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Dague v. Burlington, City of

Citation: 20 ELR 21001
No. No. 85-269, 732 F. Supp. 458/30 ERC 1815/(D. Vt., 10/16/1989) Liability

The court holds that a city is liable, as an owner and operator of a disposal facility under the Resource Conservation and Recovery Act (RCRA), for creating an imminent and substantial danger by discharging hazardous leachate from its landfill. First, the court holds that the city is not liable for violations of RCRA's permit and notification requirements, since the state has an authorized program and does not require the city to obtain a federal permit or to provide notice for its preenactment activities. The court also holds that the city is not liable under § 4005 for generating methane gas unsafely or for contaminating an underground drinking water source beyond the boundaries of the landfill. However, the court holds that the city is liable under § 4005 for open dumping, since the city is discharging pollutants into U.S. waters in violation of the Federal Water Pollution Control Act (FWPCA). Additionally, the court holds that the city is liable under RCRA § 7002, as the owner and operator of a disposal facility, since the landfill may present an imminent and substantial endangerment to the public's health and the environment. The court also holds that the city is liable for operating a landfill without a permit as required by the FWPCA. Finally, the court holds that the city is liable for violating state groundwater protection laws. The court orders the city to close the landfill and to pay plaintiffs' court costs and attorneys fees.

[A subsequent decision in this case is published at 20 ELR 21012.]

Counsel for Plaintiffs
William W. Pearson
Downs, Rachlin & Martin
199 Main St., Courthouse Plaza, P.O. Box 190, Burlington VT 05402-0190
(802) 863-2375

Counsel for Defendant
Michael B. Clapp
Dinse, Erdmann & Clapp
209 Battery St., P.O. Box 988, Burlington VT 05402
(802) 864-5751