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Toxics Action Center, Inc. v. Casella Waste Systems, Inc.

United States District Court, D. Massachusetts

September 30, 2018

TOXICS ACTION CENTER, INC. et al, Plaintiffs,
v.
CASELLA WASTE SYSTEMS, INC., SOUTHBRIDGE RECYCLING & DISPOSAL PARK, INC. and THE TOWN OF SOUTHBRIDGE Defandants

          MEMORANDUM OF DECISION AND ORDER ON DEFENANT ON DEFENDANTS' CASELLA WASTE SYSTEMS AND SOUTHBRIDGE RECYCLING AND THE TOWN OF SOUTHBRIDGE'S MOTIONS TO DISMISS

          Timothy S. Hillman United States District Judge.

         Introduction

         This action is brought by two sets of Plaintiffs: (a) Two non-profit environmental organizations, Toxics Action Center, Inc. (“Toxics Action”) and Environment America, Inc. d/b/a Environment Massachusetts (“Environment Massachusetts”) (collectively, the “Group Plaintiffs”); and (b) Ninety-nine individuals who reside or recently resided near the Landfill in Charlton (the “Individual Plaintiffs”). Plaintiffs bring this action under the citizen suit provisions of two federal environmental statutes, the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. (“RCRA”), and the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. (“Clean Water Act, ” or “CWA”). The RCRA claim, which is brought both by the Group Plaintiffs and the Individual Plaintiffs, alleges that Defendants have contributed and are contributing to an imminent and substantial endangerment to human health and the environment within the meaning of Section 7002(a)(1)(B) of RCRA, 42 U.S.C. § 6972(a)(1)(B). The CWA claim, brought solely by the Group Plaintiffs, alleges that Defendants are discharging pollutants to waters of the United States without National Pollutant Discharge Elimination System (“NPDES”) Permit authorization, in violation of Sections 301 and 402 of the CWA, 33 U.S.C. §§ 1311 and 1342. The Individual Plaintiffs bring several supplemental state law claims, which will not be addressed in this memorandum: a statutory claim under the Massachusetts Oil and Hazardous Material Release Prevention and Response Act, M.G.L. c. 21E (“c. 21E”), and common law claims of nuisance, trespass, and unjust enrichment.

         Defendants Casella Waste Systems, Inc. and Southbridge Recycling and Disposal Park, Inc. (“SRDP Defendants”) and the Town of Southbridge (“the Town”) (collectively, “the Defendants”) move to dismiss claims alleged against them under the Clean Water Act (by Group Plaintiffs only) and the Resource Conservation and Recovery Act (by Group Plaintiffs and Individual Plaintiffs). Both contend that this Court lacks subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) to adjudicate the Clean Water Act (Count 1) and Resource Conservation and Recovery Act (Count 2) claims. Defendants also argue that the allegations fail to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6).

         This Memorandum of Decision and Order addresses Defendants' motions to dismiss Counts I and II (Docket Nos. 44 and 46). For the reasons set forth below, those motions are granted.

         Facts

         The Town of Southbridge established and operated the Landfill on Town property beginning in 1981 and has continuously owned the Landfill. The Town constructed and operated Phases I, II and III of the Landfill. In 1996, the Town contracted with Wood Recycling, Inc. (“WRI”) to operate the Town Landfill on behalf of the Town. WRI designed, engineered and constructed subsequent Phases IV, V, VI and 7.1A. In 2003, CWSI purchased WRI. As a condition of purchase, CWSI entered into a settlement with the Massachusetts Department of Environmental Protection (“MassDEP”) and the Attorney General, addressing alleged prior WRI violations for which CWSI had no involvement. Casella subsequently changed the name of WRI to Southbridge Recycling & Disposal Park, Inc. (“SRDP”).

         The Landfill contains approximately 51 acres of waste disposal space and is divided into multiple units, or cells, that have been constructed sequentially over time, beginning in approximately 1981. Each Landfill cell is a unit formed out of either compacted subgrade (for Phases I and II) or synthetic liners (for Phases III through VII) into which waste is deposited. Phases IIIC through VII of the Landfill incorporate leachate collection systems that are intended to direct liquid that has passed through solid waste (i.e., leachate) to a network of channels, pipes, and/or pumps that transport the leachate to holding tanks or ponds. The Landfill is bordered by a network of wetlands on its southwestern, western, northwestern, and eastern sides. The wetland to the west of the Landfill is referred to as “Wetland A”; the wetland to the northwest of the Landfill, “Wetland Z”; and the wetland to the east of the Landfill, “Wetland I.” Casella, SRDP, and their consultants collect quarterly samples both from groundwater monitoring wells located around the Landfill and from surface water monitoring locations in Wetlands A and I.

