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June 9, 1981

Thomas and Carol O'Leary, et al.
Moyer's Landfill, Inc., et al.

The opinion of the court was delivered by: POLLAK


Plaintiffs are several residents and community organizations of Lower Providence Township, Montgomery County, Pennsylvania. Defendants are Moyer's Landfill, Inc., a landfill in Lower Providence Township at which extensive waste-disposal activities have been carried on for many years; and Paul Lanigan and Howard Moyer, Jr., current owners and operators of the landfill. At the outset of the lawsuit, the Pennsylvania Department of Environmental Resources (DER) was also a defendant. The lawsuit, which complains of the assertedly detrimental impact of the waste-disposal activities on the surrounding area, was brought pursuant to (1) the citizen suit provisions of the Federal Water Pollution Control Act, as amended, 33 U.S.C. § 1251, et seq, (the "Clean Water Act"), and of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901, et seq, ("RCRA"); and (2) the Pennsylvania Clean Streams Law, 35 P.S. § 691.1 et seq, the Pennsylvania Solid Waste Management Act, Act of July 7, 1980, Act No. 1980-97, and Pennsylvania's common law of nuisance and negligence. *fn1"

Specifically, the complaint alleges the landfill's responsibility for: (1) the discharge of lactate, i.e., contaminated liquid, into nearby Skippack Creek; (2) the contamination of water used by the landfill's neighbors for drinking and other purposes; (3) the release of malodors and loose trash; and (4) the illegal inclusion of toxic wastes among the waste materials accepted for disposal.

 On December 23, 1980 ruling from the bench granted DER's motion to dismiss and denied the motion to dismiss of the other defendants. On February 2, 1981 gain ruling from the bench after consideration of further submissions by the parties on the viability of the allegations under RCRA, I denied the defendants' motion to dismiss that claim. Plaintiffs' requests for preliminary and permanent injunctions against defendants' waste-disposal activities were consolidated, and I thereafter heard some six days of testimony.

 The first part of this Opinion recapitulates and summarizes my December 23, 1980 and February 2, 1981 bench rulings. The second and third parts contain my findings of fact and conclusions of law on the application for declaratory and injunctive relief.


 Plaintiffs' claims under the Clean Water Act and RCRA were brought under the "citizen suit" provisions contained in each statute. 33 U.S.C. § 1385; 42 U.S.C. § 6972. In general, these provisions authorize the private enforcement of the statutes' requirements by affected persons against alleged pollutors.

 In particular, the Clean Water Act allows citizen suits against those who violate an effluent standard or limitation effective under the Act. 33 U.S.C. § 1365(a)(1). One such limitation is section 1311(a)'s proscription of "the discharge [into navigable waters of the United States] of any pollutant by any person," unless authorized under the Act. The landfill has no such authority. The term "discharge of a pollutant" is defined as the addition of pollutants to the navigable waters of the United States from a "point source", 33 U.S.C. § 1362(12), which is in turn defined as

 any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged . . . .

 33 U.S.C. § 1362(14). The complaint charges the "discharge" of pollutants from the landfill into the neighboring Skippack Creek.

 Plaintiffs' claims under RCRA were brought under both the "hazardous waste" provisions at Subtitle C (Chapter III), 42 U.S.C. §§ 6921-31, and the "solid waste" provisions at Subtitle D (Chapter IV), 42 U.S.C. §§ 6941, et seq. The complaint sought declaratory judgment and enforcement of RCRA's requirement that notification be given to EPA of the storage or disposal of hazardous - - waste, and enforcement of the proscription of "open dumping" of solid waste.


 1. Motions of the Private Defendants

 The private defendants -- Moyer's, Inc. and its owners -- asked that I not take jurisdiction of the case, and instead, under the doctrine of 'primary jurisdiction,' defer to DER and its expertise in the regulation and management of landfills. Cf. MCI Communications Corp. v. A.T. & T., 496 F.2d 214, 220 (3d Cir. 1974). However, the complaint and the plaintiffs' subsequent pleadings show that this suit was brought in part because DER has, in plaintiffs' view, been ineffective in alleviating the dangers plaintiffs perceive at the landfill. Further, the statutory enforcement schemes before me are not so suffused by technical and policy considerations that my exercise of jurisdiction threatens to disrupt DER's exercise of its authority. Nor are the problems central to this litigation beyond the ordinary competence of a court, especially given the helpful participation as witnesses of experts from the relevant agencies.

