Petition for Writ of Certiorari — Burlington v. Dague

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Bupreme Court, U.S.

1-810 4) FILED

NOV 18 joo; |

No.

ee Oe

In The

Supreme Court of the United States

October Term, 1991

CITY OF BURLINGTON,

Petitioner,

ERNEST DAGUE, SR., ERNEST DAGUE, JR.,

BETTY DAGUE, AND ROSE A. BESSETTE,

Respondents.

Petition For Writ Of Certiorari To The

United States Court Of Appeals

For The Second Circuit

PETITION FOR WRIT OF CERTIORARI AND

APPENDIX, VOLUME I, PAGES 1-117

Rosert R. McKEearin Micuaet B. CLapp

Freperick S. Lane III Dinse, ERDMANN & CLapp

Dinse, ERDMANN & CLaprp 209 Battery Street

Burlington, Vermont Burlington, VT 05402-0998

Of Counsel (802) 864-5751

Counsel of Record

for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-4964

OR CALL COLLECT (402) 342-2831

II.

III.

QUESTIONS PRESENTED

Does the failure of environmental citizen suit plain-

tiffs to comply strictly with statutory pre-suit notice

and delay requirements applicable to their actions

require dismissal on either jurisdictional or pro-

cedural grounds?

May a district court in a citizen suit action award a

fully compensatory and enhanced attorney’s fee

where a citizen suit plaintiff obtains no relief or

nominal relief?

Does §1311(a) of the Clean Water Act regulate the

passage of previously polluted water through a dis-

cernable, confined and discrete conveyance?

TABLE OF CONTENTS

GERD CMIGGD COON occ ccvccccvccetéesscunen

oe errr rec

CONSTITUTIONAL AND STATUTORY PROVI-

SIT COTE 0 6c ccnscccsccensewecenenmeniee

REASONS FOR GRANTING CERTIORARI .........

THE CIRCUIT COURTS ARE IN HOPELESS

DISARRAY ON THE ISSUE OF HOW THE

NOTICE AND DELAY REQUIREMENTS

COMMON TO FEDERAL ENVIRONMENTAL

CITIZEN SUIT ACTIONS ARE TO BE

APPLIED BY THE FEDERAL COURTS. THE

OPINION OF THIS COURT IN HALLSTROM

V. TILLAMOOK COUNTY, DESIGNED TO

BRING ORDER AND UNIFORMITY TO THIS

ISSUE, HAS BEEN SO LIMITED BY THE SEC-

OND CIRCUIT IN THIS CASE AS TO REN-

DER THAT DECISION USELESS AS A

MEANS OF RESOLVING THE CONBPLICT. ..

THE OPINION IN THIS CASE DEMON-

STRATES AND REFLECTS CONTINUED

CONFUSION AND INCONSISTENCY

AMONG THE FEDERAL COURTS RESPECT-

ING THE APPLICATION OF FEE-SHIFTING

STATUTES UNDER FEDERAL LAW, BOTH

AS TO WHEN A FEE AWARD CAN BE

ORDERED AND AS TO THE LIMITS OF A

COURT’S DISCRETION IN DETERMINING

THE AMOUNT OF FEE AWARD...........

III.

TABLE OF CONTENTS - Continued

Page

THE DECISION IN THIS CASE CREATES A

SPLIT AMONG THE CIRCUIT COURTS

REGARDING THE SCOPE OF THE REGULA-

TORY SCHEME ADOPTED BY CONGRESS

IN THE CLEAN WATER ACT...............

Eee e eed assccccescccccccscccccee

TABLE OF AUTHORITIES

Page

Cases

Cheng Fan Kwok v. INS, 392 U.S. 206 (1968) ......... 18

City of Highland Park v. Train, 519 F.2d 681 (7th Cir.

1975), cert. denied, 424 U.S. 927 (1976)............. 14

Coleman v. Turner, 838 F.2d 1004 (8th Cir. 1988)...... 24

Estate of Farrar v. Cain and Hobby, 941 F.2d 1311

I I ee Be Se os Ba 13, 24

Flast v. Cohen, 392 U.S. 83 (1968).............0....... 17

Garcia v. Cecos Intern., Inc., 761 F.2d 76 (1st Cir.

SRR RE Reig Pe ee OE 8 AS) SE 14

Garner v. Wal-Mart Stores, Inc., 807 F.2d 1536 (11th

nh 24

Gwaltney of Smithfield v. Chesapeake Bay Foundation,

ee fF FC en ean ee 17

Hallstrom v. Tillamook County, 493 U.S. 20 (1989) ... . passim

Healy v. Ratta, 292 U.S. 263 (1934)...............044. 18

Hensley v. Eckerhart, 401 U.S. 424 (1982)...... 13, 24, 25

Hewitt v. Helms, 482 U.S. 755 (1987)...... 13, 22, 23, 24

Lattimore v. Oman Construction, 868 F.2d 437, reh.

denied, 875 F.2d 874 (11th Cir. 1989)............... 26

Lockerby v. Phillips, 319 U.S. 182 (1943).............. 18

McKenzie v. Kennickell, 875 F.2d 330, reh. denied, 884

ys oo cea ceee 26

National Environmental Foundation v. ABC Rail

Corp., 926 F.2d 1096 (11th Cir. 1991) ............ 9, 16

TABLE OF AUTHORITIES - Continued

Page

National Wildlife Federation v. Consumers Power Co.,

862 F.2d SE EE WES dc ctdsscecscccncess 27, 29

National Wildlife Federation v. Gorsuch, 693 F.2d 156

Ss GE ME dees vncnccuvcnvecesececescessesees 29

Nephew v. City of Aurora, 830 F.2d 1547 (11th Cir.

