Winter 2019: Vol. 21, No. 1

NELC seeks to appeal adverse ruling in Massachusetts leaking landfill case

WORCESTER, Mass.—Public records demonstrate that the massive solid waste landfill in the Town of Southbridge, Massachusetts, is leaching hazardous chemicals into groundwater aquifers that supply drinking water to surrounding communities, and that it is discharging many of the same chemicals into nearby wetlands, and thus into a stream and a river system. Dozens of private wells have been rendered unsafe due to the influx of chemicals from the contaminated aquifers.

In June 2017, NELC attorneys filed suit in U.S. District Court against the Town of Southbridge and Casella Waste Systems, the operator of the landfill, on behalf of Environment Massachusetts and Toxics Action Center. The suit alleges that the ongoing discharges to the wetlands violate the federal Clean Water Act, and that the ongoing contamination of the groundwater and wells constitutes an “imminent and substantial endangerment” within the meaning of the federal Resource Conservation and Recovery Act (RCRA). Ninety-nine individual owners of affected drinking water wells, represented by separate counsel, joined in the RCRA claim and also asserted state law claims for compensation and other relief.

In August 2017, the defendants filed motions asking District Court Judge Timothy Hillman to dismiss the CWA and RCRA claims. More than a year later, on Sept. 30, 2018, Judge Hillman issued an order granting these motions and dismissed the case in full. Because that order resolved all claims before the court, the plaintiffs had a clear right to immediately appeal to the 1st U.S. Circuit Court of Appeals. Three days later, however, the judge issued an amended opinion, partially reversing course. The judge announced that he would retain jurisdiction over the state law claims, thus depriving the plaintiffs of the automatic right to appeal the dismissal of the federal claims.

But federal law allows district court judges to certify issues for immediate appeal before a case is fully resolved, and NELC attorneys have asked Judge Hillman to do just that. On Oct. 29, NELC attorneys filed a motion for certification of immediate appeal, citing the provisions of federal rule and statute that contemplate a timely appeal in situations such as this one.

“This is precisely the type of case for which these provisions were written,” said NELC Litigation Director Chuck Caldart. “Moreover, the order of dismissal is clearly wrong on the law.”

In their motion, NELC attorneys noted that the dismissal of the plaintiffs’ RCRA claim was in direct conflict with a well-known 1st Circuit decision that has been cited with approval by other circuit courts of appeal. Judge Hillman dismissed the RCRA claim because the Massachusetts Department of Environmental Protection has issued certain administrative orders against the landfill under state law. RCRA, however, provides that states may bar an “imminent and substantial endangerment” claim only if they file their own RCRA suit or take specified actions under the federal Superfund statute. Massachusetts has taken no such action here.

In a 2011 decision, the 1st Circuit Court of Appeals ruled that it is an error to dismiss an “imminent and substantial endangerment” claim in any other situation. “To abstain in situations other than those identified in the statute,” the 1st Circuit noted, “threatens an end run around RCRA, and would substitute [the court’s] judgment for that of Congress.”

As the federal circuit courts have stressed,” explained Caldart, “Congress created RCRA’s imminent and substantial endangerment provision to provide affected citizens the right to go to federal court to protect their own health from the risks that can be created when solid waste disposal goes awry.

Federal judge denies Casella’s motion to dismiss Clean Water Act suit

CONCORD, N.H.—On Sept. 25, 2018, after holding a hearing in U.S. District Court, Judge Paul Barbadoro denied the motion by Casella Waste Systems and North Country Environmental Services (NCES) to dismiss a Clean Water Act lawsuit filed by Toxics Action Center and Conservation Law Foundation (CLF). In the lawsuit, brought by NELC attorneys, Toxics Action Center and CLF allege that the NCES landfill in Bethlehem, New Hampshire, is discharging pollutants into the Ammonoosuc River without the required Clean Water Act permit.

The lawsuit alleges that the pollutants released by the landfill to the Ammonoosuc include contaminated groundwater, landfill leachate, iron and manganese (which can cause discoloration and odor problems), and 1,4-dioxane (a suspected carcinogen). The Clean Water Act prohibits discharges of pollutants such as these without a valid National Pollutant Discharge Elimination System permit, and Casella and NCES have admitted that they do not have such a permit for their drainage channel.

“Nearby families can’t run from polluted water, and Casella and NCES shouldn’t be able to either,” said Shaina Kasper, Vermont and New Hampshire state director at Toxics Action Center. “The landfill’s pollution has gone on for far too long and it’s time to hold them accountable.”

In their motion to dismiss, Casella and NCES argued that the members of Toxics Action Center and CLF are not injured by the pollution and thus do not have standing to bring this lawsuit; that the drainage channel is not the type of pollutant conveyance that requires a permit under the Clean Water Act; and that Casella, as the corporate parent, is not a proper defendant. Following the arguments, Judge Barbadoro denied the motion to dismiss on all three grounds.

“We are pleased that Judge Barbadoro saw through the defendants’ spurious arguments and ruled quickly on this motion,” said NELC staff attorney Kevin Budris, who argued on behalf of the citizen groups at the hearing. “NELC looks forward to continuing our fight, side by side with Toxics Action Center and CLF, against illegal pollutant discharges into such an important waterway in New Hampshire’s north country.”

“The recent ruling is an important step forward in our case,” said Tom Irwin, Vice President and Director of CLF New Hampshire. “And we will continue to fight to protect the Bethlehem community and precious resources like the Ammonoosuc.”

The lawsuit is scheduled for trial in October 2019. At trial, NELC attorneys will ask the court to order Casella and NCES to obtain the required Clean Water Act permit, and to abide by the monitoring and pollution reduction requirements in that permit.

NELC attorneys take on ExxonMobil in 5th U.S. Circuit Court of Appeals

NEW ORLEANS—Arguments made by ExxonMobil’s lawyers to persuade judges to overturn parts of a landmark air pollution ruling were met with skepticism this fall.

On Nov. 7, 2018, a three-judge panel of the 5th U.S. Circuit Court of Appeals heard oral arguments on ExxonMobil’s appeal of a decision holding it accountable for 16,386 days of violation of the Clean Air Act at its Baytown, Texas, oil refinery and chemical plant complex.

The company’s lawyers don’t deny that ExxonMobil violated the law. Instead, they claim the citizen plaintiffs don’t have standing to enforce the Clean Air Act in court.

“ExxonMobil is asking the appellate court to ignore decades of court decisions affirming the right of citizens who live next to industrial facilities and breathe their illegal pollution to insist, simply, that these facilities obey the law,” explained NELC Senior Attorney Josh Kratka.

A decision on Exxon’s appeal is expected sometime in early 2019.