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March 15, 2001


The opinion of the court was delivered by: Block, District Judge.



Plaintiffs, a group of individuals residing in the immediate vicinity of the former Holtsville Landfill (the "landfill") located in the southwest portion of the Town of Brookhaven, New York ("Town"), have brought this action against the Town alleging violations of two federal environmental statutes, the Resource Conservation and Recovery Act of 1976 ("RCRA") and the Federal Water Pollution Control Act of 1972 ("Clean Water Act" or "CWA"). Their claims are based upon their contention that the landfill has contaminated a creek and pond abutting or in close proximity to their homes. They also allege certain New York State statutory and common law claims as a consequence of such contamination. Plaintiffs seek remediation, compensatory damages, civil penalties and attorney's fees.

The parties stipulated that the trial would be bifurcated. The first phase would resolve liability under the federal claims. If the Town prevailed, plaintiffs agreed to discontinue their state law claims. If plaintiffs were successful, the second phase would resolve the state law claims, in addition to addressing remedies for the federal violations.*fn1 The federal liability claims thereafter were tried before the Court without a jury.*fn2 Pursuant to Federal Rule of Civil Procedure 52(a), the following constitutes the Court's findings of fact and conclusions of law. As gleaned therefrom, the Town is not liable under the Clean Water Act, but is responsible under RCRA for contaminating the creek and pond because it contributed to the disposal of solid waste which presents an imminent and substantial endangerment to the environment. The case will accordingly proceed to the second phase.


I. The Old Town Landfill

Although the record does not precisely trace the history of the landfill, it appears that for some indeterminate period prior to 1937 the property was owned by New York State and used as an open dump for burning garbage. See Ex. 27 at 4-1.*fn3 Thereafter, the Town began acquiring the property and it became the proverbial town dump. In 1968 it was converted by the New York State Environmental Facilities Corporation ("EFC") to a forty-acre sanitary landfill with septage lagoons. See id.; Ex. 33 at 4-1. In 1974 the landfill was closed by EFC and transformed into Town recreational facilities. See Ex. 27 at 4-1, 4-5.*fn4

James Heil ("Heil"), EFC's project manager at the time of the closing of the landfill, testified for the Town that the landfill was closed by first covering it with "sand or material" and then applying "another 18 inches to two feet" of "loam," which was "sort of a tight soil," as a "final cover." Tr. at 875.*fn5 It was not lined. See Ex. 33 at 4-1. Moreover, it "d[id] not contain a leachate collection system." Id.

Although the Town did not maintain records documenting the types or quantities of materials it allowed to be deposited in the landfill, it was "always easily accessible for disposal of industrial waste." Ex. 27 at 4-1. Heil, who prior to becoming the project manager for EFC had inspected the landfill during the late 1960s when employed by the Suffolk County Department of Health Services ("SCDHS"), candidly told the Court that "[t]here [was] no restriction as to what could be dumped into the landfill." Tr. at 902. As he stated, it had been "an open landfill for years and anybody [could] dump anything in it." Tr. at 902-03. Given his personal familiarity with the dump, Heil characterized its contents as "municipal solid waste," id., meaning "solid waste garbage, refuse, yard waste, construction demolition debris, sludges, originating from residential and commercial establishments within a municipality." Tr. at 890. This was confirmed by James Lapienski ("Lapienski"), a former employee of the Town who was employed as a bulldozer operator at the landfill in the mid-1960s. He observed at that time household garbage, televisions, old boats, trees, automotive parts, batteries, tires and sludge being dumped, most of which was brought to the landfill by municipal and private carting firms. See Tr. of Lapienski Dep. at 8-14.*fn6