1987), cert. denied, 485 U.S. 976 (1988)............. 24

Pennsylvania v. Delaware Valley Citizens Council for

Clean Air, 478 U.S. 546 (1986).............66-e eee 22

Pennsylvania v. Delaware Valley Citizens Council for

Clean Air, 483 U.S. 711 (1987)........ 6.66666 c ee eee 26

Proffitt v. Commissioners, Township of Bristol, 754

so fh Ff fe PPT 15

Pymatuning Water Shed Citizens for a Hygienic Envi-

ronment v. Eaton, 644 F.2d 995 (3d Cir. 1981)...... 15

Rhodes v. Stewart, 488 U.S. 1 (1988)........... 13, 23, 24

Rode v. Dellarciprete, 892 F.2d 1177 (3d Cir. 1990) .... 26

Romero v. International Terminal Operating Company,

Se Se Se ED c vaccccnceccctccesesesscovccces 18

Ruggiero v. Krzeminski, 928 F.2d 558 (2d Cir. 1991) .... 24

Save Our Cumberland Mountains Inc. v. Hodel, 826

F.2d 43 (1987), vacated in part en banc, 857 F.2d

i) fle Pe rrrrriTrrTTTrr ree 26

= v. City of Hillsborough, 862 F.2d 759 (9th

Wi TED oh ccvevenwccsesccecessécncncenctecessoce 24

Sierra Club v. Morton, 405 U.S. 727 (1972) .........-. 18

Sierra Club v. Yeutter, 926 F.2d 429 (5th Cir. 1991).... 16

TABLE OF AUTHORITIES - Continued

Page

Spell v. McDaniel, 824 F.2d 1380 (4th Cir. 1987),

cert. denied sub nom. Fayetteville v. Spell, 484 U.S.

Se Cand tehntehdheossecebecanvasanusecesess 26

State of Missouri ex rel Ashcroft v. Dept. of the Army,

672 F.2d 1297 (8th Cir. 1982)..................055. 29

Student Public Interest Research Group v. AT&T Bell

Laboratories, 842 F.2d 1436 (3d Cir. 1988).......... 26

Texas State Teachers Association v. Garland, 489 US.

REE CE SE NR SS ae 13, 23

U.S. ex rel TVA v. Tennessee Water Quality Control

Board, 717 F.2d 992 (6th Cir. 1983), cert. denied,

se eaees 29

Walls v. Waste Resource Corp., 761 F.2d 311 (6th Cir.

RE NE Pie rg AEE SA SRI Ee OES DR ea 14

Whitmore v. Arkansas, 495 U.S. 149 (1990)............ 17

CONSTITUTION

United States Constitution, Article I, Section 1....... 2

United States Constitution, Article III, Section 1...... 2

United States Constitution, Article III, Section 2...... 2

STATUTES

ecu ace cub ebmanane 2, 6, 7, 12, 28

I i a a 9, 28

| RS ea SyTN 2, 5, 6, 9, 10, 28

dd seein e sees 2, 6, 28

ic ia aye 2, 28

vii

TABLE OF AUTHORITIES - Continued

Page

Ps Mee cccccccccnscosvccscescses 2, 4, 5, 9, 11

GB UBL. GOGGB. 2. cccccccscccccccccccccccsccecesees 22

Ge UR, Be occ ccc cccccrccccccccccccceees 2, 4, 6, 10

i A rer rrr rT rrr rrr rr 2, 7, 10, 11

Oe is SE vc cccccccccccscnccccccccocevecesouess 2

GB UAB, Bec cc ccc ccccccccccccccccccvcess 2, 4, 6, 10

GD UAB Be occ ccc ccccccsccccccccccccess 2, 6, 7, 11

io) ll PPPTTITTTTEr eerie passim

No.

In The

Supreme Court of the United States

October Term, 1991

CITY OF BURLINGTON,

Petitioner,

ERNEST DAGUE, SR., ERNEST DAGUE, JR.,

BETTY DAGUE, AND ROSE A. BESSETTE,

Respondents.

Petition For Writ Of Certiorari To The

United States Court Of Appeals

For The Second Circuit

PETITION FOR WRIT OF CERTIORARI

The City of Burlington respectfully petitions for a

writ of certiorari to review the judgment of the United

States Court of Appeals for the Second Circuit in this

case.

OPINIONS BELOW

The opinion of the court of appeals (App. 1-37) is

reported at 935 F.2d 1343. The opinion of the district court

dated October 16, 1989 (App. 59-115) is reported at 732

F.Supp. 458. The opinion of the district court dated March

15, 1990 (App. 118-129) is reported at 733 FSupp. 23. The

balance of the court of appeals and district court opinions

and orders (App. 38-58, 116-117, 130-146) are not

reported.

JURISDICTION

The opinion of the court of appeals was entered on

June 12, 1991. A timely motion for reargument was

denied on August 20, 1991. (App. 145). The jurisdiction of

this Court is invoked under 28 U.S.C. §1254(1).

CONSTITUTION AND STATUTORY

PROVISIONS INVOLVED

The following constitutional provisions and statutes

are set out verbatim in the Appendix:

United States Constitution

Article 1, Section 1

Article III, Section 1

Article III, Section 2

Sections 301(a), 307, 402, 502, and 505 of the Clean

Water Act (33 U.S.C. §§1311(a), 1317, 1342, 1362, and

1365).

Sections 3002, 3005, 3006, 3008, 3010, 4005 and 7002 of

the Resource Conservation and Recovery Act of 1976 (42

U.S.C. §§6922, 6925, 6926, 6928, 6930, 6945, and 6972).