         Between November 2011 and September 2017, Defendants and their consultants have identified elevated concentrations of several pollutants in groundwater monitoring wells at the Landfill.[1] Between November 2011 and September 2017, samples from surface water monitoring locations in Wetland A and Wetland I have contained elevated concentrations of similar pollutants have been detected at surface water monitoring locations in these wetlands in concentrations that exceed applicable Water Quality Standards or ORSGs.[2] Plainitffs allege that groundwater flowing west/northwest through Landfill cells carries pollutants from the Landfill into Wetlands A and Z, and that groundwater flowing east through Landfill cells carries pollutants from the Landfill into Wetland I.

         Plaintiffs allege that pollutants released by the Landfill to groundwater also enter bedrock fractures that transport these pollutants to drinking water aquifers in the area of No. Ten Schoolhouse Road, Berry Corner Road, H Foote Road, Eleanor Lane, Sawmill Circle, and Hill Road in Charlton (the “Charlton Aquifers”) and to drinking water aquifers in the area of McGilpin Road, Fiske Hill Road, Old Farms Road, Apple Hill Road, and Summit Ridge in Sturbridge (the “Sturbridge Aquifers”).

         Thirty one of the residential wells of the Individual Plaintiffs that draw from the Charlton Aquifers have been found to contain some level of 1, 4-dioxane, TCE, chlorobenzene, 1, 1-DCA, 1, 1-DCE, cis- 1, 2-DCE, toluene, chloroform, benzene, naphthalene, lead, and/or arsenic since 2013. At least 14 of these wells have been found to contain concentrations of 1, 4-dioxane, TCE, 1, 1-DCE, arsenic and/or lead that exceed the applicable limits. Plaintiffs' allege that because the Landfill is the only known source of the above-listed chemicals found in the Charlton residential wells, this demonstrates that the Landfill is the source of this contamination.

         Beginning in January 2017, DEP and/or consultants retained by DEP have collected samples from 44 residential wells on McGilpin Road and Fiske Hill Road in Sturbridge and tested those samples for the presence of pollutants. 43 out of the 44 residential wells sampled have been found to contain lead and/or 1, 4-dioxane. At least 27 of these wells have been found to contain lead in concentrations that exceed the applicable limits. Plaintiffs' allege that because the Landfill is the only known source of the above-listed chemicals found in the Sturbridge residential wells, this demonstrates that the Landfill is the source of this contamination.

         The water testing data upon which the Plaintiffs' Amended Complaint relies is largely the result of testing performed by Casella/SRDP in Charlton, as required by MassDEP, and by MassDEP itself in Sturbridge. This testing is designed to identify the extent of any groundwater contamination and what further remedial measures may be necessary. Since 2002, SRDP has conducted a residential well monitoring program. In 2015, in response to detected groundwater contamination in some residential wells, SRDP began providing bottled water to certain residents and/or installed Point of Entry Treatment (“POET”) systems at affected homes. Defendants are providing residents with bottled water and/or filtration systems in Charlton and MassDEP is providing bottled water to certain residents in Sturbridge.

         Plaintiffs allege that the presence of elevated concentrations of the pollutants fournd in the Landfill's groundwater monitoring wells and the Wetlands, together with the groundwater flow analyses performed by Defendants' consultants, demonstrate that Landfill cells are adding these pollutants to Wetlands A, Z. Plaintiffs further allege facts that show the presence of these same pollutants in the Landfill's groundwater monitoring wells demonstrate that the Landfill is the source of this contamination and that the pollutants are leaching from Landfill cells into groundwater and entering bedrock fractures that then convey the pollutants to the Sturbridge and Charlton residential wells.

         Since 1996, WRI/SRDP has played a direct role in managing and funding the Landfill's operations and pollution control activities. Its operational role includes the management and disposal of solid waste, groundwater well installation and monitoring, maintenance and operation of a leachate collection system, and provision of services incidental to pollution control. Since purchasing WRI in 2003, Casella has played a direct role alongside SRDP in managing and funding the Landfill's operations and pollution control activities. Its operational role includes direct management of the Landfill's groundwater monitoring work. ...


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