Friends of Sakonnet v. Dutra, Civ. A. No. 88-704P

• Citation: 738 F. Supp. 623
• Decision Date: 18 May 1990
• Docket Number: Civ. A. No. 88-704P,88-705P.
• Parties: FRIENDS OF the SAKONNET, Aurelio and Francine Lucci, Michael and Linda Kenfield, and Tim and Linda Boudewyns v. Bernard DUTRA, Eugene Lawrence Alofsin, David LaRoche, and Q.L.C.R.I., Inc. James E. O'NEIL, Attorney General of Rhode Island, and Robert Bendick, Jr., Director of Rhode Island Department of Environmental Management v. Q.L.C.R.I., INC., Bernard R. Dutra, David F. LaRoche, the LaRoche Grantor Income Trust, David L. Brodsky, P. Alan Ryan, Carolyn Rose, a.k.a. Carolyn McElroy, Paul E. Buff, Davisville Credit Union, and Suffield Bank.
• Court: U.S. District Court — District of Rhode Island

738 F. Supp. 623

FRIENDS OF the SAKONNET, Aurelio and Francine Lucci, Michael and Linda Kenfield, and Tim and Linda Boudewyns v. Bernard DUTRA, Eugene Lawrence Alofsin, David LaRoche, and Q.L.C.R.I., Inc.

James E. O'NEIL, Attorney General of Rhode Island, and Robert Bendick, Jr., Director of Rhode Island Department of Environmental Management v. Q.L.C.R.I., INC., Bernard R. Dutra, David F. LaRoche, the LaRoche Grantor Income Trust, David L. Brodsky, P. Alan Ryan, Carolyn Rose, a.k.a. Carolyn McElroy, Paul E. Buff, Davisville Credit Union, and Suffield Bank.

Civ. A. Nos. 88-704P, 88-705P.

United States District Court, D. Rhode Island.

May 18, 1990.

COPYRIGHT MATERIAL OMITTED

Betsy Grossman de Leiris, Newport, R.I., S. Paul Ryan, East Providence, R.I., Timothy M. Boudewyns, Portsmouth, R.I., Michael Rubin, Sp. Asst. Atty. Gen., Charles P. Messina, Kendra Beaver, Dept. of Environmental Management, Providence, R.I., for plaintiffs.

James L. Paradise, Middletown, R.I., pro se.

Kenneth R. Tremblay, Tremblay & Gorton, Portsmouth, R.I., Donato Andre D'Andrea, Newport, R.I., Bruce Hunter Cox, Slepkow, Slepkow & Bettencourt, Inc., East Providence, R.I., Matthew Medeiros, Flanders & Medeiros, John Voorhees, Tillinghast, Collins & Graham, Providence, R.I., William Y. Chaika, Chaika & Chaika, Cranston, R.I., Stephen B. Lang, Barry Kusinitz, Martin Aisenberg, Temkin & Miller, Thomas H. Quinn, Jr., Providence, R.I., for defendants.

OPINION AND ORDER

PETTINE, Senior District Judge.

Raw sewage from the Sherwood Village development in Portsmouth, Rhode Island, has been pouring into the Sakonnet River since at least 1969. This has not been a secret; the stretch of river near the development has been closed for twenty years to shellfishing and swimming due to the sewage; the state has issued orders to stop polluting that have gone unheeded and unenforced; a home has been rendered uninhabitable because sewage seeped into its cellar; the town of Portsmouth has made repairs to the septic system so that the sewage would be dumped out in the River instead of oozing down the hill and across the beach to the River; and the town has refused further building permits to the developers—owners of the failed septic system. But no one has stopped the fouling of the Sakonnet River, and no one has enforced the laws—laws that were designed to put an end to this kind of disrespect for the environment.

The issue was brought to this Court in two citizen suits filed in December 1988. The first suit was filed by The Friends of Sakonnet¹ and several individual homeowners with property on the Sakonnet in the town of Portsmouth.² The plaintiffs in this suit charge the defendants—Q.L.C. R.I., the present corporate owner of the land on which the failed sewage system is located (the land); David LaRoche, the sole trustee of the Trust that owns Q.L.C.R.I.; and Bernard Dutra and Eugene Lawrence Alofsin, former owners of the land—with violations of the federal Water Pollution Control Act, 33 U.S.C. §§ 1251 et seq. (federal Clean Water Act) and state nuisance laws. The second citizen's suit was brought by Rhode Island Attorney General James E. O'Neil and the Director of the Rhode Island Department of Environmental Management Robert Bendick (the state plaintiffs) in their respective capacities as state environmental advocate and director of the state agency in charge of enforcing the federal and state water pollution laws. These state plaintiffs have sued Q.L.C.R.I., David LaRoche, the LaRoche Grantor Income Trust (which owns Q.L.C.R.I.), Bernard Dutra (in his capacity as past owner of the land and as a manager for Q.L.C.R. I.), Carolyn Rose and Paul Buff (in their capacities as employees and managers at Q.L.C.R.I.), David Brodsky and P. Alan Ryan (to whom Q.L.C.R.I. transferred the land for very short periods of time); and the Suffield Bank and the Davisville Credit Union (each of which hold a mortgage on the land).³ The state plaintiffs claim that these defendants have violated the federal Clean Water Act, the Rhode Island Clean Water Act (R.I.Gen.Laws §§ 46-12-1 et seq.), a 1979 Order from the Rhode Island Department of Environmental Management (DEM) that ordered the then owners of the sewage system to cease discharging into the Sakonnet River without a license, and state public nuisance laws. The plaintiffs are asking for declaratory, injunctive, and monetary relief.⁴ The two suits were consolidated by this Court.