STATEMENT OF CASE

Starting in the 1950’s and continuing until January 1,

1990, the petitioner, the City of Burlington, Vermont,

(“City”) operated a municipal landfill adjacent to a wet-

land known as the Intervale. The Intervale is bisected by

a railroad embankment. Running through the railroad

embankment is a large stone culvert which connects the

marsh on either side of the embankment. Depending

upon conditions, the waters of the marsh may flow in

either direction through the culvert, but the usual flow

pattern is from south to north. The culvert is separated

from the landfill mass itself by the waters of the marsh

lying south of the railroad embankment, known as the

Beaver Pond.

Leachate is generated within the landfill. Although

the leachate produced in the landfill contains chemicals

and compounds found on toxic and hazardous lists under

RCRA and the CWA, the concentrations of those chemi-

cals and compounds do not exceed state or federal prohi-

bitions. Tests performed on samples of pure leachate

taken from the landfill indicate that it is toxic to a small

fish called the fathead minnow, daphnia (water fleas) and

algae.

Because the landfill is unlined, some of the leachate

escapes the collection system by entering the upper gra-

dients, or “flow tubes”, of groundwater under the land-

fill. The groundwater flows north beyond the landfill

boundary, and the flow tubes of the leachate-contami-

nated groundwater all surface in the Intervale, north of

and within 300 feet of the railroad embankment. Until

late in 1985, leachate would also occasionally emerge

from the sides of the landfill via seeps. From there it

would flow into the Beaver Pond. Any pollutants from

the landfill which might enter the waters of the marsh

have already done so before those waters flow through

the culvert.

In the early 1980’s the State of Vermont began to

scrutinize the landfill closely. In January of 1981 the City

and the state entered into an Assurance of Disconti-

nuance, which was subsequently amended on January 31,

1985 to provide inter alia: (1) for possible operation of the

landfill until January 1, 1990; and (2) a requirement that

the City install a leachate collection system by September

1, 1985, and a methane control system by December 1,

1985. This amended assurance was entered as an order of

the state court, pursuant to Vermont’s Administrative

Procedure Act, on March 7, 1985.

Engineering plans for the leachate and methane systems

were approved by the state in August, 1985. On September 5,

1985, the City advertised for bids for the construction of the

systems. On November 11, 1985, the City entered into a

contract for the construction of the systems, which com-

menced shortly thereafter. The methane gas control system

began operation on December 27, 1985, utilizing temporary

blowers. The leachate collection system, though not yet com-

plete, began operations on January 15, 1986. By March 25,

1986, both systems had been completely installed and were

operational, as designed.

Plaintiffs filed their ten-count complaint and a

motion for a preliminary injunction on October 9, 1985, at

10:00 a.m. Both the complaint and the motion for a pre-

liminary injunction sought immediate closure of the land-

fill among other extensive injunctive relief. The complaint

included inter alia: in Counts I and II, a citizen suit action

pursuant to 42 U.S.C. §6972(a)(1)(A) alleging violations

by the City of 42 U.S.C. §6925 and §6930; in Count III, a

citizen suit action pursuant to 42 U.S.C. §6972(a)(1)(B)

alleging that because of the violations alleged in Counts |

and II, the landfill may present an imminent and substan-

tial endangerment to health or the environment; in Count

IV, a citizen suit action pursuant to 33 U.S.C. §1365 and in

Counts V through X, actions based on alleged violations

of state law. Federal jurisdiction was alleged to exist with

respect to Counts I through III pursuant to 42 U.S.C.

§6972 and with respect to Count IV pursuant to 33 U.S.C.

§1365.' While the complaint invoked those statutes as a

basis for jurisdiction, it did not allege that plaintiffs had

given the pre-suit notice to the EPA administrator, the

state and the City, which those statutes require, nor did it

allege that applicable delay periods had been observed.

Instead, the complaint merely alleged with respect to

each count that since each of the entities had actual or

constructive knowledge of the violations alleged, further

notice by plaintiffs would be meaningless.”

Defendant filed a motion to dismiss for lack of juris-

diction based upon the failure of the plaintiffs to comply

with the notice and delay requirements applicable to their

actions.* The magistrate, to whom the case had been

assigned, reserved decision on the motion to dismiss after

ordering plaintiffs to file a “proper notice”, see docket

' Pendent jurisdiction was alleged with respect to Counts

V through X.

2 See paragraphs 59, 72, 81 and 86 of plaintiffs’ complaint,

App. 244.

3 The motion to dismiss was based on two grounds: (1)

that the plaintiffs had failed to give actual notice, as required,

to the City, the state and the EPA administrator before com-

mencing their actions, and (2) even if notice could be deemed

to have been given by the filing of the complaint, the plaintiffs

could not qualify for exceptions to the delay requirements: (a)

with respect to their RCRA actions, because, as a matter of law,

no action could be maintained for a violation of any provisions

of subchapter III since those provisions had all been super-

seded by Vermont's approved hazardous waste program; or (b)

with respect to the CWA action because, despite plaintiffs’

allegation of violations of 33 U.S.C. §1317, only actions respect-

ing violations of §1317(a) triggered the exception to the delay

period and that section of the statute imposed obligations only

on the EPA administrator, not the City.

4 Thereafter, on November 5, 1985, plaintiffs’ attorney

filed an affidavit (App. 270) indicating that on October 8, the

(Continued on following page)

entry of October 28, 1985 (App. 140), and proceeded with

hearings on plaintiffs’ motion for a preliminary injunction.

The court subsequently denied both the original motion

to dismiss and several reassertions thereof advanced by the

City throughout the period of time that these citizen suit

actions were pending before the district court.

On March 26, 1986, the court issued an order (App.

