Ringbolt Farms Homeowners Ass'n v. Town of Hull

• Citation: 714 F. Supp. 1246
• Decision Date: 27 March 1989
• Docket Number: Civ. A. No. 87-2524-N.
• Parties: RINGBOLT FARMS HOMEOWNERS ASSOCIATION, Plaintiff, v. TOWN OF HULL, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

714 F. Supp. 1246

RINGBOLT FARMS HOMEOWNERS ASSOCIATION, Plaintiff, v. TOWN OF HULL, et al., Defendants.

Civ. A. No. 87-2524-N.

United States District Court, D. Massachusetts.

March 27, 1989.

David Arons, Bruce A. Issadore, for plaintiff.

James B. Lampke, James A. Milkey, Asst. Atty. Gen., for defendants.

ORDER

DAVID S. NELSON, District Judge.

Magistrate's recommendation is hereby adopted, and pursuant thereto, motion to dismiss, Allowed; Motion to leave to file amended complaint, Denied.

REPORT AND RECOMMENDATION RE: DEFENDANT MASSACHUSETTS DEPARTMENT OF ENVIRONMENTAL QUALITY ENGINEERING'S MOTION TO DISMISS (DOCKET 5D) AND PLAINTIFF'S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT (DOCKET 22)

PATTI B. SARIS, United States Magistrate.

This action arises from the alleged unlawful disposal of solid waste at, and discharge of pollutants into the Weir River from, a landfill in Hull, Massachusetts operated by the Hull Municipal Refuse Facility (the "Landfill"). Plaintiff Ringbolt Farms Homeowners Association ("Ringbolt Farms") consists of landowners who reside across the river in nearby Hingham. Defendants are the Town of Hull and the Town of Hull Board of Health (hereinafter collectively referred to as the "Town of Hull defendants"), and the Massachusetts Department of Environmental Quality Engineering ("DEQE").

The primary issue before the Court is whether plaintiff can properly bring an action against the DEQE in federal court for "breaching its duty" to enforce the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6901 et seq., and the Federal Water Pollution Control Act ("FWPCA"), 33 U.S.C. § 1251 et seq. Although the case law on point is sparce, and there is no controlling precedent in this circuit, the Court concludes it cannot.

PROCEDURAL BACKGROUND

The original complaint, filed on October 16, 1987, alleges in Count I that the Town of Hull defendants have violated and are violating the prohibition against open dumping contained in § 6945(a) of RCRA, and the regulations promulgated under RCRA, by discharging pollutants into surface waters of the United States without a valid permit as required under the National Pollutant Discharge Elimination System ("NPDES") and by failing to provide periodic cover material or utilize other techniques to protect the public health. Count II alleges that the Town of Hull defendants have been and are in violation of the FWPCA, and regulations promulgated thereunder, by discharging pollutants into the Weir River and the adjacent wetlands without an NPDES permit authorizing the discharges. Counts III and IV further allege that the Town of Hull defendants have been and are in violation of Massachusetts statutory provisions, and certain regulations promulgated under these provisions, governing solid waste disposal, Mass. Gen.L. ch. 111, § 150A, and the discharge of pollutants into state waters, Mass. Gen.L. ch. 21, § 42.

The only cause of action asserted against the DEQE is contained in Count III of the complaint. In that count, plaintiff claims that the DEQE has failed to exercise its authority under the state's solid waste act, Mass.Gen.L. ch. 111, § 150A, "by not requiring and enforcing closure of an overcapacity Landfill and by not requiring operations to be performed in full compliance with federal and state law." (Docket 1C, ¶ 66).

On December 14, 1987, the DEQE filed a motion pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) to dismiss all claims alleged against it by the plaintiff. (Docket 5D). Plaintiff opposes the motion to dismiss and has also filed a motion for leave to file an amended complaint in part to set forth "facts not reflected in the original Complaint which will adequately respond to Defendant DEQE's Motion to Dismiss." (Docket 22).

The amended complaint which plaintiff seeks to file adds certain officials at the DEQE as named defendants and alleges additional claims against the DEQE under RCRA and the FWPCA.¹ Specifically, plaintiff claims in Counts I and II of the amended complaint that the DEQE is "in ongoing violation" of these two federal statutes because it "has been aware of continued violations" of RCRA and the FWPCA and "has permitted the same, thereby breaching its duty to enforce said federal provisions." (Amended Complaint, ¶¶ 53, 64). The DEQE opposes plaintiff's motion for leave to amend the complaint to add these claims on the grounds that the amendment would be futile and that plaintiff's actions exhibit a dilatory motive.

