No Damaging or Unsightly Municipal Pollution, Inc. v. King County

No. C82-186V (W.D. Wash. March 26, 1986)

The court holds that the Cedar Hills county landfill in King County, Washington, is in violation of various Resources Conservation and Recovery Act (RCRA) groundwater regulations. In this RCRA suit, the court holds that the landfill is not in violation of RCRA's groundwater regulations with respect to a deep aquifer, but is in violation of the regulations with respect to the shallow aquifers underlying the landfill. The court holds that the landfill is in violation of RCRA regulations because it contains putrescible wastes and is located within 5,000 feet of an airport used only by piston-type aircraft. The putrescible wastes attract birds and this increases the chances of a midair collision between birds and aircraft. The court holds that the landfill's failure to apply a layer of soil over disposed solid waste at the end of each operating day also violates RCRA regulations. The landfill also violated RCRA regulations by discharging pollutants into surface waters which run into navigable waters.

The court next holds that plaintiff has standing to bring this action. Prudential concerns do not bar the action, since plaintiff's members suffered injury-in-fact and plaintiff's claims fall within the scope of interests protected by the statutes invoked. The constitutional requirement is met since plaintiff's members have suffered various aesthetic and economic injuries.

The court concludes that plaintiff is entitled to an order requiring King County to apply full daily cover, to improve the leachate collection system, to monitor groundwater, surface water, and drinking water wells, and to collect and dispose of gas generated at the site.

[The opinions on the award of attorney's fees and costs appear at 16 CLR 21019 and 21021.]

Counsel for Plaintiff
Roger M. Leeds
1411 Fourth Ave., Suite 520, Seattle WA 98101
(206) 382-0217

Counsel for Defendants
Michael Linnabary
King County Prosecutor's Office
W554 King County Cthse., Seattle WA 98104
(206) 583-4437

[16 ELR 21016]

Voorhees, J.:

Findings of Fact and Conclusions of Law

From the credible evidence in this cause the Court now makes the following

Findings of Fact

1. The Cedar Hills landfill is operated by King County, a political subdivision of the State of Washington, on a 920 acre site. The landfill began operating in 1963 after receiving a special use permit from the King County Board of Commissioners in 1960. Cedar Hills landfill is the primary disposal site for non-hazardous solid wastes in King County. It receives most of the solid waste from residential, commercial, and industrial sources in the county. Approximately 6 million tons of solid waste have been received at the site to date.

2. The Cedar Hills landfill is located south of the City of Issaquah and east of the City of Renton. Surface runoff from the site drains north toward Mason Creek, which is located north of the site and is a tributary to Issaquah Creek; east into unnamed streams which flow into Issaquah Creek; and south toward the Cedar River. Some of the surface runoff to the south flows into a small lake which has no outlet and is located on the Queen City Farms property. Issaquah Creek flows into Lake Sammamish, which in turn drains into [16 ELR 21017] Lake Washington. The Cedar River also flows into Lake Washington.

3. On the south, Cedar Hills landfill adjoins a parcel called Queen City Farms, a former hog farm and waste disposal site. On Queen City Farms, there is a lake which receives surface water drainage from Cedar Hills landfill and also a small public airport, Cedar Grove Air Park, which serves piston engine aircraft. The airport, which was opened in 1964, is no more than one-half mile from Cedar Hills landfill. Because of the presence and volume of hazardous wastes that were dumped at the Queen City Farms site over a period of years, that property has been designated by the EPA as a "superfund" site pursuant to Section 109(9) of CERCLA, 42 U.S.C. Section 9601(9). The EPA is currently studying the Queen City Farms site in order to determine the extent of contamination and the remedial actions that might be taken.

4. Cedar Hills landfill is bounded on the north, west, and east by residential property, mostly sparsely developed. All homes in the area, the landfill itself, and the nearby Alcohol Treatment Center depend upon wells for drinking water.

5. Solid waste is brought to Cedar Hills landfill from County owned and operated transfer stations which are open to the public, from two privately owned and operated transfer stations located in Seattle, from private haulers who collect from homes and businesses and from certain institutional customers, such as the University of Washington. Cedar Hills landfill is not open to the general public. The solid waste from transfer stations is transported in large tractor-trailer vehicles which are specially designed to unload or be unloaded at the working face of the landfill. The landfill currently receives between 2,000 and 3,000 tons per day, approximately 800,000 tons a year.