II. The Pond and Creek

Approximately 2,500 feet south of the landfill, and about 1,000 feet south of Woodside Avenue, lies Motts Pond. See Ex. I-1.*fn7 It was characterized by the Town's witness, David Tonjes ("Tonjes"), a Town engineer since 1992, as basically a "still body of water." Tr. at 685. Tonjes explained that although there is an "intermittent stream" feeding into the pond from the north, this stream had "very little flow," Tr. at 686, and that "Motts Pond appears to be fed by groundwater" coming from "the shallow groundwater system surrounding the pond." Tr. at 573. Michael Veraldi ("Veraldi"), the plaintiffs' expert witness, opined that groundwater migrates "underneath the landfill and does not surface to become a surface body of water until it gets to Motts Pond." Tr. at 236. Tonjes described the pond as "perhaps 300 feet long, approximately fifty feet wide." Tr. at 573. Although Tonjes placed its depth at one location as "approximately one foot," Tr. at 573, Veraldi reported from his review of certain records that the pond "can be as deep as nine feet in the center." Tr. at 235. Veraldi explained that there is a large "well defined stream continually running from th[e] pond," Tr. at 686, sometimes referred to as Motts Creek, leading to Canaan Lake, a large navigable body of water. See Tr. at 42, 50. The creek is a tributary of Canaan Lake. See Ex. 27 at 4-6 ("[t]he closest surface water downgradient of the Holtsville Landfill is an unnamed tributary of [C]anaan Lake"); Ex. 33 at 3-20 ("[t]he most prominent surface water feature in the study is an unnamed creek which originates in the southeast corner of the former landfill, flows in a southeasterly direction and discharges into Canaan Lake").*fn8 Motts Creek was described by one of the plaintiffs, Harold Liles ("Liles"), who has lived by it since 1974, as being fifteen-to-seventeen-feet wide, about two-to-three feet deep, and running about 1,500 feet from the pond to the mouth of Canaan Lake. See Tr. at 423-24, 428-29.

Liles characterized the creek at the time he bought his home in 1974 as a pristine "babbling brook," Tr. at 421, and as "clear as glass." Tr. at 425. Rowboats, canoes and paddle boats went up and down the creek. See Tr. at 425. However, it started turning grey in the mid-1980s, and thereafter turned "pure orange." Tr. at 426. He described the mouth of Canaan Lake as grayish and a wildlife "dead zone." Tr. at 426. Another plaintiff, Linda McKibbin, who has lived near the creek since 1987, rendered comparable testimony, describing the pond and creek as "murky" as of that year, and by 1994 looking "like tomato soup before you whisked it." Tr. at 489-90. Plaintiff Thomas Aiello ("Aiello"), who lived next to the pond beginning in 1967, testified that it looked at that time "like a country brook," supporting "[a]ll kinds" of wildlife, "catfish, rabbits, ducks, even raccoons, black snakes." Tr. at 372-73. He believed that the color of the pond started to turn a "golden rusty" color during the mid-1970s, but became extremely visible by 1993. Tr. at 380; see Tr. at 377, 391-92. Veraldi described the condition of Motts Pond and Motts Creek as of 1996, when he was retained by plaintiffs, as a "toxic soup," devoid of any life. Tr. at 43-44. An aerial photograph of the pond and part of the creek taken sometime after February 1996, see Tr. 39-40, poignantly depicts that they had turned a deep orange hue. See Ex. 95.*fn9 Tonjes described the color of the pond and creek as "unlike any I have ever seen elsewhere." Tr. at 549.

There is evidence in the record of culverts*fn10 on the north and south ends of the pond. Veraldi testified that a culvert on the south end of the pond was "located directly on the outflow of the pond," Tr. at 302, and "flows from the southern part of the creek in a southeasterly direction." Tr. at 329. Plaintiff Christine McGinnis ("McGinnis") confirmed that there is "some kind of outflow pipe in the: southern part of the pond . . . some type of a pipe or a culvert," describing it both as "a little cement thing" and as "a metal tube that's under the ground." Tr. at 463-64. She explained that water coming from the pond "goes into the pipe, and then you can go to the other side of the property where it comes out of the tube." Tr. at 464-65. McGinnis described the water as being the same color as the water in the pond. Tr. at 465.

In respect to the intermittent stream on the north side of the pond, plaintiff Philip Paul testified as follows:

[T]here's two culvert pipes that go underneath Woodside Avenue which feed this stream which feed my pond . . . and there's the two culvert pipes there and the spring that feeds the culvert pipes, and there's orange, it's the same orange sediments and contamination coming into the culvert pipes flowing underneath and coming out on the south side of Woodside Avenue.

