of the groundwater directly underneath Plaintiffs property, Defendant contends Plaintiffs trespass and nuisance claims must fail. However, actual physical invasion of the contamination is a requisite element only of Plaintiff’s trespass claim. As discussed, nuisance does not require physical invasion of possession, but only interference with use and enjoyment. Defendant does not dispute that tract 14 north’s groundwater is contaminated. If any part of the aquifer underlying Plaintiff’s property is contaminated, then use and enjoyment of all of Plaintiff’s tracts is possibly impaired — even if none of the contamination in the aquifer has actually reached the groundwater directly underneath Plaintiffs other tracts.

Miller v. Cudahy Co., 567 F.Supp. 892 (D.Kan.1983), aff'd in part and rev’d in part on other grounds, 858 F.2d 1449 (10th Cir.1988), is instructive on this point. Miller involved a salt mining operation’s pollution of an underground aquifer. The defendant moved for summary judgment as to those plaintiffs whose property only partially covered the aquifer, and who could not demonstrate actual physical contamination of groundwater directly underneath their property. The court denied defendant’s motion as to these plaintiffs, noting that defendant’s argument was “specious as applied to those properties that overlie the aquifer even slightly. Any access to the aquifer would allow a well to be drilled, bringing the benefits of domestic and irrigation water to the whole tract....” Id. at 897 (emphasis in original). According to the uncontradicted affidavit testimony of Plaintiffs expert, Robert W. Newcomer, were Plaintiff to drill any wells tapping the aquifer, the contaminant plume would be drawn to the new displacement of water and could thereby contaminate Plaintiff’s water source directly. This inability to tap the underground aquifer is an interference of use and enjoyment of the land sufficient to support nuisance liability, regardless of whether the contaminant plume has actually invaded other tracts of Plaintiff’s property. 2

Hence, the apparent lack of evidence demonstrating actual invasion of contaminants is relevant only to Plaintiff’s trespass claim. It appears, however, that Plaintiffs expert testimony provides the evidentiary support necessary to withstand summary judgment as to the trespass cause of action. In lieu of test *846 ing or sampling results, Plaintiff relies on the opinions of three experts in the applicable field, testifying by affidavit. One such expert, Philip B. Bedient, opined, “It is highly likely that the contamination from ATSF’s Albuquerque site has travelled a significant distance, given the extremely long period of time the treatment facility operated ... and the relatively high velocities of groundwater in the area.” Bedient believes that the contaminant plume is “moving east to northeast,” based on a missing layer of clay which acts as a “very permeable conduit for the migration of groundwater contamination.” Finally, Bedient stated that, based on his experience at other sites, it is also “highly likely” that contamination has reached tract 10 and it is “more likely than not” that it has reached tracts 8 and 9.

Gary D. McGinnis, Plaintiffs other expert, testified, “It is also likely that significant horizontal migration of the oil phase contamination has occurred.” McGinnis asserted that the water table underneath the ATSF site has “historically been within inches of the ground surface,” and thus the creosote and other materials did not have far to drift before contaminating the groundwater. McGinnis pointed to soil samples taken pursuant to the Radian investigation and noted that the severity of the contamination increases with depth. Bedient testified that the deeper the groundwater, the faster it moves. Thus, horizontal migration appears likely. Based on McGinnis’ experience at other similar tie-treatment sites with similar chemicals, horizontal migration can reach as much as a mile or more from the source areas. McGinnis believes the contaminant plume is moving to the south and east, as well as to the north and northeast. McGin-nis also claims that “demonstrated migration of contamination to the west” exists.

Robert W. Newcomer, a geology and hy-drogeology expert, emphasized that ATSF’s investigation has revealed contamination of the groundwater directly underneath the site that has reached both of the top two aquifers (the shallow and intermediate aquifers). Groundwater flow from the early 1900s has been north to south (parallel to the Rio Grande River), but has in modern times shifted to an easVsoutheast direction, due to the effect of municipal pumping systems. “Thus, over the 64 years the ATSF wood treating facility operated, depth to groundwater and groundwater flow direction and rate have changed significantly, influencing both the rate and direction of movement of ATSF’s hazardous contamination plume.” Newcomer opined that drilling groundwater wells in the vicinity would influence and perhaps exacerbate contaminant flow. “Utilizing a water supply well within or near the contaminant plume could adversely affect and further complicate plume migration or contaminant transport ... by inducing and accelerating the migration of the contamination plume towards [new wells].”

Plaintiffs experts’ testimony, however, does reveal a major deficiency of Plaintiffs case. Bedient noted that the extent of this supposed horizontal migration is impossible to determine “due to ATSF’s limited and inadequate investigation.” And McGinnis stated, “Additional sampling needs to be conducted both on and off the ATSF site to determine the extent of horizontal migration....” Newcomer also disparaged ATSF’s investigation and lamented the uncertainty. All of these experts, therefore, have admitted that more exploration of the area needs to be conducted in order to determine more precisely the extent of horizontal migration. As Plaintiff bears the burden of proof in this ease, Plaintiff is the party responsible for conducting this exploration; yet, Plaintiff apparently does not intend to do so.