6. In addition to general municipal refuse from the transfer stations, a relatively small portion of the waste transported to Cedar Hills consists of various kinds of special waste such as deal laboratory animals from the University of Washington, spoiled food, bagged asbestos and some liquid wastes such as sour milk. These types of waste are reviewed by the toxic materials division of the Seattle King County Health Department for suitability of disposal at municipal landfills prior to their disposal. These wastes, as well as ordinary household and business wastes, may contain chemicals which are listed as hazardous but which may be deposited at a general purpose waste disposal facility so long as the amount of such chemical is less than the weight thresholds established in Chapter 173-303 WAC and 40 CFR part 261. These regulations prescribe the allowable quantities of otherwise hazardous waste which can be taken to a municipal waste disposal facility.

7. During the late 1960's and early 1970's some liquid industrial wastes, including paint waste and pesticides, were deposited in unlined ponds at the south end of Cedar Hills landfill. These ponds were later emptied and filled with soil. In the mid-1970's paint wastes were hauled to Cedar Hills approximately twice a month. Cedar Hills landfill has also received sludge from a Metro sewage treatment plant. That sludge was deposited in three ponds known as the Metro sludge ponds.

8. After the solid waste is received at Cedar Hills landfill, it is compacted by compactors and then some or all of it is covered at the end of each working day with six inches of compacted soil which has been excavated from the site. This covering is referred to as daily cover. King County is working towards achieving full daily cover no later than January 1, 1987, but is not consistently applying full daily cover at the present time nor has it done so in the past. Currently, Cedar Hills is allowed to have uncovered areas of solid waste at the end of working day pursuant to cover formula approved by the Seattle-King County Department of Public Health. In addition to daily cover, when an area is to be unused for a long period of time, good landfill practice requires that eighteen or more inches of compacted soil be applied as intermediate cover. When an area is no longer to be used for depositing waste, good landfill practice requires the application of two or more feet of compacted soil and the seeding of that soil. Currently, intermediate cover is not always applied at the Cedar Hills landfill. Rather, intermediate cover is omitted and final cover is applied from June to September.

9. Cover serves several purposes at a landfill including improved appearance, reduction in "disease vectors" (insects and rodents), minimization of odor, reduction in leachate and reduction in number of birds. Leachate is water that has percolated through solid waste and become contaminated with constituents from the solid waste.

10. The soil beneath the Cedar Hills site includes relatively impermeable glacial till and more permeable sands and gravels, called glacial outwash deposits. The till overlays the outwash deposits and is up to 75 feet thick in places. The till has been removed in the area known as the Central Pit area. The Central Pit area has not yet been used for solid waste disposal. It will be lined with an impermeable synthetic membrane and will have underdrains installed before it is put to use. The Central Pit will be the first area at Cedar Hills landfill to have an artificial membrane liner placed beneath the disposal area before waste is deposited.

11. Leachate at Cedar Hills landfill is produced by rainfall since surface water does not flow through the site. Cedar Hills landfill is in a high rainfall zone. The compacting and covering of solid waste are the principal means of reducing the production of leachate at a solid waste landfill such as Cedar Hills. The compaction of the waste on a daily basis is important in reducing the production of leachate because it is difficult to use low permeability cover materials during periods of wet weather.

12. A leachate collection system was installed at Cedar Hills during the late 1970's and early 1980's to collect leachate from the solid waste areas and to pump it to the Metro sewage treatment plant. The collection system consists of a system of drains, trenches, curtains and collection pipes designed to catch leachate both as it drains downward through the solid waste and as it moves horizontally through the solid waste.

13. If leachate is not contained, it may enter both surface and ground water. The avenues to surface water are weeps, ditches and drainage courses leading from the solid waste area towards streams and lakes. The potential avenue to ground water is through permeable soils overlying the ground water table. Soils through which leachate moves have a capacity to attenuate contaminants.

14. At Cedar Hills the relatively impermeable till is underlain by more permeable outwash deposits. The outwash deposits contain a complex network of scattered water-bearing zones at various depths. At an elevation of approximately 300 feet above sea level there is a significant water-bearing zone or aquifer. This zone is tapped by the production well used at the site, the well used by the Alcoholic Treatment Center, and by a majority of the drinking water wells in the area. The till is the primary barrier between leachate and the more permeable outwash deposits lying beneath the till.

