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O'Leary v. Moyer's Landfill, Inc.

ELR Citation: 11 ELR 21005
Nos. No. 80-3849, 516 F. Supp. 517/20 ERC 1318/(E.D. Pa., 06/09/1981) Liability

Rejecting procedural challenges to a citizen suit, the court rules that leachate emanating from a landfill constitutes an unauthorized point source discharge in violation of the Federal Water Pollution Control Act (FWPCA) and the Resource Conservation and Recovery Act (RCRA). Initially, the court refuses to defer jurisdiction to the Pennsylvania Department of Environmental Regulation (DER) under the doctrine of "primary jurisdiction." Next the court rules that the complaint adequately alleges pollution from a "point source" within the meaning of the FWPCA. Although the landfill is neither directly adjacent nor connected to the creek by a pipe or tributary, there is no requirement that a point source be directly adjacent to the waters it pollutes. The court dismisses DER as a defendant since §505 of the FWPCA authorizes citizen suits only against those alleged to be "in violation" of the Act's limitations, or against the Environmental Protection Agency (EPA) upon its failure to perform a non-discretionary act. Under RCRA, the court holds that the state's failure to establish a timetable for the landfill to achieve compliance with the Act's open dumping prohibition does not preclude commencement of a citizen suit under §7002 to enforce the ban. In addition, the court rules that the complaint's failure to provide 60 days' notice, as required by RCRA's citizen suit provision was remedied by a subsequent pleading. On the merits, the court finds that the landfill's discharges of pollutants constitute unauthorized point source discharges in violation of §§301(a) and 502(14) of the FWPCA and also violate EPA's open dump criteria under RCRA. Moreover, the presence of carcinogens in the leachate establishes that the landfill is a hazardous waste disposal site, for which notice has not been given to EPA or the state as required by §3010 of RCRA. On the other hand, a non-point source violation of EPA's RCRA regulations is not demonstrated since no applicable water quality management plan under §208 of the FWPCA is shown. The court also finds no violation of RCRA regulations requiring periodic application of cover material. Finally, the court rejects plaintiffs' public and private nuisance and negligence claims under the Pennsylvania Clean Streams Law and the Solid Waste Management Act for failure to show special injury, substantial diminishment of plaintiffs' use and enjoyment of their land, or actual injury. The court enjoins defendant from allowing leachate to escape the boundaries of the landfill, directs it to repair its leachate collection system, and requires submission of a proposed order detailing steps to halt permanently the escape of leachate from the landfill.

Counsel for Plaintiffs
Joseph M. Donley, Robert Hernan
Cohen, Shapiro, Polisher, Shiekman & Cohen
22d Floor, Philadelphia Sav. Fund Bldg., 12 S. 12th St., Philadelphia PA 19107
(215) 922-1300

Counsel for Defendants
Bradford F. Whitman, Jonathan L. Braff
Dechert, Price & Rhoads
3400 Center Sq. W., 1500 Market St., Philadelphia PA 19102
(215) 972-3400