 The private defendants also asked to be dismissed on the ground that the complaint inadequately alleged the existence of (1) the pollution's "point sources" and the entry of pollution into "navigable waters," the initial and final locations respectively of the pollution assertedly being discharged from the landfill. The complaint lists (i) the landfill, (ii) the lactate collection tanks and (iii) the lactate by-pass systems, including leaks from those sources, as "points sources." This is more than sufficient to withstand a motion to dismiss. See generally, United States v. Earth Sciences, Inc., 599 F.2d 368 (10th Cir. 1979), United States v. Oxford Royal Mushroom Products, Inc., 487 F.Supp. 852 (E. D.Pa. 1980).

 Private defendants have also argued that the landfill's position not directly adjacent to the Skippack Creek, nor connected to it by a pipe or tributary, renders a discharge into the Creek impossible. The argument is rejected as frivolous; there is no requirement that the point source need be directly adjacent to the waters it pollutes.

 2. Motions of DER

 Plaintiffs asserted that DER was directly responsible for any pollution from the landfill as a result of DER's failure to enforce a May 16, 1972 DER Consent Order requiring the landfill's closure should it be found to be discharging. DER's enforcement failure, plaintiffs argued, "contributes directly" to the alleged pollution.

 This reasoning finds its genesis in Montgomery Environmental Coalition v. Fri, 366 F. Supp. 261, 266-67 (D.C.D.C. 1973):

 [T]he proper inquiry should be into whether any of the defendants individually exercises an authority which directly or indirectly controls the discharge of pollutants . . .

 Id. (emphasis supplied).

 In Fri, Judge John Lewis Smith was of the view that liability under the Clean Water Act was sufficiently pleaded where the defendant state agencies were alleged to have some "authority over enforcement of water quality standards . . . ," id at 267.

 But the Act's grant of citizen suit jurisdiction does not, in my judgment, lend support to a standard so broadly stated. The Act authorizes citizen suits against (1) those alleged to be "in violation" of the Act's limitations, and (2) the Environmental Protection Agency (EPA), through its administrator, upon the EPA's failure to perform a non-discretionary act. 33 U.S.C. § 1365(a). And it may be noted that Judge Smith, at a later stage of Fri, dismissed EPA as a defendant for lack of an allegation of EPA's failure to perform non-discretionary acts. Montgomery Environmental Coalition v. Fri, C.A. No. 1307-73 (D.C.D.C. Dec. 12, 1973) noted at Montgomery Environmental Coalition Citizens Coordinating Committee on Friendship Heights v. Washington Suburban Sanitary Commission, 607 F.2d 378, 380 n.5 (D.C. Cir. 1979). See also Committee for Consideration of the Jones Falls Sewage System v. Train, 387 F. Supp. 526, 529-30 n.3 (D. Md. 1975).

 The ordinary sense of the "in violation" phrase in section 1365(a)(1) connotes defendants who are themselves the instrumentality discharging pollution; the jurisdictional grant does not in terms create responsibility on the part of a regulatory agency charged with the enforcement of standards -- even where the agency decides against enforcement. *fn2" Cf. United States v. Batchelder, 442 U.S. 114 (1979) (broad prosecutorial discretion). But see South Carolina Wildlife Federation v. Alexander, 457 F. Supp. 118, 132-34 (D. S.C. 1978). Compare 33 U.S.C. § 1365(h)(suit by state governor to compel EPA to enforce standards). And, were the EPA liable in every case together with a regulated polluter under section 1364(a)(1), the meaning of section 1365(a)(2) would be eviscerated; for that section authorizes suit against the agency for failure to perform nondiscretionary acts, a notion that loses most of its substance when all enforcement is mandated. Accordingly, the complaint does not state a cause of action against DER, and DER has been dismissed as a party defendant. *fn3"


 The remaining defendants also moved to have the RCRA claims stricken from the complaint. 42 U.S.C. § 6901 et seq. *fn4"

 1. RCRA: Open Dumping Prohibition

 Section 6972 provides the jurisdictional basis for citizen suits:

 Except as provided in subsection (b) or (c) of this section, any person may commence a civil action on his own behalf.

 (1) against any person (including (a) the United States, and (b) any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of any permit, standard, regulation, condition, ...

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