40) denying the motion for a preliminary injunction, but

ordering the City to install the leachate and methane

systems within 60 days. As previously indicated, supra at

4, the City had already accomplished what the court

ordered before the order issued.5

After a trial by court with respect to Counts I through

V® of the complaint on October 16, 1989, the district court

issued its opinion and order providing:

(Continued from previous page)

day before the complaint was filed, he had placed first class letters

(see copy at App. 273) in the mail addressed to the City, the state,

and the EPA Administrator notifying those parties of alleged viola-

tions of 42 U.S.C. §6925, §6930 and §6945, and violations of 33

U.S.C. §1311, §1317, and §1342. Attached to the affidavit was a

letter dated November 5, 1985 (see copy at App. 275) purporting to

be the supplemental notice ordered by the magistrate. The “sup-

plemental notice” only refers to those statutory violations listed in

the October 8, 1985 letter. At no time have plaintiffs averred or

offered proof that the October 8 letters were delivered before their

complaint was filed. Likewise, the plaintiffs have at no time

averred or offered proof that they notified the City, the state or the

EPA of a claimed “endangerment” as required in connection with

their 42 U.S.C. §6972(a)(1B) action.

° The court of appeals decision erroneously states that the

leachate and methane systems were not installed until after the

March 26, 1986 order, see App. 8 and 20, but see District Court

Opinion of October 16, 1989 (App. 59 at 75) and Affidavit of

Steven Goodkind (App. 277).

* Count V alleges violation of Vermont’s Groundwater

Protection Act.

(1) With respect to Count I, that plaintiffs’ allega-

tions of RCRA subchapter III violations were not action-

able because, pursuant to 42 U.S.C. §6926(b), Vermont's

approved hazardous waste plan operated in lieu of and

superseded the prohibitions contained in subchapter III;

(2) With respect to Count II, that the City had vio-

lated 42 U.S.C. §6945 by (a) generating methane gas in

violation of regulations issued pursuant to subchapter IV

of RCRA, but had abated that practice on or about

December 27, 19857 and since then had not violated that

provision; and (b) because it found the City in violation

of Clean Water Act prohibitions, as alleged in the CWA

citizen suit action, that the City was, ipso facto, in viola-

tion of subchapter IV RCRA provisions;

(3) With respect to Count III, that the landfill may

present an imminent and substantial endangerment to

health or the environment;* however, the court did not

identify any specific endangerment or explain why what-

ever it perceived the endangerment to be was imminent

and substantial.

(4) With respect to Count IV, the court held that the

City had violated 33 U.S.C. §1311(a) of the Clean Water

7 December 27, 1985 is the date on which the methane

control system became operative.

8 The court of appeals erroneously states that the district

court found the City to be in violation of subchapter III and

subchapter IV as the result of the district court’s finding that

the landfill presented an imminent and substantial endanger-

ment. (App. 9) In fact, the court did not find the City to have

been in violation of subchapter III of RCRA but, as previously

indicated, found the provisions of subchapter III to be inappli-

cable to the City.

Act by discharging pollutants from a point source (the

railroad culvert) into the Intervale without a permit;

(5) As to Count V, the court found the City to be in

violation of Vermont’s Groundwater Protection Act.

The order required the City to close the landfill by

January 1, 1990, the same closing date required by the

March 7, 1985 state court order, but did not grant any of

the relief sought by the plaintiffs in their action. The

court further found, without a hearing on the subject, that

the plaintiffs were prevailing parties entitled to attorney's

fees to be determined.

Thereafter, the City renewed its motion to dismiss for

lack of jurisdiction, which the court denied. (See order of

March 15, 1990, App. 118). The court then proceeded to

enter judgment pursuant to its order of October 16, 1989,

awarding plaintiffs’ attorney’s fees in the fully compensa-

tory amount of $198,027.50 plus a 25% risk/contingency

enhancement of $49,506.87. The court also awarded plain-

tiffs $10,929.66 in expenses, including expert fees.

On appeal, the Second Circuit affirmed the decisions

of the trial court in all respects:

(1) It upheld the jurisdiction of the lower court,

holding that plaintiffs had adequately complied with the

notice and delay requirements applicable to their citizen

suit actions.

Each of plaintiffs’ three citizen suit actions is subject

to differing notice and delay requirements. Commence-

ment of plaintiffs’ 42 U.S.C. §6972(a)(1)(A) action is pro-

hibited by the provisions of §6972(b)(1)(A) prior to 60

days after plaintiffs give notice of violations to the EPA

administrator, the state and the City, except that actions

respecting a violation of subchapter III? may be brought

immediately after notice is given. The 42 U.S.C.

§6972(a)(1)(B) action is, by the terms of §6972(b)(2)(A),

prohibited until after notice of the endangerment'® is

given and a 90 day delay period is observed, except no

delay is required if the action respects a subchapter III

violation. The 33 U.S.C. §1365(a) action is prohibited by

§1365(b) unless plaintiffs give 60 days prior notice of the

violations alleged. The delay period is waived if the

action is one respecting a violation of §1316 and

§1317(a)."!

The Second Circuit opinion employs a discretionary,

pragmatic approach to the application of these notice and

delay requirements. Holding that this case “involves haz-

ardous wastes,” the court declared that “rigid adherence”

to the notice and delay requirements “would lean too far,

for it would circumvent congress’s [sic] intent in enacting

these statutes.” (App. 16). Having determined not to

% Subchapter III of RCRA is found at 42 U.S.C. §§6921

through 6934.

the requirement ©’ 56972(b)(2)(A) that plaintiffs give pre-suit

notice of the alleged endangerment upon which their

§6972(a)(1)(B) action is based. See Second Circuit opinion (App.

12) where the court erroneously states: “Section 6972(b)(2),

which applies to actions brought pursuant to subsection B of

§6972(a)(1), provides for a 90-day delay, but is similar to

§6972(b)(1) in all other respects.” Contrast, Opinion and Order

of District Court, March 15, 1990, App. 118, 124-128.

