935 F.2d 1343 (2nd Cir. 1991), 415, Dague v. City of Burlington

Docket Nº:415, Docket 90-7544.
Citation:935 F.2d 1343
Party Name:Ernest DAGUE, Sr., Ernest Dague, Jr., Betty Dague, and Rose A. Bessette, Plaintiffs-Appellees, v. CITY OF BURLINGTON, Defendant-Appellant.
Case Date:June 12, 1991
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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935 F.2d 1343 (2nd Cir. 1991)

Ernest DAGUE, Sr., Ernest Dague, Jr., Betty Dague, and Rose

A. Bessette, Plaintiffs-Appellees,


CITY OF BURLINGTON, Defendant-Appellant.

No. 415, Docket 90-7544.

United States Court of Appeals, Second Circuit

June 12, 1991

Argued Oct. 29, 1990.

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William W. Pearson, Burlington, Vt. (Downs Rachlin & Martin, Richard N. Bland, of counsel), for plaintiffs-appellees.

Michael B. Clapp, Burlington, Vt. (Dinse, Erdmann & Clapp, Robert R. McKearin, of counsel), for defendant-appellant.

Before NEWMAN and PRATT, Circuit Judges, GRIESA, District Judge for the Southern District of New York, sitting by designation.

GEORGE C. PRATT, Circuit Judge:

Plaintiffs are owners of land adjacent to the Burlington Municipal Disposal Grounds (the "landfill"). They brought this action against the City of Burlington for alleged violations of state and federal laws arising out of the operation of the landfill. Plaintiffs alleged that the operation of the landfill generally harmed the environment, and specifically damaged their properties, by generating methane gas, wind-blown debris, and hazardous waste. The city closed the landfill on December 31, 1989.

The plaintiffs' ten-count complaint sought injunctive relief, civil penalties, compensatory damages, and punitive damages, plus costs and attorneys' fees. Judge Billings held a bench trial on the first five counts of the complaint. Counts I, II, and III were brought pursuant to the citizen-suit provision of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. Sec. 6972; count IV was brought pursuant to the citizen-suit provision of the Clean Water Act ("CWA"), 33 U.S.C. Sec. 1365; and count V was brought pursuant to the Vermont Groundwater Protection Law, 10 Vt.Stat.Ann. Sec. 1410.

The district court found that the City of Burlington had operated the landfill in violation of prohibitions against open dumping practices found in 42 U.S.C. Sec. 6945(a); that the landfill may have presented an imminent and substantial endangerment to

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health or the environment in violation of 42 U.S.C. Sec. 6972(a)(1)(B); and that the landfill had discharged pollutants from a point source into waters of the United States in violation of 33 U.S.C. Sec. 1311. Liability under the remaining common law claims, counts VI through X, and the issue of damages on count V, were reserved for trial by jury at a later date.

The district court denied a motion by the city to dismiss counts II, III, and part of IV of the complaint, made on the ground that plaintiffs had failed to comply with the notice and delay requirements for citizen-suits under 42 U.S.C. Sec. 6972(a) and 33 U.S.C. Sec. 1365(a).

In addition, the court found that the plaintiffs had substantially prevailed and awarded them total attorney's fees, pursuant to 42 U.S.C. Sec. 6972(e) and 33 U.S.C. Sec. 1365(d), in the amount of $247,534.37, which included a "lodestar" amount of $198,027.50 plus a 25 percent risk/contingency enhancement of $49,506.87. The court also awarded plaintiffs $10,929.66 in expenses, including expert fees.

The city appeals all of these rulings.


The City of Burlington has owned and operated the landfill since the early 1960s. The landfill is rectangular in shape and is located on approximately eleven acres of land to the north of the commercial-residential center of the city. It is bounded to the east and south by properties owned by the plaintiffs, to the north by a railroad embankment, and to the west and northwest by a marsh area called the Intervale, which has been designated a wetland, as well as by Beaver Pond, which is actually the southeast portion of the marsh. A large stone culvert runs under the railroad and connects the Beaver Pond portion of the marsh with the northeast quadrant of the Intervale.

The Intervale is in the flood plain of the Winooski River. It is inundated or saturated by surface water sufficient to support a variety of vegetation typically adapted for life in saturated soil conditions. The Intervale occasionally floods, leaving the entire area covered with surface water, including parts of the landfill itself. At normal times, water in the culvert is either in equilibrium or flows from south to north through the culvert. During times of high water, however, surface water may flow from north to south through the culvert.