Tr. at 942.

During a site inspection by the Court on March 26, 1998, in the presence of counsel, the Court observed a culvert pipe underneath Woodside Avenue. It did not, however, examine whether there were culvert pipes at the south end of the pond, but has no reason to disbelieve McGinnis's testimony, which stands uncontroverted. The Court also observed during this site inspection a number of modest homes juxtaposed to the pond, compatible with plaintiffs' apparent working-class income levels. For example, plaintiff Joseph Lauricella is a retired Long Island Railroad conductor, see Tr. at 437, plaintiff Michael Josiah is a technical service manager for a recycling company, see Tr. at 406, and Aiello had retired as an assistant director and coordinator of federally funded youth programs for the Suffolk County Labor Department. See Tr. at 371-72.*fn11

III. The Phase I Report

A report prepared for the New York State Department of Environmental Conservation ("DEC") by EA Science and Technology ("EA Science"), partially entitled "Engineering Investigations at Inactive Hazardous Waste Sites, Phase 1 Investigation, Holtsville Landfill," dated June 1987, traces the history to that date of governmental interventions subsequent to the closing of the landfill. See Ex. 27 at 4-2 to 4-3. Initially, in 1979 the SCDHS sampled "the stream downgradient of the landfill" because of "concerns over red staining in the stream." Id. at 4-2. The sample results are unknown, and nothing further was done until 1982 when some dead fish were found in Canaan Lake. Id. Consequently, in that year, the DEC surveyed the lake and "noted that the stream had a high specific conductance and dense populations of iron-fixing bacteria." Id. As a result of this survey the DEC determined that "the Town had caused the discharge of leachate into a stream without a valid [State Pollutant Discharge Elimination System ("SPDES")] permit," and in August 1983 issued a Consent Order requiring the Town "to study the leachate problem." Id. at 4-3. The Consent Order contained a Compliance Schedule requiring that by October 1, 1983 the Town "shall have submitted an engineering report on the leachate plume and remediation." Ex. 12, Schedule A; Ex. 27 at App. 1. 1-12, Schedule A. In August 1986, the DEC met with the Town and was told that "no engineering report had been produced." Ex. 27 at 4-3. Presumably as a consequence of the Town's recalcitrance, EA Science was commissioned by the DEC to do a Phase I investigation.

The goal of the Phase I investigation was to

(1) obtain available records on the site history from the state, federal, county, and local agencies; (2) obtain information on site topography, geology, local surface water and ground-water use, previous contamination assessments, and local demographics; (3) interview site owners, operators, and other groups or individuals knowledgeable of site operations; (4) conduct a site inspection to observe current conditions, and (5) prepare a Phase I report.

Id. at 2-1. The Phase I report was to include "a Hazard Ranking Score ["HRS"] and an assessment of the available information." Id.

EA Science issued its Phase I report in June 1987. See Ex. 27 ("Phase I report"). It noted that sometime in 1982 the Town had installed three groundwater monitoring well clusters down-gradient of the landfill, consisting of a total of seven wells. See id. at 4-4 & App. 1.1 — 17. In 1983, it installed three additional clusters, up-gradient of the landfill, comprising nine wells. Id. at 4-4 & App. 1.1-18. The clusters contained shallow, intermediate and deep wells, ranging from nine- to 100-feet deep. Id. Analyzing data from these wells, EA Science concluded that "[c]hemical analysis performed on the water samples consistently confirm a release to ground water of iron, manganese, ammonia, and magnesium," id. at 4-11, and that "[t]he detected concentrations of these contaminants in samples from the downgradient wells were at least 10 times greater than the detected concentrations in samples collected from the background (upgradient) wells." Id. at p. 2 of section entitled "Documentation Records For Hazard Ranking System" (following p. 5-1). EA Science also reported that several samples of surface water collected at the mouth of the pond by SCDHS personnel in 1985 "contained iron."*fn12 Id. at 4-13. The SCDHS observed at that time "that the stream banks were stained and the water was murky orange." Id. at 4-11.