" Plaintiffs did not plead a violation of §1316. Section

1317(a) does not impose obligations on the City and, therefore,

an allegation of its violation is insufficient to trigger the excep-

tion to the delay period. See Second Circuit Opinion, App.

20-21; accord National Environmental Foundation v. ABC Rail

Corp., 926 F.2d 1096, 1098 (11th Cir. 1991).

apply the notice and delay requirements strictly, the court

proceeded to analyze whether plaintiffs adequately com-

plied with the requirements with respect to Count I (the

plaintiffs’ §6972(a)(1)(A) action alleging violations of

§6925 and §6930). Exercising discretion, the court held

that the mailing of the October 8, 1985 letter, even though

there was no evidence of delivery before suit was com-

menced, was sufficient to comply with the notice require-

ment (App. 12). It also concluded that the mere allegation

of subchapter III violations in Count I was sufficient to

trigger the exception to the delay requirement, even

though the allegation was determined to be non-action-

able because subchapter III was, pursuant to 42 U.S.C.

§6926(b), superseded by Vermont's approved hazardous

waste program.!?, 13

'2 RCRA provides for approval of qualified state hazard-

ous waste programs by the EPA administrator and dictates that

a state having such an approved program “is authorized to

carry out such program in lieu of the federal program under

this subchapter.” 42 U.S.C. §6926(b). The district court deter-

mined that Vermont has, as of January, 1985, an approved

hazardous waste program which operates in lieu of the federal

program; that the regulatory requirements under RCRA are

superseded by the state regulations; and that a plaintiff seek-

ing to challenge the operation of a hazardous waste site must

bring their action under state, not federal, law. (App. 71).

‘3 It is difficult, if not impossible, to reconcile the court of

appeals’ holding that an allegation of a violation of subchapter

Ill, which is not applicable to the City because it has been

superceded, is sufficient to trigger the exception to the RCRA

delay period with its holding that an allegation of a violation

of §1317(a) is insufficient to trigger the exception to the CWA

delay period because that section is not applicable to the City.

(See Second Circuit opinion, App. 20-21).

Having thus established that jurisdiction existed with

respect to Count I, the court employed a “hybrid com-

plaint” theory to pragmatically waive the notice and

delay requirements applicable to the remainder of the

plaintiffs’ citizen suit actions. Thus, it waived the delay

requirement applicable to plaintiffs’ §6972(a)(1)(A) action

based upon alleged violations of 42 U.S.C. §6945 (Count

Il), it waived the notice and delay requirement applicable

to the Count III, 42 U.S.C. §6972(a)(1)(B) action,'* and it

waived the delay requirement applicable to the Count IV,

33 U.S.C. §1365(a) action.

In upholding jurisdiction over Count | of the com-

plaint, the court of appeals also impliedly extended the

jurisdictional grant contained in §6972 with respect to

§6972(a)(1)(A) actions. The statute only grants the district

court jurisdiction “to enforce the permit, standard, regu-

lation, condition, requirement, prohibition or order

referred to in paragraph (1)(A).” Paragraph (1)(A) refers

to “any permit, standard, regulation, condition, require-

ment, prohibition, or order which has become effective pur-

suant to this chapter” (emphasis added). Since subchapter

III was found not effective'> it would appear that §6926(a)

jurisdiction would not extend to Count | of the complaint.

14 There is not even a pretense in this case that plaintiffs

gave notice of an “endangerment” as required by

§6972(b(2A). Neither the letter notice of October 8, 1985

(App. 273) nor the “supplemental notice” (App. 275) mention

or refer to an endangerment or a violation of §6972(a)(1)(B).

The Second Circuit either considered this omission a “techni-

cality” (App. 21), or misread the applicable statutory require-

ments, see footnote 10 supra.

15 See district court opinion of October 16, 1989 (App. 59).

(2) It upheld the award of enhanced attorney’s fees,

holding that the lower court’s declaration that violations

of the statutes had occurred constituted a change in the

legal relationship of the parties entitling plaintiffs to pre-

vailing party status.'6

(3) Despite its acknowledgement that “any pollu-

tants in water flowing through the culvert have already

entered waters of the United States before they flow

through the culvert,” (App. 22) the court of appeals

upheld the trial court determination that the City was

violating §1311(a) of the Clean Water Act.

(4) The circuit court denied the City’s challenge that

there was insufficient evidence to support the lower

court’s conclusion that the landfill presented an imminent

and substantial endangerment. It did so by determining

to give no meaning to the words “imminent” and “sub-

stantial” and reading the statute as authorizing judicial

intervention to eliminate any risk posed by toxic wastes.

REASONS FOR GRANTING CERTIORARI

Review should be granted because the court of

appeals’ decision, departing from established principles,

expands the jurisdiction of the district court beyond that

granted by Congress by failing to construe and apply

strictly the notice and delay requirements applicable to

plaintiffs’ citizen suit actions. In so doing, the Second

Circuit joins the circuits among which there is a split of

7 The court of appeals also speculated that, but for the

district court order, the City would not have complied with the

state court order to close the landfill by January 1, 1990.

opinion as to whether the notice and delay requirements

are jurisdictional. The discretionary and pragmatic appli-

cation by the Second Circuit of the mandatory notice and

delay requirements also conflicts with this Court’s recent

decision in Hallstrom v. Tillamook County, 493 U.S. 20

(1989).

The opinion incorrectly concludes that plaintiffs, who

obtained no relief as a result of their lawsuit, were pre-

vailing parties entitled to fully compensatory and

enhanced attorney’s fees and expenses. By so holding, the

circuit court’s opinion conflicts with applicable decisions

of this Court in Hewitt v. Helms, 482 U.S. 755 (1987),

Rhodes v. Stewart, 488 U.S. 1 (1988), and Texas State

Teachers Association v. Garland Independent School District,

489 U.S. 782 (1989). To the extent that it can be said that

plaintiffs obtained relief, such relief was nominal at best.

