Dague v. City of Burlington

• Decision Date: 16 October 1989
• Docket Number: Civ. No. 85-269.
• Citation: 732 F. Supp. 458
• Parties: Ernest DAGUE, Sr., Ernest Dague, Jr., and Betty Dague v. CITY OF BURLINGTON.
• Court: U.S. District Court — District of Vermont

732 F. Supp. 458

Ernest DAGUE, Sr., Ernest Dague, Jr., and Betty Dague v. CITY OF BURLINGTON.

Civ. No. 85-269.

United States District Court, D. Vermont.

October 16, 1989.

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William W. Pearson, Downs, Rachlin & Martin, Burlington, Vt., for plaintiff.

Michael B. Clapp, Dinse, Erdmann & Clapp, Burlington, Vt., for defendant.

FINDINGS OF FACT, OPINION AND ORDER

BILLINGS, Chief Judge.

Plaintiffs bring this action against the City of Burlington ("City") for alleged violations of state and federal law arising out of the operation of the Burlington Municipal Disposal Grounds ("Landfill"). Plaintiffs allege that the operation of the Landfill has generally harmed the environment, and has specifically damaged their adjoining properties, by the generation of methane gas, wind-blown debris and hazardous waste. The ten-count complaint seeks injunctive relief, imposition of civil penalties, compensatory and punitive damages, costs and attorney's fees.

Trial by court was held during the period of May 8-11, 1989 on defendant's statutory liability, and plaintiffs' relief, if any, under Counts I through V of the complaint. These counts are brought pursuant to the citizen suit provision of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6972 (Counts I-III); the citizen suit provision of the Clean Water Act ("CWA"), 33 U.S.C. § 1365 (Count IV); and the Vermont Groundwater Protection Law, 10 Vt.Stat.Ann. § 1410 (Count V). Liability under the remaining common law claims, Counts VI through X, and the issue of damages, will be tried by jury at a later date.

For purposes of this Opinion, we presume familiarity with prior Opinions, Orders, and Reports and Recommendations in this case.

PROCEDURAL BACKGROUND

Plaintiffs filed their complaint in this matter on October 9, 1985. The case was initially referred to the Hon. Jerome J. Niedermeier, United States Magistrate for the District of Vermont, to hear and determine plaintiffs' motion for a preliminary injunction. Plaintiffs were seeking immediate closure of the Landfill. The Magistrate heard oral arguments on the motion for a preliminary injunction on October 28, 1985, at which time the City also moved to dismiss the complaint. Several more hearings were held between November 1985 and January 1986 on plaintiffs' motion for a preliminary injunction and the City's motion to dismiss.

In February of 1986, the Magistrate issued a Report and Recommendation finding, for the purpose of the motion for a preliminary injunction, that the City was in violation of RCRA, 42 U.S.C. § 6945(a), and the CWA, 33 U.S.C. § 1311(a). 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. This Court adopted the Magistrate's Report and Recommendation in toto. Accordingly, we denied plaintiff's motion for a preliminary injunction and ordered the City, within sixty days, to make fully operational both a gas ventilation system and a leachate collection system for the Landfill. The City complied with the Court's Opinion and Order, dated March 26, 1986.

Early in this case, the City also filed third-party complaints against several other parties. The City subsequently attempted to join these third-party defendants as co-defendants. Meanwhile, the third-party defendants sought to dismiss the third-party complaints or, alternatively, to sever the third-party action from the primary case. On February 7, 1987 and September 3, 1987, respectively, the Court denied the City's motion to join defendants and granted the third-party defendants' motion to dismiss. The City sought, but was denied, certification from the Court to allow appeal of this decision as a final partial judgment.

On May 19, 1988, the Court granted the City's motion to separate the statutory claims for trial by court, from the common law claims and damages for trial by jury. Thereafter, cross motions for summary judgment and partial summary judgment, as well as motions on evidentiary matters, were heard and decided by the Court. By the spring of 1989, discovery was completed and the court claims were scheduled for trial.

At the close of the trial, on May 11, 1989, the Court allowed the parties until June 16, 1989 to file proposed findings of fact and conclusions of law. Plaintiffs filed memoranda in this regard on June 16, 1989; defendant filed its memoranda on June 19, 1989.