15. In the early 1970's the Cedar Hills landfill was found to be causing pollution of Mason Creek, which is located north of the landfill property. The Washington Department of Ecology ordered the County to install a leachate collection system to deal with the problem of leachate escaping the Cedar Hills site. The initialphases of the leachate collection system were completed about 1981. Further expansion has occurred since. At present the system consists of a line of 8 to 10 inch, unperforated pipe encircling the entire landfill site. This pipe is gravity fed by perforated pipes laid in and near the solid waste. The leachate, so collected, is pumped by a network of four pump stations to two lagoons, one of which is equipped to aerate the leachate before it is pumped through a pipeline to the Municipality of Metropolitan Seattle (Metro) Renton treatment plant.

16. In 1977 the Washington Department of Ecology issued the Cedar Hills landfill a waste discharge permit for discharges to surface runoff and ground water. The permit, which is still in effect, requires the County to do certain water quality monitoring at the Cedar Hills site. The Department of Ecology periodically performs its own monitoring of surface water at the Cedar Hills landfill. In addition to the water quality monitoring that has been required by the Department of Ecology, King County has installed a network of ground water quality monitoring wells at the site. All surface and ground water quality monitoring data are provided to the Washington Department of Ecology and the Seattle-King County Department of Public Health.

17. The Court is unable to make a finding as to how much of the generated leachate is collected by the leachate collection system. The system undoubtedly collects substantial amounts, but not all, of the generated leachate. In 1984 the system pumped an estimated 296,000 gallons of liquid per day. The volume of generated leachate is related to the volume of rainfall and to the quantity of solid waste which is exposed to infiltration by the rainfall.

[16 ELR 21018]

18. The Seattle-King County Department of Public Health and the Department of Ecology have directed King County to achieve full daily cover at Cedar Hills landfill by the beginning of 1987, and the County has committed itself to attaining that goal. Because of inadequate levels of equipment, inadequate levels of personnel and equipment breakdowns King County has not consistently complied with the cover formulas established by the King County Department of Public Health.

19. Plaintiff claims that the Cedar Hills landfill is in violation of the RCRA regulations relative to ground water. Those regulations are found at 40 CFR 257.3-4. In order for the Court to find that the Cedar Hills landfill was in violation of the ground water regulations, the Court must make each of the following findings:

(1) That the operation of the Cedar Hills landfill has caused a substance to be introduced into an aquifer.

(2) That the aquifer was beyond the outermost perimeter of the solid waste as it would exist at completion of the disposal activity.

(3) That the aquifer was one which was capable of yielding to wells or springs usable quantities of drinking water for human consumption.

(4) That the introduction of that substance caused its concentration in the aquifer to exceed the maximum contaminant level for that substance as specified in Appendix I of 40 CFR Part 257.

20. The Court finds that there is not a single, shallow aquifer underlying or adjacent to the Cedar Hills landfill. There appears rather to be a number of discontinuous bodies of ground water at shallow depths. There appears to be a single, deep aquifer.

21. The Court is persuaded by the credible evidence in this cause that the Cedar Hills landfill has not been in violation of 40 CFR 257.3-4 with respect to the deep ground water aquifer. This finding is borne out by the testing in early 1984 by the United States Environmental Protection Agency of water from domestic wells within a 3.2 mile radius of Queen City Farms. The screening of forty six wells and the further testing of twelve of those forty six indicated that iron, manganese and zinc were present in significant concentrations, but the report concluded that the presence of those metals in the drinking water samples could not be attributed to any unnatural contamination source.

22. With respect to the shallow aquifers underlying the Cedar Hills landfill, the Court finds that the Cedar Hills landfill has been in violation of 40 CFR 257.3-4.

23. Plaintiff claims that the Cedar Hills landfill is in violation of 40 CFR 257.3-8 in that it is located within 5,000 feet of an airport runway used only by piston-type aircraft and that it is a facility where putrescible wastes are deposited.

24. The regulations define "putrescible wastes" as being solid waste which contains organic matter capable of being decomposed by microorganisms and being of such a character and proportion as to be capable of attracting or providing food for birds.

25. The Court finds that putrescible wastes are regularly transported to and deposited at the Cedar Hills landfill.

26. The Court further finds that within 5,000 feet of the landfill there is the Cedar Grove Air Park, which has a runway used only by piston-type aircraft.

27. The Court finds that the depositing of the putrescible wastes increases the likelihood of collisions between birds and aircraft that may cause damage to the aircraft or injury to its occupants.