As required by the Phase I investigation, EA Science was to arrive at an HRS from all the available data. Veraldi explained that "[t]he hazardous ranking score is a numerical number that is assigned to a landfill to determine its potential hazard condition to the environment and/or health of the surrounding community," Tr. at 17, and if the HRS was "above 28.5" the site would qualify "for listing as a hazardous waste site." Tr. at 28-29. EA Science arrived at an HRS of 42.24. See Ex. 27, Figures 1-10 (following p. 5-1).

Given this high HRS, and its assessment of available information, EA Science made a preliminary determination that the landfill was a potential hazardous waste site. See id. section (unnumbered) entitled "Potential Hazardous Waste Site Preliminary Assessment." It drew on a report by the Environmental Protection Agency ("EPA") that characterized the nature of the hazard as "[p]otential ground-water and surface water contamination," and the description of the substances possibly responsible for the contamination as "[h]ousehold and commercial garbage, septic sludges from residential, commercial, and industrial sources." Id. at 2 (unnumbered). EA Science concluded that "[t]he existing data are adequate to confirm a release of contaminants (iron and manganese) from the Holtsville Landfill to the ground water," but that "surface water quality data are reportedly inconclusive and there have been no documented hazardous wastes released." Ex. 27 at 6-1. Accordingly, it made the following recommendation:

It is recommended that the next step involve a complete characterization of the ground-water contamination (including potential organic compounds) and the horizontal and vertical extent of this contamination. Also, further evaluation of potential surface water contamination should be performed. This is beyond the scope of a Phase II program. Therefore, performance of a Phase II investigation is not recommended for this site.

Id. at 1-2.

In 1984, shortly after the Town entered into the 1983 Consent Order, it hired Dvirka & Bartilucci ("D & B") as its consulting engineering firm. See Tr. at 772-73. The Town had engaged D & B in an "openended" contract to perform services on an as-needed basis, Tr. at 773; see Tr. at 772, 775, and D & B considered the Town to be a "good ongoing client." Tr. at 799. Notwithstanding the Phase I report's recommendation, D & B apparently prevailed upon the DEC to permit it to conduct a Phase II investigation, and a further Consent Order, to this effect, was entered into between the Town and DEC in 1987. See Ex. J; Tr. at 534-35.

In a memorandum dated May 11, 1988, sent by Thomas Maher ("Maher"), D & B's project director for the Phase II study, to the Commissioner of the Town's Department of Waste Management, see Ex. 34; Tr. at 728, 786-87, Maher had informed the Town:

Because of the documented release of contaminants to the groundwater (ten times above background for some of the inorganic chemicals monitored) the site has an HRS score of [4]2.24, well above the threshold of [28.5] to be considered a potential hazard by DEC. Because of the documented release of contaminants, the consultant who prepared the Phase I Investigation Report (Final, June 1987) recommends a complete characterization of contaminants, and definition of the horizontal and vertical extent of the plume (RI/FS) which is beyond the scope of a Phase II Investigation.

Tr. at 788. "RI/FS" is the abbreviation for "remedial investigation/feasibility study." See Tr. at 781.

Maher testified under cross-examination by plaintiffs' counsel that he conferred with the Town regarding whether to conduct a Phase II investigation or to undertake the RI/FS recommended by EA Science, and that "cost was a consideration and was discussed with the Town." Tr. at 783; see Tr. at 788. Maher estimated the cost for a Phase II study to be approximately $250,000, versus $750,000 to $850,000 for an RI/FS. Tr. at 784, 798-99. He further explained that although the Town could possibly receive seventy five percent reimbursement from New York State for an RI/FS study, the Town would not be eligible for such funds unless it accepted the designation of the landfill as a potential hazardous waste site, which it was unwilling to do because of the "stigma." Tr. at 793; see Tr. at 789-793.

In contrast to the recommended RI/FS, Maher explained that "the focus of a phase two investigation is to document if there's been a release from a source before you start placing additional wells or doing additional investigation further down gradient or off the site." Tr. at 743. As he elaborated:

A phase two investigation is really to primarily focus on what you think or anybody thinks is the source of contamination. If it's been established that there has been a significant release, then the next sequence of events would — to go off site to determine what it could impact and how significant the impact would be.