By awarding attorney’s fees where only nominal relief

has been granted, the court of appeals’ decision conflicts

with the Fifth Circuit’s holding in Estate of Farrar v. Cain

and Hobby, 941 F.2d 1311 (Sth Cir. 1991).

The Second Circuit’s failure to reduce the lodestar

amount in this case, where plaintiffs obtained only lim-

ited success at best, ignores this Court's instruction in

Hensley v. Eckerhart, 401 U.S. 424 (1982). Further, the grant

of enhanced attorney’s fees both conflicts with Hensley,

supra (limiting enhancement to instances of exceptional

results), and, to the extent that the court applied a contin-

gency/risk analysis based upon the risk associated with

this case, as opposed to an analysis of the market treat-

ment of contingent fee cases as a Class, its opinion creates

a conflict with the holdings of the Third, Fourth, Eleventh

and District of Columbia Circuits with respect to the

circumstances in which enhanced fees may be awarded.

Finally, the court’s opinion invokes an interpretation

of the Clean Water Act which is contrary to the plain

language of the Act and is in conflict with the holdings of

the Sixth, Eighth and District of Columbia Circuits.

I. THE CIRCUIT COURTS ARE IN HOPELESS DIS-

ARRAY ON THE ISSUE OF HOW THE NOTICE

AND DELAY REQUIREMENTS COMMON TO

FEDERAL ENVIRONMENTAL CITIZEN SUIT

ACTIONS ARE TO BE APPLIED BY THE FEDERAL

COURTS. THE OPINION OF THIS COURT IN

HALLSTROM V. TILLAMOOK COUNTY,

DESIGNED TO BRING ORDER AND UNIFOR-

MITY TO THIS ISSUE, HAS BEEN SO LIMITED BY

THE SECOND CIRCUIT IN THIS CASE AS TO

RENDER THAT DECISION USELESS AS A MEANS

OF RESOLVING THE CONFLICT.

A. Jurisprudential Background.

The Second Circuit's discretionary and pragmatic

application of the notice and delay requirements in this

case is not new. Since enactment of the environmental

citizen suit statutes, the construction and application of

the notice and delay requirements common to those

actions have troubled the courts. By 1989 a clear split had

developed among the Circuit Courts. The First,!7 Sixth,'®

Seventh’? and Ninth?° Circuits had held that the notice

'7 Garcia v. Cecos Intern., Inc., 761 F.2d 76 (ist Cir. 1985).

snes Walls v. Waste Resource Corp., 761 F.2d 311 (6th Cir.

'% City of Highland Park v. Train, 519 F.2d 681 (7th Cir

1975), cert. denied, 424 U.S. 927 (1976).

“a Hallstrom v. Tillamook County, 844 F.2d 598 (9th Cir.

and delay requirements were jurisdictional in nature.

Those circuits, applying traditional principles with

respect to the construction and application of jurisdic-

tional statutes, held that a failure of the plaintiff to

strictly comply with the notice and delay requirements

mandated dismissal of their actions. The Third Circuit,?'

on the other hand, determined that the notice and delay

requirements were merely procedural in nature, and

could be applied with discretion and pragmatism. It con-

cluded, therefore, that a plaintiff's failure to comply with

the requirements does not require dismissal of their

actions.

In the midst of this discord among the circuits, this

Court issued its opinion in Hallstrom v. Tillamook County,

493 U.S. 20 (1989). Without deciding whether the require-

ments of notice and delay were jurisdictional, but speci-

fically upholding the principles of strict construction of

and strict adherence to the notice and delay require-

ments, the Court issued a clear mandate, holding that:

The notice and . . . delay requirements are man-

datory conditions precedent to commencing suit

under the RCRA citizens suit provisions; a Dis-

trict Court may not disregard these require-

ments at its discretion.

Id. at 31. Rejecting the pragmatic approach the Hallstrom

decision further held:

Where a party suing under the citizens suit pro-

visions of RCRA fails to meet the notice and 60

day delay requirements of 6972(b), the district

21 Pymatuning Water Shed Citizens for a Hygienic Environ-

ment v. Eaton, 644 F.2d 995 (3d Cir. 1981); accord Proffitt v.

Commissioners, Township of Bristol, 754 F.2d 504 (3d Cir. 1985).

court must dismiss the action as barred by the

terms of the statute.

Id. at 33.

Given the clear, strong language utilized by the Court

~ especially in light of the Court’s recognition that notice

and delay provisions are common to citizen suit statutes,

id. at 23, and its announcement that after the decision in

Hallstrom “courts will have no need to make case by case

determinations of when or whether failure to fulfill the

notice requirement is fatal to the party’s suit,” id. at 32 -

it might reasonably by concluded that the Court had

effectively resolved the dispute among the Circuits as to

whether the notice and delay requirements must be

Strictly construed and applied. Nevertheless, both the

District Court and the Second Circuit in this case, holding

that Hallstrom was limited to RCRA actions brought

before the 1984 amendments, have proceeded to apply

the notice and delay requirements in an expansively

pragmatic manner. Meanwhile, the Fifth Circuit, in a

post-Hallstrom RCRA decision, concluded that the notice

and delay requirements are mandatory, per Hallstrom, but

not jurisdictional. Sierra Club v. Yeutter, 926 F.2d 429, 437

(Sth Cir. 1991). The Eleventh Circuit, in reliance on

Hallstrom, has required strict adherence to Clean Water

Act citizens suit notice and delay requirements. National

Environmental Foundation v. ABC Rail Corp., 926 F.2d 1096,

1099 (11th Cir. 1991).