28. Plaintiff claims that the Cedar Hills landfill is in violation of 40 CFR 257.3-6 in that on-site population of disease vectors has not been minimized through the application and compaction of soil over disposed solid waste at the end of each operating day.

29. Despite repeated efforts by the King County Health Department to secure more daily cover, King County has failed to comply consistently with the formulas for cover which the Health Department has established. This has been because King County has not devoted sufficient resources to that effort in terms of manpower and equipment. In addition there has been an unacceptably high percentage of down time of the equipment needed to accomplish daily cover. King County has also failed to apply intermediate cover to those areas which are awaiting final cover.

30. Because of the failure to provide full daily cover the Court finds that the Cedar Hills landfill has been in violation of 40 CFR 257.3-6.

31. Plaintiff claims that the Cedar Hills landfill has violated 40 CFR 257.3-3 by the discharge of pollutants into waters of the United States, as those waters are defined in 33 CFR 323.2.

32. The Court finds that Cedar Hills landfill is in fact periodically discharging pollutants into surface waters which find their way by way of Issaquah Creek and the Cedar River into waters of the United States.

33. Defendants have challenged the standing of plaintiff to bring this action. The doctrine of standing imposes upon litigants both judicially self-imposed limits, often referred to as prudential limitations, and constitutional limitations. One prudential limitation is a prohibition against one litigant assering the legal rights of another. Another prudential limitation is the requirement that a plaintiff's claim fall within the zone of interests protected by the law which the plaintiff invokes. The constitutional limitation, deriving from the "case or controversy" requirement of Article III, requires that a plaintiff show a personal injury fairly traceable to the defendant's conduct and which is likely to be redressed by the requested relief. Allen v. Wright, U.S. , 82 L. Ed. 2d 556, 569 (1984).

34. The Court finds that the prudential limitations do not bar the plaintiff from bringing this action. First, as a voluntary membership organization, plaintiff may bring this action on behalf of its members so long as at least one of its members has suffered an "injury in fact." Hunt v. Washington Apple Advertising Commission, 432 U.S. 333, 393 (1977); Warth v. Seldin, 422 U.S. 490, 511 (1975). There was evidence in this case that more than one of plaintiff's members did in fact sustain injury by reason of defendants' activities. Second, the Court finds that plaintiff's claims do fall within the zone of interests protected by the statutes invoked by plaintiff. The purpose of those statutes is to protect the environmental resources which are claimed to be threatened by the Cedar Hills landfill.

35. The Court finds that plaintiff is also not barred by the constitutional limitation. Standing is not confined to those who have suffered economic harm. Injuries to aesthetic and environmental interests also provide standing. United States v. SCRAP, 412 U.S. 669, 686 [3 ELR 20536] (1973); Sierra Club v. Morton, 405 U.S. 727, 734 [2 ELR 20192] (1971). The Court finds that there are members of the plaintiff organization who have suffered injuries of various kinds. The value of their properties has been adversely affected, they have been assailed by noxious odors and flocks of bird, and their surface waters have been contaminated. These injuries are sufficient to give to plaintiff standing to bring this action.

36. Although it does not appear that the deep ground water aquifer has yet been adversely impacted by the operation of the Cedar Hills landfill, the Court finds that there is a real threat that that aquifer may become impacted if effective steps are not taken by King County in the near future to avert that threat. The greatest protection to the deep water aquifer is the layer of unweathered glacial till which underlies the site. That layer is, however, quite thin at the northerly end of the site. In addition excavations at the site have removed much of the protective till in some areas and may have removed all of that layer at other places. Moreover, there appears to be an accumulation of leachate in the solid waste area, the tendency of which is to drive leachate downward through the till into the deep water aquifer. The tendency of this accumulation of leachate to force leachate through the till is intensified by the gas which is being generated in the waste. The leachate and the gas act together to drive the leachate downward through the till and into the underlying deep water aquifer.

37. The only source of drinking water in the area is the deep water aquifer so that the invasion of that aquifer by leachate would have a devastating effect upon the neighboring homeowners who must depend upon that aquifer for their potable drinking water.

38. Through the years of the operation of the Cedar Hills landfill, there has not been a systematic monitoring of the effect of that operation upon ground waters. Many water samples have been tested, but there has not been a program of periodic sampling for the same set of contaminants. In consequence, it is difficult to determine from the available data whether, and to what extent, there has been any trend with respect to any particular contaminant. There is needed at the site an established regular monitoring program of ground and surface waters.