Tr. at 747.

As for the high HRS score, Maher believed that it was simply a preliminary score "based upon unsubstantiated information." Tr. at 29.

IV. The Phase II Report

D & B's Phase II report, dated January 1992, was not issued until five years after the second Consent Order. See Ex. 33 ("Phase II report"). Apparently based in large measure on the Phase II report, the DEC did not require the more detailed RI/FS recommended by EA Science in the Phase I report, and the landfill was not classified as a hazardous waste site. See Tr. at 758-59. Curiously, D & B recalculated the HRS to be 27.3, just under the minimum score for a hazardous waste site listing. Ex. 33 at 5-1. As Veraldi opined in that regard, an HRS "can be manipulated in a variety of ways that would involve perhaps sampling at different locations, perhaps sampling on certain days of low rainfall, a variety of factors can affect that hazardous ranking score." Tr, at 99.

The Phase II investigation principally relied on some surface water testing of the pond, reassessment of the data from the existing wells, and evaluation of new data from four clusters of state-of-the-art polyvinylchloride ("PVC") wells D & B caused to be installed just below the landfill, next to the old down-gradient wells in that location. See Tr. at 741-746. These new wells were designed to enhance test accuracy since the old wells were made from either iron or steel and the DEC "do[es] not recognize iron or steel wells for hazardous waste investigations." Tr. at 742.

From all the data collected, Maher acknowledged that the Phase II investigation confirmed that "the landfill is a source of contamination." Tr. at 756. Nonetheless, he "did not consider the release of contaminants to be a significant threat to health and the environment," Tr. at 754-55, although he acknowledged that the discoloration of the pond was "not a good situation." Tr. at 812. Consequently, Maher did not believe that new tests of the old W wells were indicated, let alone the installation of new improved PVC wells near the pond. As Maher testified in response to the Court's questioning:

THE COURT: But you did come to the conclusion that there was a release from the landfill, if I understand this case correctly, but nonetheless, you decided that you would not put in new PVC wells down by the W wells, that were either lead or iron.
You know that I was going to ask that question because I focused a lot of my questioning to Mr. Tonjes about that. And I'm anxious to get a sense of this, since we're talking about the decisions you made in terms of the numerosity of the wells and the placing of the wells.
THE WITNESS: The reason we didn't do any further investigation off site, and when I say off site groundwater investigation, because we did take a took at the stream and the creek and the pond, was because in our opinion there was not a significant release of contamination and more important, not a significant threat to health and the environment, and that's as defined by the super fund program.
THE COURT: Notwithstanding the obvious discoloration of the bodies of water that you're talking about here?
THE WITNESS: Well, again, we had some information on the characteristics of the Plume. We didn't feel in large part that the body of the Plume was impacting that water; that there could be other sources of contamination and, therefore, that the landfill was not a significant threat to health and the environment, that was our opinion.

Tr. at 743-44.

Specifically, Maher believed the following two factors supported his opinions: (1) that runoff water from the construction of Woodside Avenue in 1976, residential construction and residential septic tanks, as well as a certain marshy area, could have been contributing to the contamination of the pond and creek, see Tr. at 729-31, 735; (2) that "it did not appear that the main body of the Plume was being intercepted by the creek or the pond; that it was flowing beneath it, and therefore, no additional investigation in our opinion was required." Tr. at 759.

In respect to the possible "other sources" for the contamination of Motts Pond and Motts Creek, Veraldi rendered convincing and credible testimony when questioned about this aspect of the Phase II report:

Q. I'm, going to read you one part of the phase two report, it's on page 1-4.
"Although these contaminants could result from landfill Leachate, some or all could also originate from other sources such as a marsh immediately south of the landfill, storm waters run off and onsite waste water disposal systems, as well as naturally occurring contaminants such as Iron."

Do you agree with that statement?

