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O'LEARY v. MOYER'S LANDFILL

January 13, 1988

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



The opinion of the court was delivered by: POLLAK

 Joanne R. Denworth, Esq., the court-appointed Receiver of Moyer's Landfill, a hazardous waste site located in Lower Providence Township, Montgomery County, Pennsylvania, is responsible for supervising cleanup of that site pursuant to a Consent Decree entered on July 16, 1982. Receiver Denworth now moves the court to join as defendants in this action the United States Environmental Protection Agency (EPA) and a class of transporters and generators of the waste deposited at the landfill, and to enforce the 1982 Consent Decree. For the reasons that follow, EPA will be joined as a defendant in this action, the companies allegedly responsible for generating and transporting waste will not be joined, and the Consent Decree will be enforced in part in order to ensure that existing financial obligations that were to be paid under the Consent Decree are satisfied. In all other respects, this court defers to EPA to plan, implement and fund the cleanup at Moyer's Landfill.

 A group of citizens filed the complaint in this case on October 3, 1980, under 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 1979, 42 U.S.C. 6901 et seq. ("RCRA"), as well as under the statutory and common law of Pennsylvania. Plaintiffs sought the cleanup of Moyer's Landfill, which had for many years been a site for the disposal of waste, including solid waste and hazardous waste. Contaminated water, known as leachate, had been seeping from the landfill into nearby Skippack Creek, polluting the water supply of the landfill's residential neighbors. Trash and odors at the landfill were inadequately contained.

 At the time the plaintiffs filed their complaint, the citizen-suit provisions of the Clean Water Act and RCRA did not allow for suits against transporters and generators of waste. Plaintiffs therefore sued Moyer's Landfill, Inc., and Paul Lanigan and Howard Moyer, Jr., owners and operators of the landfill site. *fn1" Following a bench trial, I found defendants to be in violation of the Clean Water Act and RCRA, directed defendants to repair existing leachate collection facilities, and directed the parties to submit a proposed further Order outlining measures to stop leachate leakage from the landfill. O'Leary v. Moyer's Landfill, 523 F. Supp. 642, 659 (E.D. Pa. 1981).

 By Order dated July 16, 1982, I entered a Consent Decree. The Decree provided for the appointment of a Receiver to take possession of the assets of the landfill and those of its owners and operators. It awarded judgment, to be paid out of those assets, against the landfill owners and operators, and in favor of the private plaintiffs and DER, *fn2" for the amount necessary to close the landfill in the manner specified in the Consent Decree and accompanying Final Closure Plan. The Final Closure Plan outlines a program for leachate management, limited additional waste disposal, ground water and gas monitoring, and, as the highest remedial priorities, grading, cover and revegetation of the landfill site. The Decree specifies that certain obligations, such as the Receiver's own fee, her counsel's fees, authorized expenses of the receivership, and private plaintiffs' counsel's fees, were to be satisfied from the landfill assets.

 As envisioned in the Decree, the assets of the landfill included proceeds from continued but limited waste disposal at the site, and from commercial extraction of landfill gases. Regarding gas extraction, the Decree provides:

 
The parties have agreed to and the Court has approved the terms of a gas lease . . . for the commercial extraction of landfill gases from the landfill. . . . The Receiver shall receive all revenue due . . . under the gas lease . . . . The Receiver shall enforce the terms of the gas lease, and otherwise act for lessors in making any determinations necessary under the terms and conditions of the gas lease, until the Court shall otherwise order.

 Consent Decree, para. 14. Because of uncertainty at the time the Decree was entered regarding the practicability of gas recovery, the gas lease appended to the Decree contained two conditions:

 
(1) that site does in fact contain sufficient landfill gas of appropriate quality and quantity in order to be considered commercially exploitable;
 
(2) that all of the necessary permits for gas exploitation have been obtained.

 If either condition is not met, the lease agreement provides for its own termination. See Landfill Gas Lease, para. 1(b)-2, Exhibit C to Consent Decree.

 The Superfund Amendments and Reauthorization Act of 1986, Pub. Law 99-499, 100 Stat. 1613 (SARA), which is now part of CERCLA as currently codified, further modifies and funds EPA's action under CERCLA. Those amendments also contain a citizen-suit provision.

 In September 1983, almost two years after the judgment and more than a year after I entered the Consent Decree in this case, EPA listed Moyer's Landfill on its National Priority List pursuant to regulations enacted under CERCLA and referred to as the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). 48 Fed. Reg. 40658, 40672 (September 8, 1983). Soon thereafter, EPA began to investigate the site to determine appropriate remedial action through a Remedial Investigation/ Feasibility Study (RI/FS) process, which requires public participation.

 The Receiver had meanwhile proceeded to do her work as required under the Consent Decree and accompanying Closure Plan. This work has included preparation of a plan for closure and some site work to cover, grade and re-vegetate exposed areas of the landfill, design of leachate collection systems, preparation for leachate treatment including conducting treatability studies and applying to DER for a permit to allow leachate treatment at the landfill site, and development of a plan for methane gas recovery. During the period when EPA was conducting its RI/FS and inviting public participation, the Receiver developed and submitted a remedial plan consistent with her obligations under the Consent Decree.

 Pursuant to its obligation under the NCP to involve the public in the RI/FS process, EPA notified several of the transporters and generators of landfill waste (PRPs) *fn3" that EPA had begun to study remedial alternatives. Some of the PRPs formed a committee to negotiate with EPA regarding cleanup of the landfill. Lengthy negotiations took place between the PRPs and EPA, with the participation of the Receiver and DER.

 When EPA concluded its RI/FS, it issued a Record of Decision (ROD) on September 30, 1985, setting forth its evaluation of various remedial alternatives. The ROD lists the data received by EPA for feasibility and cost-effectiveness. It then presents its choice of a preferred remedy and one alternative remedy, as follows:

 
Description of the Selected Remedy :
 
After careful review and consideration of site areas identified in the Remedial Investigation which warrant remedial action, and of all alternatives developed by EPA in the Feasibility Study and the alternative developed by the site receiver in the Addendum to the Feasibility Study, the site receiver's methane gas generation/recovery alternative can be implemented at the Moyer Landfill Site. This phased alternative will meet the Superfund goals of minimizing present and future migration of hazardous substances and protect human health and the environment, while also attaining all applicable and relevant Federal public health and environmental standards, guidances and advisories at the point of closure (10 to 20 years).
 
- Soil cover with a permeability of 10/10 cm/sec
 
- Erosion and sedimentation control measures
 
- Surface water diversion
 
- Leachate collection, treatment and discharge
 
- Methane gas recovery and sale
 
- Security/fencing measures
 
- Ground water monitoring
 
- All closure activities in compliance with RCRA at the conclusion of gas generation phase (10 to 20 years).
 
This alternative contemplates broad remedial work and its implementation will depend upon the success of the gas generation/recovery program and the contributions from generators and other potentially responsible parties (PRPs). If negotiations with the PRPs fail and/or the methane gas alternative fails, EPA and PADER [Pennsylvania Department of Environmental Resources] recommend Remedial Action Alternative 4.2. This alternative is the cost-effective remedy and will satisfy as well all of the contamination and migration objectives identified in the Remedial Investigation.

 Specifically this option proposes:

 
- Miscellaneous work preparatory to installations of RCRA cap: grading, flattening of steep slopes, retaining walls and installations of rip-rap at areas that are most likely to be eroded.
 
- Gas venting and gas monitoring.
 
- Surface water collection and discharge to Skippack Creek.
 
- Leachate collection and treatment that will meet the 10 risk level in the ground water and discharge ...

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