CONCORD, N.H.—On Aug. 11, after six months of briefings and a two-hour oral argument, U.S. District Court Judge Paul Barbadoro issued a written opinion setting the stage for a trial to determine whether the Clean Water Act’s (CWA) permitting requirements govern the discharge of landfill-related pollutants into New Hampshire’s Ammonoosuc River.
NELC attorneys filed the long-running case in May 2018 on behalf of two non-profit environmental groups—the Toxics Action Center (now Community Action Works) and the Conservation Law Foundation—against North Country Environmental Services and its corporate parent, Casella Waste Systems. Together, the companies own and operate a large municipal waste landfill in Bethlehem, N.H., which began as an unlined landfill but is now underlain by a plastic liner.
The companies fought the case every step of the way. Initially, they asked the judge to dismiss the case entirely, arguing that the underground flow of pollutants from a landfill site is exempt from the CWA. Judge Barbadoro denied that motion, noting that NELC attorneys had presented evidence demonstrating that the underground pollutant flow actually enters the water via a small above-ground conveyance known as the Drainage Channel.
In 2019, the companies requested that the judge stay the case to await a ruling by the Supreme Court as to whether pollutant discharges that reach surface waters through groundwater can be subject to the CWA. In 2020, when the Supreme Court ruled in the affirmative, Judge Barbadoro reopened the case. Undeterred, the companies then argued that the Drainage Channel is a naturally occurring tributary of the Ammonoosuc and thus not a “point source” of pollutants according to the CWA.
In December, the companies filed a motion for summary judgement asking the court to rule in their favor as a matter of law, eliminating the need for trial. NELC attorneys followed suit in February. After several rounds of written briefing, Judge Barbadoro heard oral arguments on May 15.
In August, the judge rejected the companies’ argument, writing that, “the water feeding the Channel is contaminated with … pollutants as a result of landfilling activities, and it, therefore, meets the definition of landfill wastewater.”
The question now is whether the Drainage Channel is a “waste treatment system” according to the CWA. If so, then it is subject to the statute’s permitting requirements. “[A]s defendants boasted to [the state environmental agency] on several occasions,” the judge noted, “[their] reconstruction of the Channel … sought to encourage the natural treatment of iron and manganese before they reach the river, which suggests that it was designed to treat those pollutants.”
Nonetheless, Judge Barbadoro dec-lined to rule without giving the defendants the opportunity to address the issue at trial.
No trial date has been set.