Since Hallstrom, therefore, the strict adherence versus

pragmatic approach conflict continues to divide the cir-

cuits. In addition, a split has developed between the

circuits respecting the scope of the Hallstrom decision

itself, with the Fifth and Eleventh Circuits recognizing

that the Hallstrom mandate applies to citizens suit actions

generally and requires a strict application of the notice

and delay requirements, while the Second Circuit views

Hallstrom as being severely limited and allowing a contin-

ued application of the pragmatic approach to the notice

and delay requirements in actions other than those

involving the pre-1984 amendment RCRA provisions.

B. The Notice and Delay Requirements are Juris-

dictional and Must Be Strictly Construed and

Applied.

The citizen suit statutes “could not be clearer”,

Hallstrom, 493 U.S. at 26, in their prohibition of commen-

cement of actions until after the notice and delay require-

ments are met by a plaintiff. The issue of whether those

requirements are jurisdictional should be easily resolved

- they are jurisdictional because compliance with the

requirements is what distinguishes citizens who have

standing to sue from those who do not.” Standing is an

essential element of jurisdiction. Flast v. Cohen, 392 U.S.

83, 99 (1968) (a plaintiff must be “a proper party to

request an adjudication”). It must be established in every

case. Whitmore v. Arkansas, 495 U.S. 149, __, 109 L.Ed.2d

135, 144, 145 (1990) (“A federal court is powerless to

create its own jurisdiction by embellishing otherwise

deficient allegations of standing”). While the issue of

standing usually arises in the context of the case or

controversy limitations of Article III of the Constitution,

22 For a discussion of a similar jurisdictional issue to that

raised by this case, see, Gwaltney of Smithfield v. Chesapeake Bay

Foundation, Inc., 484 U.S. 49, 67 (1987) (Scalia, J. concurring).

the question is no less important where standing is stat-

utorily controlled by Congress, see e.g. Sierra Club v. Mor-

ton, 405 U.S. 727 (1972) (federal court had no jurisdiction

where plaintiff had no standing to appeal under Admin-

istrative Procedure Act).

District courts are congressionally created inferior

federal courts under Article III of the Constitution. The

legislative power, reserved to Congress by Article I of the

Constitution, to ordain and establish inferior courts

“includes the power of investing them with jurisdiction

either limited, concurrent or exclusive, and of withhold-

ing jurisdiction from them in the exact degrees and char-

acter which to Congress may seem proper for the public

good.” Lockerby v. Phillips, 319 U.S. 182, 187 (1943). Espe-

cially where a jurisdictional statute is involved, basic

concepts within the separation of powers doctrine require

that the judicial branch construe and apply the statute

strictly with a view to limiting the exercise of jurisdiction

to those cases clearly authorized by Congress. Thus, this

Court has repeatedly held that jurisdictional statutes are

to be strictly construed. See, e.g. Cheng Fan Kwok v. INS,

392 U.S. 206, 212 (1968) (jurisdictional statutes must be

construed “with precision and fidelity to the terms by

which Congress has expressed its wishes”); Healy v. Ratta,

292 U.S. 263, 270 (1934) (strict and limiting construction

required regarding statutory restrictions on amount in

controversy); Romero v. International Terminal Operating

Company, 358 U.S. 354, 357 (1959) (Supreme Court has a

“deeply felt and traditional reluctance . . . to expand the

jurisdiction of federal courts through a broad reading of

jurisdictional statutes”).

C. Hallstrom v. Tillamook County appears to have

been inappropriately limited by the Second

Circuit.

The decision of this Court in Hallstrom v. Tillamook

County would appear, on its face, to control the notice

and delay issues extant in this case and require its dis-

missal. Viewed as strict procedural requirements, plain-

tiffs did not comply with either the notice or delay

requirements applicable to their citizen suit actions. (See

discussion regarding compliance, supra at 10-11).

The District Court and the Second Circuit reached the

conclusion, however, that the Hallstrom mandate is only

applicable to RCRA actions brought before the Act’s 1984

amendment which provided for a single exception to the

delay requirement. They then proceeded to conclude that

following the 1984 amendments, the pragmatic approach,

rejected by this Court in Hallstrom, is required in order to

serve congressional intent with respect to both the

notice?? and delay requirements.

There is nothing about the 1984 amendments, how-

ever, to suggest a wholesale reversal of the Congressional

intent as found by this Court. Hallstrom, 493 U.S. at 28-29.

Nor is there any apparent reason to conclude that the

principals of strict construction and application of the

notice and delay requirements should be reversed after

the 1984 amendments. The limited exception to the delay

23 Strict adherence to the notice requirements would

“thwart congress’s [sic] purpose of providing an exception to

the strict notice requirements in instances involving the height-

ened danger and immediacy of hazardous wastes.” (Second

Circuit Opinion, App. 21-22).

periods which the amendments introduce is couched in

language which implies that Congress had no intent to

change the notice requirement - “except that such action

may be brought immediately after such notification in the

case of an action respecting a violation of subchapter

III... ”. (emphasis added). Furthermore, as to the delay

requirement, the language of the amendment is poorly

chosen if the Second Circuit view is correct. If Congress

had really intended that the 1984 amendment have the

effect found by the court of appeals, it could easily have

conditioned the exception using words such as “in the

case of an action in which plaintiff alleges a violation of

subchapter III” instead of the more restrictive words “in

the case of an action respecting a violation of subchapter

III” which were chosen. In fact, if the Second Circuit is

correct, any plaintiff wishing to do so could avoid delay

periods and subvert the dual purposes of the statute (a)

to give governmental agencies the lead in enforcing envi-

ronmental regulations and (b) to avoid burdening the

federal courts, by simply alleging that his lawsuit

involved hazardous waste.