FINDINGS OF FACT

Prior to the commencement of trial, plaintiffs filed a stipulation of facts, document # 204, a copy of which is attached as Appendix A. At trial, the parties agreed to incorporate the stipulations into the record, with a modification of Stipulation # 13. Accordingly, the Court incorporates herein the facts stipulated by the parties (hereinafter "Stipulations"), except that Stipulation # 13 now reads:

13. The Landfill is a highly saturated area.

In consideration of the evidence presented at trial, the exhibits and the parties' proposed findings, the Court adds the following facts:

The State of Vermont has authorization from the United States Environmental Protection Agency (EPA), pursuant to 42 U.S.C. § 6926, to operate its own solid and hazardous waste program; the State obtained various phases of interim authorization beginning in 1982, and received final authorization in January 1985. Under state statute, the legislature has delegated responsibility for the administration of Vermont's hazardous waste, solid waste and water control laws to the Secretary of the Agency of Natural Resources (formerly the Agency of Environmental Conservation). The current Secretary, Jonathan Lash, has delegated some of this responsibility to the Commissioner of the Department of Environmental Conservation, but remains ultimately in charge of these programs.

The State takes the position that the Burlington Landfill is a solid waste landfill, not a hazardous waste storage or disposal facility. Accordingly, the State does not require the City to have a hazardous waste permit to operate the Landfill.

The January 31, 1985 Assurance of Discontinuance¹ was filed with the Chittenden Superior Court and was entered as an Order of that court on March 7, 1985. On December 18, 1985, the State of Vermont brought an action against the City in Chittenden Superior Court to enforce the March 7 Order. The State sought compliance with the provisions requiring the City to install a leachate collection system by September 1, 1985, and a methane control system by December 2, 1985. These systems did not become operational until March of 1986.

The January 31, 1985 assurance also imposed a closure option on the City—either choose another landfill site and close the Burlington Landfill by January 1, 1988, or begin operating a resource recovery facility (RRF) and close the Landfill by January 1, 1990.

The City never notified the State in writing of its choice of the two closure options, despite its obligation to do so in writing.² The City's Board of Aldermen did, however, adopt a resolution to pursue the RRF option. During the period from 1980 through early 1983, the City developed plans to construct a composting and recycling facility, with the State's cooperation and approval. As a result, the January 1990 closure date became effective. Subsequently, the Mayor of Burlington vetoed the aldermanic resolution electing the RRF option.

In addition to the various assurances of discontinuance and amendments thereto entered into by the City and the State, the City also received Transitional Operational Authority (TOA) from the State to operate the Landfill. The State granted the City such authority by letter dated July 31, 1987.³ The State has also performed its own environmental assessment of the Landfill.

Secretary Lash testified that the State conducted substantial monitoring and testing of the area in and around the Landfill, particularly the Intervale, during the years 1985 and 1986. The State collected both leachate data and biological data. As a result of its investigation, the State concluded that the Landfill did not, at that time, present an imminent and substantial endangerment to human health or the environment. However, the State also determined that January 1, 1990 was an appropriate closure date in view of the environmental concerns presented by the Landfill. According to Secretary Lash, the State still intends to enforce the January 1, 1990 closure date.

Craig Heindel, a hydrogeologist with the firm of Wagner, Heindel & Noyes, conducted studies of the surface water and groundwater flow regime in and around the Landfill. According to his studies, the flow of groundwater and surface water in the vicinity of the Landfill is horizontally from south to north. It is highly unlikely that any groundwater flows in a southerly direction beneath the Landfill.

The soils beneath the Landfill have very low permeability. There is a slight downward vertical flow beneath the Landfill, a downward flow under the railroad embankment, and a strong upward flow immediately north of the embankment. As a result, the groundwater entering the Landfill from the south, and any groundwater originating in the Landfill, flows northward and discharges into the very upper layers of the cattail marsh, immediately north of the railroad embankment.

Heindel also studied the input of water into the Intervale from various sources, including the Landfill. On average, approximately 500,000 to 600,000 gallons of water enter the Intervale per day. Of this, an average of 1,000 gallons is groundwater from the Landfill. Other sources of water include precipitation, periodic flooding from the Winooski River, storm water discharges from the street drainage system and groundwater from Burlington's "north end," and rain water draining off the beltline highway which runs along side Intervale.

The tests conducted by the engineering firm of...