The DEQE's motion to dismiss and plaintiff's motion for leave to amend its complaint have been referred here for report and recommendation.² A hearing was held on the pending motions on June 16, 1988. The Court reserved ruling on the motions upon hearing that a settlement agreement was being negotiated between plaintiff and the Town of Hull, which might make the controversy with the DEQE moot. (See Docket 41). At a status conference on December 12, 1988, the Court informed the parties that it would issue a ruling on the pending motions unless it received notification of settlement within 30 days. To date, the Court has not received any notice of settlement from the parties. The Court RECOMMENDS that the DEQE's motion to dismiss be ALLOWED and that the plaintiff's motion for leave to amend the complaint be DENIED on the ground that amendment would be futile.

FACTUAL BACKGROUND

The facts as alleged in the complaint and proposed amended complaint are as follows.

Ringbolt Farms is an unincorporated association of owners of land of a residential subdivision located at Ringbolt Road, Hingham, Massachusetts. (Complaint, ¶ 3; Amended Complaint, ¶ 3). The subdivision is located across the Weir River from the Landfill which is the subject of this lawsuit. (Id.). The Landfill is located in the Town of Hull and is bounded by Logan Avenue and the Weir River. (Complaint, ¶ 7; Amended Complaint, ¶ 10). It is owned by the Town of Hull and has been in operation for over 40 years, taking in solid waste brought by individual residents of the Town of Hull and by private collectors under contract with commercial and residential solid waste disposers. (Complaint, ¶¶ 4, 8-9; Amended Complaint, ¶¶ 4, 11-12).

Since the early 1970's, the DEQE and the Town of Hull have issued inspection reports citing the Landfill for violations of the state solid waste act, Mass.Gen.L. ch. 111, § 150A, and regulations promulgated thereunder, including insufficient daily and final cover, failure to control windblown litter, improper spreading and compacting of refuse, improper disposal of bulky wastes, improper grading and other continuing violations. (Complaint, ¶ 10; Amended Complaint, ¶ 13). The violations continued, and as a result, the DEQE issued an order dated May 20, 1977, requiring the Town of Hull to abate the conditions in violation of Mass.Gen.L. ch. 111, § 150A, and to submit to the DEQE a long-range solution for solid waste disposal. (Complaint, ¶¶ 11-12; Amended Complaint, ¶¶ 14-15). The Town of Hull did not and never has complied with the requirements of the DEQE order. (Complaint, ¶ 13; Amended Complaint, ¶ 16).

No later than May 1978, the DEQE determined that the Landfill was near full capacity and requested the Town of Hull to submit plans for final closure of the facility. (Complaint, ¶ 14; Amended Complaint, ¶ 17). SEA Consultants, Inc., an engineering firm, submitted a closure plan on May 16, 1978 which indicated that the remaining capacity of the Landfill was less than one year. (Complaint, ¶ 15; Amended Complaint, ¶ 18). From 1978 to 1984, the DEQE continued in correspondence to the Town of Hull to cite violations at the Landfill; the DEQE also requested plans from the Town of Hull for the final closure of the Landfill, stating in a letter written sometime after February 23, 1984 that "continued operation and/or expansion of the municipal refuse disposal facility off Logan Avenue in Hull is not an environmentally sound alternative for the Town and will not be allowed or tolerated" and that "definitive steps shall be taken for immediate closure of the existing operation." (Complaint, ¶ 16, Ex. 10; Amended Complaint, ¶ 19, Ex. 10).

Despite the DEQE's determination that closure of the Landfill was necessary, the Landfill was permitted to operate on an "interim basis" because of the Town of Hull's financial burdens in developing an alternative source of refuse disposal. (Complaint, ¶ 17-18; Amended Complaint, ¶ 20-21). Moreover, in contradiction of its own prior determination, the DEQE accepted plans from the Town of Hull in June 1984 for the eventual capping and sealing of the existing Landfill ("Phase 1") and expansion of the Landfill into certain adjacent parcels of land located to the west of Phase 1 ("Phase 2"), conditioning approval on, among other things, compliance with Mass.Gen.L. ch. 111, § 150A and the regulations promulgated thereunder. (Complaint, ¶ 19, 21; Amended Complaint, ¶ 22, 24). The DEQE allowed the phased operation and expansion of the existing Landfill because of the Town of Hull's financial burdens. (Complaint, ¶ 20; Amended Complaint, ¶ 23).

Despite the Town of Hull defendants' repeated assurances to the DEQE, Phase 1 of the Landfill continues to operate as an active facility. (Complaint, ¶ 22; Amended Complaint, ¶ 24). Phase 1 does not contain any liner and collection system for the purpose of recycling leachate, which is a pollutant, and the Landfill has had chronic problems with leachate generation and discharges into the Weir River and adjacent ground waters. (Complaint, ¶¶ 3, 24-25, 45; Amended Complaint, ¶¶ 3, 27-28, 50). In addition, sewage sludge has been and may presently be disposed of at the Landfill without a permit. (Complaint, ¶ 27; Amended Complaint, ¶ 30).

Although the Landfill discharges leachate into the Weir River and adjacent wetlands, the Town of Hull defendants have never applied to the Environmental Protection Agency ("EPA") for a NPDES permit allowing such...