Trash is buried in the landfill to a depth of approximately nine feet below the ground water table on the northern edge of the landfill. Historically, rain water and run-off from the land have been able to percolate into the landfill mass. As a result, groundwater mixes with and flows through contaminants in the landfill.

The landfill contains typical domestic and municipal wastes as well as materials deposited over the years by local industries. When groundwater infiltrates the landfill, the water mixes with the material in the landfill and forms leachate. Leachate is a liquid that has passed through or emerged from solid waste and contains soluble, suspended, or miscible materials removed from such wastes. The leachate is generated both by percolation of precipitation into the landfill mass and by the flow of groundwater through the refuse in the landfill. The leachate produced in the landfill contains chemicals and compounds found on toxic and hazardous lists under RCRA and the CWA. Because the landfill is unlined, the leachate enters the upper gradients or "flow tubes" of ground water under the landfill. The ground water then flows north beyond the landfill boundaries, and the flow tubes of the leachate-contaminated groundwater all surface in the Intervale, north of and within 300 feet of the railroad embankment.

Leachate has also emerged from the sides of the landfill via seeps. From there, it flows into Beaver Pond and thence through the culvert under the railroad embankment and into the Intervale. The fact that leachate from the landfill is toxic to a small fish called the fathead minnow demonstrates that the leachate can kill a vertebrate in the food chain. The leachate also kills Daphnia (water fleas) and algae.

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In the early 1980s, the State of Vermont began to closely scrutinize the landfill. As a result of the state's investigation, the state and the city entered into an Assurance of Discontinuance on December 15, 1981, which nominally required the city by July 1, 1984, to cease disposing of any refuse in the landfill, with the exception of residue from a planned resource recovery facility. When the city did not comply, the terms of the Assurance were amended several times, the most pertinent amendment ("Amended Assurance") occurring on January 31, 1985. It required that the city install and make operational a leachate collection system at the landfill by September 1, 1985, and that the city install and make operational a methane gas control system by December 1, 1985. It also gave the city two options: (1) select another landfill site and close the current landfill by January 1, 1988, or (2) begin operating a resource recovery facility ("RRF") and close the landfill by January 1, 1990. This Amended Assurance was entered as an order of the Chittenden Superior Court on March 7, 1985.

The city did not timely comply, however, even with the terms of the Amended Assurance. It did not install the leachate collection system or the methane gas control system until March of 1986, after the State of Vermont, on December 18, 1985, had brought an action against the city to enforce the March 7th order. Moreover, the city never notified the state in writing of its choice between the two closure options, despite its obligation to do so. While the city's board of aldermen did adopt a resolution to pursue the RRF option, the mayor vetoed the resolution.

During the years 1985 and 1986, the state performed its own environmental assessment of the landfill, conducting substantial monitoring and testing of the area in and around the landfill, and collecting both leachate data and biological data. While the state concluded, as a result of its investigation, that the landfill did not, at that time, present an imminent and substantial endangerment to human health or the environment, it did determine that January 1, 1990, was the appropriate closure date in view of the environmental concerns presented by the landfill.

Plaintiffs filed their complaint in this matter on October 9, 1985. The day before, plaintiffs had mailed letters to the defendant city, the State of Vermont, and the Administrator of the Environmental Protection Agency (the "EPA"), notifying them of plaintiffs' contention that the city was operating the landfill in violation of sections 6925, 6930, and 6945 of RCRA, and sections 1311, 1317, and 1342 of the CWA. Plaintiffs moved for a preliminary injunction seeking immediate closing of the landfill. The case was initially referred to the Honorable Jerome J. Niedermeier, United States Magistrate for the District of Vermont, to hear and determine the motion. The city moved to dismiss the complaint primarily on the basis of failure to comply with the notice prerequisites of 42 U.S.C. Sec. 6972(a) and 33 U.S.C. Sec. 1365(a). The court suggested that the plaintiffs then file a proper notice under RCRA and CWA and reserved decision on the motion to dismiss. Heeding the court's suggestion, the plaintiffs filed a "supplemental" notice.

In February of 1986, the magistrate issued a Report and Recommendation, finding for purposes of the preliminary injunction motion, that the city was in violation of Sec. 6945(a) of RCRA and Sec. 1311(a) of the CWA. However, the magistrate recommended that the court deny plaintiffs' motion at that time and order the city to take certain specific steps toward remedying the violations. Adopting the magistrate's Report and...

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