Fall 2021: Vol. 23, No. 3

NELC’s case against New Hampshire landfill heads for trial

CONCORD, N.H.—On Aug. 11, after six months of briefings and a two-hour oral argument, U.S. District Court Judge Paul Barbadoro issued a written opinion setting the stage for a trial to determine whether the Clean Water Act’s (CWA) permitting requirements govern the discharge of landfill-related pollutants into New Hampshire’s Ammonoosuc River. 

NELC attorneys filed the long-running case in May 2018 on behalf of two non-profit environmental groups—the Toxics Action Center (now Community Action Works) and the Conservation Law Foundation—against North Country Environmental Services and its corporate parent, Casella Waste Systems. Together, the companies own and operate a large municipal waste landfill in Bethlehem, N.H., which began as an unlined landfill but is now underlain by a plastic liner.

The companies fought the case every step of the way. Initially, they asked the judge to dismiss the case entirely, arguing that the underground flow of pollutants from a landfill site is exempt from the CWA. Judge Barbadoro denied that motion, noting that NELC attorneys had presented evidence demonstrating that the underground pollutant flow actually enters the water via a small above-ground conveyance known as the Drainage Channel.

In 2019, the companies requested that the judge stay the case to await a ruling by the Supreme Court as to whether pollutant discharges that reach surface waters through groundwater can be subject to the CWA. In 2020, when the Supreme Court ruled in the affirmative, Judge Barbadoro reopened the case. Undeterred, the companies then argued that the Drainage Channel is a naturally occurring tributary of the Ammonoosuc and thus not a “point source” of pollutants according to the CWA. 

In December, the companies filed a motion for summary judgement asking the court to rule in their favor as a matter of law, eliminating the need for trial. NELC attorneys followed suit in February. After several rounds of written briefing, Judge Barbadoro heard oral arguments on May 15.

In August, the judge rejected the companies’ argument, writing that, “the water feeding the Channel is contaminated with … pollutants as a result of landfilling activities, and it, therefore, meets the definition of landfill wastewater.” 

The question now is whether the Drainage Channel is a “waste treatment system” according to the CWA. If so, then it is subject to the statute’s permitting requirements. “[A]s defendants boasted to [the state environmental agency] on several occasions,” the judge noted, “[their] reconstruction of the Channel … sought to encourage the natural treatment of iron and manganese before they reach the river, which suggests that it was designed to treat those pollutants.”

Nonetheless, Judge Barbadoro dec-lined to rule without giving the defendants the opportunity to address the issue at trial.

No trial date has been set.

Ahead of trial, PennEnvironment and Clean Air Council move for ruling against U.S. Steel 

PITTSBURGH—NELC attorneys recently filed a motion in federal court on behalf of PennEnvironment and Clean Air Council, arguing that U.S. Steel violated the Clean Air Act (CAA) more than 12,000 times at its three Pittsburgh-area plants, including Clairton Coke Works, the largest coke oven facility in North America. The groups are asking the court to hold U.S. Steel accountable for violations of the CAA occurring after the company’s pollution controls were offline for more than 100 days, from Christmas Eve 2018 until the following spring, and then again that June 

This summer, the environmental groups filed a motion for “summary judgment,” seeking a ruling before trial that U.S. Steel committed more than 12,000 separate violations of numerous permit requirements that are designed to protect public health. U.S. Steel simultaneously filed its own motion for summary judgment, asking the court to rule before trial that an outside monitor is not needed to overhaul operations at the company’s facilities. 

If U.S. Steel prevails in these motions, the suit will progress to an extensive trial where all parties will put in evidence and argue their respective cases. On the other hand, if the environmental groups prevail in these motions, the case will still progress to a trial, but that trial will be limited to deciding what remedy is appropriate in light of the violations that occurred. The groups believe that the appropriate remedy in this case includes payment of a substantial civil penalty and appointment of an outside monitor to oversee environmental compliance at the company. 

Going into the summary judgment stage, the environmental groups believe that the evidence strongly supports their position. “The proof is in the pudding—and in this case, the pudding is U.S. Steel’s own official statements and monitoring records. These documents prove the company violated its CAA permits many thousands of times when it decided to run its plants without essential pollution controls required by its permits,” said Ashleigh Deemer, the deputy director for PennEnvironment. 

Co-plaintiff Allegheny County Health Authority is also seeking summary judgment on these violations. 

The parties will all submit one last set of briefs to the court making their final written arguments in support of their respective motions. The parties will then make oral arguments at a hearing before the court. After the judge issues his opinion on the various motions, the parties will begin preparing for trial. 

Waste reduction: A critical goal 

BOSTON—Landfills threaten our planet in various ways. Municipal waste occupies dwindling landfill space, leeches toxicants into the environment, and actively contributes to global warming by releasing methane, a greenhouse gas over 26 times more potent than carbon dioxide, through anaerobic decomposition. In fact, the U.S. Environmental Protection Agency estimates that municipal waste landfills collectively release methane with a greenhouse gas impact equal to 25,000 metric tons of carbon dioxide annually. 

To address the problems posed by landfills, environmental groups and environmentalists are making progress toward zero-waste solutions. Thanks to their work with elected officials, local and state environmental protection departments, and community members, real change is happening. To minimize the waste reaching incinerators and landfills, communities across the country have pushed for legislation to establish recycling programs, require paper bags to replace plastic bags, and create curbside compost collection programs. 

NELC works closely with other groups and individuals to monitor landfill activities and hold waste disposal corporations accountable when they break environmental laws. We are honored to be a part of the movements to reduce waste and prevent it from harming the environment and public health.