A. Well, I also read that statement and when we did our walk through, there is in this area, just north of Woodside Avenue, what could be described as a small marsh area. This is a living, thriving community. The water is clear, it does not have an orange pigmentation to it, so I think that rules out this marsh area as a potential source of the contaminant.
As far as residential contamination sources, I don't see any reason that Iron would be a contaminated source from residential use. And don't find that at all consistent with what we found.
The residential area along the' northern part of Canaan Lake, which is certainly more densely populated, does not show effects that are described along Motts Pond. This here is all pristine and there's certainly a more dense population in this area than this area here.

Tr. at 62-63.

In addition, Veraldi noted that a cemetery near the landfill was not "in the direct line of the groundwater." Tr. at 150. Furthermore, despite suggesting that runoff water or residential septic tanks could have been contributing factors in contamination of the pond and creek, see Tr. at 729-30, Maher acknowledged when questioned by the Court that D & B did not conduct any testing to determine whether residential sanitary systems and stormwater runoff were in fact contributing to the contamination. See Tr. at 821-25, 829830.

As for whether the underground leachate plume could intercept the surface waters of the pond and creek, Tonjes provided critical testimony. First, he acknowledged that "[t]he chemistry of the pond is very similar to that of the Leachate Plume," although septic systems have a similar chemistry, Tr. at 556-57, and that the leachate plume "was definitely coming from the landfill." Tr, at 567. He could not conclude, however, that the landfill was the cause of the contamination because "there's no mechanism — there's no evidence for a mechanism to get the contamination from deep in the aquifer all of a sudden rising very suddenly into the pond." Tr. at 569. In that respect, Tonjes testified that the data collected from the new wells, which as previously noted were in close proximity to the landfill rather than to the pond and creek, showed "the Leachate Plume is sinking slightly in the aquifer as it moves from the landfill, and so that by the time that the Plume reaches the W set of wells located just north of the pond . . . there appears to be a small ledge or a small slice of relatively uncontaminated groundwater, so that there's essentially uncontaminated groundwater and then the contamination." Tr. at 555. Specifically, the shallowest well closest to the pond, the old W-9 well, which was approximately ten-feet deep in the aquifer, showed "little to no contamination," in Tonjes's opinion. Tr. at 558. By contrast, the old W wells thirty-to-fifty-feet deep in the aquifer showed "high levels of contamination at or about the place where the chemistry of the pond, so to speak, leaves something to be desired." Tr. at 568.

Initially, Tonjes stated that "[i]t is true that if there were a hydraulic, an obvious hydraulic connection between the Plume and the contamination in the pond, there would be no dispute about the source of contamination." Tr. at 690. His testimony continued in that vein, as follows:

THE COURT: By hydraulic connection you mean that it's not sinking, that there's a connection?
THE WITNESS: A physical connection between the Plume and the contamination in the pond.
THE COURT: And that's what you say is missing here, this hydraulic connection as you phrase it?
THE WITNESS: That is, it's a necessary component to make the link between the Plume and the contamination.
THE COURT: I'm coming from the landfill, everything seems to be flowing a certain direction. These wells, the samples, the MW's we've been through all of that. We know what the lay of the land is.
So we come down to this W-9 well . . . and that seems to be a matter of great significance . . . that because [] that W9 well supports your conclusion, together with perhaps other observations or other factors, that this Plume is sinking, it's going to the bottom of the drink so to speak, and that's the hydraulic issue, I think that's what you mean.
If it wasn't sinking, you then have perhaps a different opinion, but the fact that it is sinking firms up your belief as an expert that you can't or I cannot, I guess, the fact-finder, make the requisite linkage between the conditions in the pond that ha[ve] been testified to, and the Leachate Plume that is emanating from the landfill.

Now, am I on the same page here or not?

THE WITNESS: Yes, your honor.

THE COURT: All right.

THE WITNESS: The sinking Plume.

THE COURT: The sinking Plume sinks the plaintiffs lawsuit?

THE WITNESS: Yes, sir.

THE COURT: And that's based primarily on the W-9 well that's the data that you use to support that?
THE WITNESS: It's the only appropriate point to make that judgment, yes, sir. There is no other source of data.
THE COURT: [] But what is consistent, it seems to me, is the chemistry of the pond and the chemistry of the stream, both apparently leading into the pond and emanating from the pond, going into the I guess the head water of the — maybe not the head water, ...

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