Leachate from the Casella Waste Systems landfill in Bethlehem, N.H., contaminated the neighboring Ammonoosuc River.

BETHLEHEM, N.H.—On a steep, wooded river bank in this northern New Hampshire community, there is a disturbing and discordant sight: a 370-foot-long channel, filled with bright orange muck, works its way down the slope and empties into the otherwise pristine Ammonoosuc River. This unpermitted “drainage channel” is the subject of an NELC Clean Water Act lawsuit, filed against Casella Waste Systems, Inc., and its subsidiary, North Country Environmental Services, on behalf of Community Action Works (formerly Toxics Action Center) and the Conservation Law Foundation (CLF).

The lawsuit originally alleged that the drainage channel is a “point source,” filled with emerging groundwater carrying excessive levels of iron, manganese, 1,4-dioxane (a probable human carcinogen), and other pollutants generated by Casella’s solid waste landfill. The discharge of these pollutants from the drainage channel into the Ammonoosuc is illegal, the suit alleges, because Casella has not applied for or obtained a CWA permit that would regulate it.

Now, a new ruling from the U.S. Supreme Court in the case of County of Maui v. Hawaii Wildlife Fund [see related story on page 2] has potentially broadened the scope of Casella’s liability.

Casella has recently begun claiming that the drainage channel is itself a “water of the United States” protected by the CWA—and that, consequently, it cannot be considered a “point source” of pollution subject to permitting.

In response, NELC attorneys filed a motion on July 15 seeking permission from the court to add an alternative claim for liability in the event that the judge agrees with Casella that the drainage channel is itself a water of the United States.

In that circumstance, under the holding of the Maui case, Casella would still be liable for discharging pollutants from a point source—the landfill— without a permit if, as the new claim alleges, the short stretch of groundwater carrying these pollutants is the “functional equivalent” of a direct discharge from the landfill to the drainage channel (and then to the river). In other words, if a pipe from the landfill to the channel carried the same pollutants, it would need a permit to do so.

A ruling on the motion to amend is expected shortly.

Meanwhile, U.S. District Judge Paul Barbadoro issued a ruling on June 18 that sharply limits the ability of Casella’s attorneys to question witnesses on topics that are irrelevant to the issue of whether Casella has violated the CWA. Such questioning, the judge ruled, would infringe on the political organizing and free speech rights of Action Works and CLF members and staff—rights that are protected by the First Amendment.

As a result, Casella will not be able to force witnesses to “name names” of Bethlehem residents who have worked to block Casella’s efforts to expand the landfill and keep importing waste into New Hampshire.