The massive leaking landfill in Southbridge, Mass.

WORCESTER, Mass.—Public records demonstrate that the massive solid waste landfill in the Town of Southbridge, Massachusetts, is leaching hazardous chemicals into groundwater aquifers that supply drinking water to surrounding communities, and that it is discharging many of the same chemicals into nearby wetlands, and thus into a stream and a river system. Dozens of private wells have been rendered unsafe due to the influx of chemicals from the contaminated aquifers.

In June 2017, NELC attorneys filed suit in U.S. District Court against the Town of Southbridge and Casella Waste Systems, the operator of the landfill, on behalf of Environment Massachusetts and Toxics Action Center. The suit alleges that the ongoing discharges to the wetlands violate the federal Clean Water Act, and that the ongoing contamination of the groundwater and wells constitutes an “imminent and substantial endangerment” within the meaning of the federal Resource Conservation and Recovery Act (RCRA). Ninety-nine individual owners of affected drinking water wells, represented by separate counsel, joined in the RCRA claim and also asserted state law claims for compensation and other relief.

In August 2017, the defendants filed motions asking District Court Judge Timothy Hillman to dismiss the CWA and RCRA claims. More than a year later, on Sept. 30, 2018, Judge Hillman issued an order granting these motions and dismissed the case in full. Because that order resolved all claims before the court, the plaintiffs had a clear right to immediately appeal to the 1st U.S. Circuit Court of Appeals. Three days later, however, the judge issued an amended opinion, partially reversing course. The judge announced that he would retain jurisdiction over the state law claims, thus depriving the plaintiffs of the automatic right to appeal the dismissal of the federal claims.

But federal law allows district court judges to certify issues for immediate appeal before a case is fully resolved, and NELC attorneys have asked Judge Hillman to do just that. On Oct. 29, NELC attorneys filed a motion for certification of immediate appeal, citing the provisions of federal rule and statute that contemplate a timely appeal in situations such as this one.

“This is precisely the type of case for which these provisions were written,” said NELC Litigation Director Chuck Caldart. “Moreover, the order of dismissal is clearly wrong on the law.”

In their motion, NELC attorneys noted that the dismissal of the plaintiffs’ RCRA claim was in direct conflict with a well-known 1st Circuit decision that has been cited with approval by other circuit courts of appeal. Judge Hillman dismissed the RCRA claim because the Massachusetts Department of Environmental Protection has issued certain administrative orders against the landfill under state law. RCRA, however, provides that states may bar an “imminent and substantial endangerment” claim only if they file their own RCRA suit or take specified actions under the federal Superfund statute. Massachusetts has taken no such action here.

In a 2011 decision, the 1st Circuit Court of Appeals ruled that it is an error to dismiss an “imminent and substantial endangerment” claim in any other situation. “To abstain in situations other than those identified in the statute,” the 1st Circuit noted, “threatens an end run around RCRA, and would substitute [the court’s] judgment for that of Congress.”

As the federal circuit courts have stressed,” explained Caldart, “Congress created RCRA’s imminent and substantial endangerment provision to provide affected citizens the right to go to federal court to protect their own health from the risks that can be created when solid waste disposal goes awry.