Nevertheless, summary judgment should not be granted, despite this deficiency. The experts’ affidavits raise issues of credibility, and the rule is well-settled that the Court should not make credibility determinations on a motion for summary judgment. Poller v. Columbia Broadcasting Sys., 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962); Romero v. Union Pac. R.R., 615 F.2d 1303, 1309 (10th Cir.1980). The only instance in which a court may grant summary judgment despite contrary affidavit testimony is when it is “too incredible to be accepted by reasonable minds.” Whitaker v. Coleman, 115 F.2d 305, 306 (5th Cir.1940). *847 The experts’ opinions do not fall into this category. A reasonable jury could find the experts’ testimony credible, based in part on their prior experience with similarly situated hazardous waste sites. Plaintiff has shown genuine issues of material fact by virtue of the experts’ testimony, coupled with the undisputed facts that (1) the contamination is not limited to the ATSF site; (2) the groundwater underneath tract 14 north is contaminated; (3) the site had been actively discharging waste for nearly 65 years; and (4) the groundwater moves relatively quickly in this area and has changed direction over the years. Defendant failed to contradict or impeach the experts’ testimony and did not attack their qualifications or their analysis. Consequently, Defendant’s motion for summary judgment as to counts II and III is denied.

MOTION FOR SUMMARY JUDGMENT AS TO COUNTS VI AND VII 3

Plaintiff alleges in count VI that Defendant’s conduct violated applicable state environmental statutes, and that these violations constituted negligence per se. The doctrine of negligence per se dictates that applicable statutes constitute the governing standard of care, and violation of those statutes is negligence as a matter of law. Restatement (Second) of Torts § 286 (1977). Negligence as a matter of law exists when: (1) an applicable statute prescribes certain actions or defines a standard of conduct, either explicitly or implicitly; (2) the plaintiff is in the class of persons sought to be protected by the statute; (3) the plaintiffs alleged harm or injury is generally of the type the legislature sought to prevent by enactment of the statute; and (4) the defendant violated the statute (an issue for the jury). Arehibeque v. Homrich, 88 N.M. 527, 532, 543 P.2d 820 (1975); Restatement (Second) of Torts § 286 (1977). Another factor used by the courts is whether the legislature intended to permit such private rights of action based on the statute in question. See, e.g., Valdez v. Cillessen & Son, Inc., 105 N.M. 575, 734 P.2d 1258 (1987), discussed infra.

Plaintiff relies on three statutes in support of its negligence per se claim: the New Mexico Hazardous Waste Act, N.M.Stat.Ann. §§ 74-4-1 to -14 (Michie 1978), the New Mexico Water Quality Act, N.M.Stat.Ann. §§ 74-6-1 to -17, and the public nuisance statute at N.M.Stat.Ann. § 30-8-1 to -14. 4 Defendant objects to count VI on two grounds: one, the statutes Plaintiff relies on cover only active facilities, not closed sites no longer in operation; and two, any relevant permitting statutes have not been violated because neither the EPA nor the NMED has required ATSF to obtain a permit.

The latter contention is meritless. Since 1986, the ATSF site has been under extensive EPA and NMED scrutiny because the site is to be remediated. The focus of the efforts thus far has been removal of the waste. ATSF has no intention of continuing to use the site to store the existing waste. Instead, ATSF, with agency oversight, is attempting a cleanup. Logically, therefore, the agencies in question would not press ATSF to obtain a hazardous waste permit to store hazardous waste that is now in the process of being removed. Admittedly, no agency required ATSF to obtain a permit prior to 1986, but the fact that the Acts were not enforced does not necessarily prove that ATSF did not violate the Acts.

Defendant’s first objection is also flawed. Defendant claims that the Hazardous Waste Act and the Water Quality Act, both requiring permits, apply only to sites currently or prospectively active. After 1972, the site ceased operations, and thus, *848 Defendant argues, no permits would have been required at that time. Defendant, however, points to no statutory provision to that effect, and employs a crabbed definition of the term “active.” The Hazardous Waste Act requires permits for sites in which hazardous waste is to be “stored or disposed.” To “knowingly treat, store, or dispose of any hazardous waste ... without having obtained a hazardous waste permit_” N.M.Stat. Ann. § 74-4-ll(A)(2)(a), results in criminal sanctions. See id. at §§ 74-4-ll(B), 74-4-11(D). “Disposal” is defined as “the discharge, deposit, injection, dumping, spilling, leaking or placing of any solid waste or hazardous waste into or on any land or water so that such [waste] may enter the environment or be ... discharged into any waters, including ground waters_” N.M.S.A. § 74-A-8(C) (emphasis added). ATSF’s placement of creosote into a wastewater pit clearly falls into the “disposal” category. Therefore, ATSF would have been required to obtain a permit, even after 1972 (and again, the fact that no agency actually mandated compliance with the permitting requirement does not necessarily indicate that Defendant did not violate the