The opinion of the court was delivered by: Block, District Judge.
DECISION, ORDER AND CERTIFICATION
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
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
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.
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
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
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
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.
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:
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.
As for the high HRS score, Maher believed that it was simply a
preliminary score "based upon unsubstantiated information." Tr.
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.
The location of all the old and new wells and their relative
proximities to the landfill and the pond is graphically depicted
attached reproduction of Exhibit I-1 (Addendum A). As shown
therein, the old upgradient wells, designated UGW, were located
due north of the landfill; the new wells, designated MW-1, MW-2,
MW-3 and MW-4, were all in close proximity to the landfill, as
were the old wells in that location, and the only wells near the
pond were three old wells, designated WW (fifty-five feet), WM
(thirty feet) and WE (nine feet), lying only about 150 feet
north of the pond.
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
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.
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.
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
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.
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 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
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 WITNESS: The sinking Plume.
THE COURT: The sinking Plume sinks the
THE COURT: And that's based primarily on the
W-9 well that's the data that you use to support
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, ...