After the complaints were filed, the defendants (Landowners) brought a third-party complaint against the homeowners in the Sherwood Village subdivision (Homeowners) and Donna Barker in her capacity as financial director for the town of Portsmouth. The Landowners claim that the Homeowners should be held jointly and severally liable if the Landowners are found liable because the Homeowners have a dominant tenement on the Landowners' land and because the Homeowners are the "point source" of the pollution under the Clean Water Acts. The Homeowners counterclaimed against the Landowners. The defendants seek to hold Barker liable as financial director of Portsmouth because, according to defendants, the town is the owner of the pipe that is discharging the sewage into the Sakonnet and therefore the town should be held liable under the state and federal Clean Water Acts.

Previous to today, this Court has executed an attachment on the Landowners' property for $3.5 million and has imposed a temporary restraining order on Q.L.C.R.I. and David LaRoche. The restraining order mandates that sewage be prevented from entering the Sakonnet River from Q.L.C.R. I.'s land.⁵ Still before this Court are various summary judgment motions and preliminary injunction motions.

I. BACKGROUND

The Sherwood Village subdivision in Portsmouth, Rhode Island, was developed near the Sakonnet River in the middle 1950s. The development contains thirty-three single-family residences and a number of undeveloped lots. The developer laid sewer lines under the streets of the development, and all thirty-three homes are connected to these sewer lines. The lines under the streets ran to a tract of land owned by the developer where, in the 1950s and early 1960s, the sewage was collected in a large communal septic tank, then deposited in a leaching field and chlorinated before being drained through an outfall pipe into the Sakonnet River (the septic system). Within recent memory the Homeowners have not paid sewage fees for the disposal of their waste water; it is unclear if they ever have. Sometime before 1969, the developer sold the land containing the septic system, as well as an adjacent track of undeveloped land along the Sakonnet River, to Sarfco, Inc.

By 1969 the septic system had failed and raw sewage was running into the Sakonnet River. The state closed the River to shellfishing in the immediate area of the development, and swimming in the area has been prohibited. The Rhode Island Department of Environmental Management investigated the septic system in 1979. This investigation revealed that raw sewage was running directly from the leaching field, on the surface of the ground for approximately 250 feet, into the Sakonnet River and into the basement of a home⁶ located between the septic system and the River. Sewage also reached the River through the outfall pipe. Approximately 8,000 gallons per day of raw sewage was reaching the River from the failed system. The state repeatedly advised Sarfco of this problem, but Sarfco took no action to correct the system. After holding a formal hearing, DEM issued a notice of violation under Rhode Island law to Sarfco. The decision and order that issued from this hearing (the 1979 Order) held Sarfco solely responsible for correcting the septic system. An appeal was taken by Sarfco to the Providence Superior Court; that appeal was dismissed with prejudice by stipulation. Sarfco never complied with the Order. The town of Portsmouth, with a permit from DEM,⁷ made emergency repairs to the outfall pipe. The town billed Sarfco for these repairs, placing a lien on the property when the bill went unpaid. Sarfco eventually paid. The home into which sewage ran is uninhabitable.

Sarfco sold the land to defendants Dutra and Alofsin in 1981. Dutra and Alofsin knew of the outstanding 1979 DEM Order when they bought the property. Sarfco, Inc. was defaulted by the Rhode Island Secretary of State sometime after this sale. In 1983 Dutra and Alofsin were served with notices of violation of state water pollution laws; the Homeowners were served with similar notices. No hearings were held on these notices of violation. The notices were not complied with.

Late in 1986 defendants Dutra and Alofsin sold their property to defendant Q.L.C. R.I. Again the buyers had knowledge of the outstanding 1979 DEM Order. In 1988 Q.L.C.R.I. was contacted by the United States Army Corps of Engineers about the raw sewage entering the Sakonnet River. The Corps pointed out that no permit had been issued by any federal or state agency that could authorized the outfall pipe in the river or could authorize the discharge into the river. Q.L.C.R.I. was notified of the criminal sanctions for violation of the Clean Water Act. The Corps requested answers to certain questions within fifteen days. Also in 1988, DEM sent Q.L.C.R.I. a letter demanding that an acceptable plan for a sewage treatment facility be submitted immediately.

The case is now before this Court on numerous motions.⁸ Because the solutions to many of the motions rely on the same questions of law, this opinion will first address the relevant questions of law. The motions will then be dealt with individually.

II. POINT SOURCE

A. Background

The federal Clean Water Act, which is closely tracked by the state's clean water act,⁹ decrees that "the discharge of any pollutant by any person without a permit shall be unlawful." 33 U.S.C. § 1311(a). The Act defines "discharge of a pollutant" as "any addition of any pollutant...