39. Although the operation of the Cedar Hills landfill has had an adverse impact upon surface waters and upon shallow ground [16 ELR 21019] waters and threatens to have an adverse impact upon the deep aquifer underlying the site, the operation of the landfill does not presently pose a threat to the health of those who live in its vicinity. The closing of the site would, by contrast, create monumental health problems in King County.

From the foregoing Findings of Fact the Court now draws the following

Conclusions of Law

1. Plaintiff is entitled to an order requiring King County to apply full daily cover at the earliest date that the necessary equipment can be purchased or rented and the necessary manpower can be employed for that purpose. In light of the prolonged and unavailing efforts of the Washington State Department of Ecology and of the King County Department of Health to achieve full daily cover at the Cedar Hills landfill, it is not acceptable that King County defer the achievement of full daily cover until January 1, 1987.

2. Plaintiff is also entitled to an order requiring King County to apply intermediate cover at the earliest date that the necessary equipment can be purchased or rented and the necessary manpower can be employed for that purpose. It is not acceptable to have an area lie without intermediate cover between the time that solid waste is no longer being deposited at that location and the time that final cover is applied.

3. Plaintiff is entitled in addition to an order requiring King County to do the following:

(1) To improve the leachate collection system at Cedar Hills in order that the system will more effectively collect and dispose of the leachate generated at that landfill.

(2) To provide for the periodic monitoring of the deep and shallow ground water at the site.

(3) To provide for the periodic monitoring of the surface water leaving the site.

(4) To provide for the periodic monitoring of a selected number of the wells which provide drinking water near the site.

(5) To provide for the collection and disposal of the gas generated at the site.

4. For lack of expertise the Court is unable to specify the actions which must be taken by King County in order to accomplish each of the foregoing objectives. A report, dated December 31, 1985, has, however, been submitted to King County by the consulting firm of Sweet, Edwards & Associates, Inc. That report describes in detail the problems that the consulting firm has observed at the Cedar Hills site with respect to leachate generation, collection and disposition, with respect to gas generation, collection, and disposition, and with respect to the monitoring of ground and surface water. Plaintiff is entitled to an order requiring King County to attack the problems outlined in that report and to plan for and to take action upon the solution of those problems as expeditiously as the necessary planning will permit.

5. The Court should retain jurisdiction of this matter and should require King County to report every sixty days as to the steps taken by it to comply with the order of the Court.

The Clerk of this Court is instructed to send uncertified copies of these Findings of Fact and Conclusions of Law to all counsel of record.

Order

Having heretofore entered its Findings of Fact and Conclusions of Law the Court now enters the following order.

IT IS ORDERED that defendant King County apply full daily cover at the Cedar Hills landfill at the earliest date that the necessary equipment can be purchased or rented and the necessary manpower can be employed for that purpose, and

IT IS FURTHER ORDERED that defendant King County apply intermediate cover at the Cedar Hills landfill at the earliest date that the necessary equipment can be purchased or rented and the necessary manpower can be employed for that purpose, and

IT IS FURTHER ORDERED that defendant King County:

(1) Take steps to improve the leachate collection system at Cedar Hills landfill in order to minimize the escape of leachate from the site.

(2) Provide for the periodic monitoring of the deep and shallow ground water at the site for 40 CFR Part 257 Appendix I contaminants.

(3) Provide for the periodic monitoring of the surface water, leaving the site for 40 CFR Part 257 Appendix I contaminants.

(4) Provide for the periodic monitoring of a selected number of the wells which provide drinking water near the site for 40 CFR Part 257 Appendix I contaminants.

(5) Provide for the collection and disposal of the gas generated at the site, and

IT IS FURTHER ORDERED that defendant King County attack those problems, described in the December 31, 1985, report of Sweet, Edwards & Associates, Inc., which threaten to cause violation of 40 CFR Part 257, and that defendant King County take effective action upon those problems as expenditiously as the necessary planning will permit.

The Court will retain jurisdiction of this matter, and until further order of this Court defendant King County shall report to this Court at sixty day intervals the steps it has taken to comply with the terms of this order. A copy of the report shall be served upon plaintiff's counsel and the original and one copy filed with the Clerk of this Court.

The Clerk of this Court is instructed to send uncertified copies of this order to all counsel of record.