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Dague v. Burlington, City of

Citation: 21 ELR 21133
No. No. 90-7544, 935 F.2d 1343/33 ERC 1559/(2d Cir., 06/12/1991) Aff'd

The court holds that the district court properly found that Burlington, Vermont, violated prohibitions under the Resource Conservation and Recovery Act (RCRA) against open dumping procedures, operated a landfill that presented an imminent and substantial endangerment to public health or the environment, and discharged pollutants from a point source into waters of the United States in violation of the Federal Water Pollution Control Act (FWPCA). The court holds that the plaintiffs adequately complied with RCRA's citizen suit notice requirements. Even though U.S. Supreme Court precedent favors a strict application of RCRA's notice requirement, rigid adherence in a case involving hazardous wastes would be inappropriate. The court holds that there was no need to observe the FWPCA's 60-day notice requirement because the FWPCA claim was brought as part of a hybrid complaint, which simultaneously alleged hazardous waste violations under RCRA. The court holds that the district court's conclusion that a railroad culvert was a point source from which pollutants were discharged is consistent with the broad reach of the FWPCA. The court holds that the evidence presented at trial supports the district court's conclusion that the landfill may present an imminent and substantial endangerment to health or the environment. The landfill was leaking into the soil, groundwater, and surface waters hazardous chemicals and compounds found on the Environmental Protection Agency's toxic list. The court also holds that the district court did not abuse its discretion in awarding attorneys fees of more than $ 200,000 and expenses of more than $ 10,000.

[Prior decisions in this case are published at 20 ELR 21001 and 21012.]

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

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

Before Newman and Griesa, JJ.