This Court should grant this petition and resolve,

once and for all, how the notice and delay requirements

in the several citizen suit statutes?4 should be construed

and applied by the lower courts. Until it does so, the

untenable condition currently prevailing will continue

and citizen suit plaintiffs and defendants will continue to

see inconsistent application of those requirements by the

federal judiciary from circuit to circuit.

24 This Court in Hallstrom noted some of the other federal

environmental statutes having notice and delay requirements

similar to those in RCRA. See Hallstrom, 493 U.S. at 23 n.1.

II. THE OPINION IN THIS CASE DEMONSTRATES

AND REFLECTS CONTINUED CONFUSION AND

INCONSISTENCY AMONG THE FEDERAL

COURTS RESPECTING THE APPLICATION OF

FEE-SHIFTING STATUTES UNDER FEDERAL

LAW, BOTH AS TO WHEN A FEE AWARD CAN BE

ORDERED AND AS TO THE LIMITS OF A

COURT’S DISCRETION IN DETERMINING THE

AMOUNT OF A FEE AWARD.

A. Plaintiffs did not substantially prevail at trial.

This long and complex lawsuit resulted in plaintiffs

obtaining no relief at all. Before plaintiffs commenced

their citizen suit actions, the City was under a state court

order to install a leachate collection system and a meth-

ane control system at the landfill and to close the landfill

by January 1, 1990. One of the major objectives of the City

in defending plaintiffs’ lawsuit was to continue operation

of the landfill until the January 1, 1990 date, in the face of

plaintiffs’ concerted effort to force immediate closure.

Plaintiffs also sought extensive other relief by their

actions. The district court granted plaintiffs none of the

relief sought by them and entered instead its final order

requiring closure of the landfill by January 1, 1990 and

announcing that plaintiffs had substantially prevailed.

Thereafter, refusing to reconsider whether plaintiffs had

in fact substantially prevailed, the court awarded plain-

tiffs’ attorney’s fees in the amount of $247,534.37, which

included a fully compensatory “lodestar” plus a 25%

risk/contingency enhancement. The court also awarded

expenses of $10,926.66. The Second Circuit affirmed the

attorney’s fees and expense award.?3

The award of attorney’s fees in this case raises issues

common to the application of fee-shifting provisions

included in all of the federal environmental statutes, as

well as the Attorney’s Civil Rights Fee Awards Act, 42

U.S.C. §1988.24 The issues of when a party may be

deemed to have prevailed, the limits of discretion to be

applied in determining downward adjustments of a

“lodestar” award where plaintiffs’ success is limited, and

the appropriateness of enhancement are all issues that

continue to confound and split the circuit courts.

B. The Prevailing Party Issue.

If, as petitioner contends, plaintiffs obtained no relief

as a result of this litigation, the decisions of this Court in

Hewitt v. Helms, 482 U.S. 755 (1987) would appear to

control and require reversal of the award of attorneys

fees. Hewitt establishes that at a minimum plaintiffs must

obtain some redress - a resolution which affects the

23 Since the Second Circuit decision, the district court has

made an additional award of $24,113 enhanced by $6,028.25,

and additional expenses of $2,707.61. (App. 137). In addition,

the Second Circuit has awarded an additional $53,315 for attor-

ney’s fees in connection with the appeal to that court. That

award is fully compensatory, but not enhanced. The court of

appeals also awarded an additional $2,240.34 in expenses.

(App. 38). The total attorney’s fee and expense award to date is

$346,865.23.

74 This Court recognized that principles respecting fee

awards in civil rights matters are applicable in the context of

environmental citizens suit litigation in Pennsylvania v. Dela-

ware Valley Citizens Council for Clean Air, 478 U.S. 546, 560

(1986).

behavior of the defendant towards the plaintiffs — before

they can qualify as a prevailing party and holds that a

mere judicial statement vindicating plaintiffs’ rights is

not the equivalent of redress.2> Hewitt v. Helms, supra at

761-763; see also Rhodes v. Steward, 488 U.S. 1, 4 (1988) (an

entry of judgment for plaintiff will constitute relief “if,

and only if, it affects the behavior of the defendant

towards the plaintiff’); Texas State Teachers Association v.

Garland Independent School District, 489 U.S. 782, 792

(1989) (“ .. . at a minimum, in order to be considered a

prevailing party . . . the plaintiff must be able to point to

a resolution of the dispute which changes the legal rela-

tionship between itself and the defendant.”) It follows

from these decisions that what happened here - the entry

of a judgment which vindicates some of the plaintiffs’

allegations, but does not change the legal relationship of

the parties —- does not qualify the plaintiffs as prevailing

parties. The City was legaily obligated to close the land-

fill on or before January 1, 1990, at the time plaintiffs

brought their actions. That obligation did not change as a

result of the entry of the district court’s judgment.

Even if the entry of judgment here could be viewed

as the granting of some form of relief to the plaintiffs,

that relief is, at best, nominal, and should not entitle

plaintiffs to prevailing party status. The opinion in Texas

State Teachers’ Association left open the question of

25 The Second Circuit ultimately bases its conclusion that

plaintiffs met the prevailing party test on its conclusion that

the “plaintiffs have achieved a significant vindication of their

rights” because “[a] determination by the court that the city

had violated provisions of RCRA and the CWA constitutes a

change in the legal relationship of the parties that goes beyond

what was contained in the Assurance.” (App. 31-32).

whether nominal relief awarded to plaintiffs would qualify

them as prevailing parties: “ . . . [A] technical victory may be

so near the situations addressed in Hewitt and Rhodes as to be

insufficient to support prevailing party status.” Id. at 792.

That issue has now split the Circuit Courts, with the Sec-

ond,76 Eighth?” Ninth7® Tenth?? and Eleventh®® Circuits

holding that an award of nominal damages in the civil rights

context establishes prevailing party status and the Fifth Cir-

cuit in Estate of Farrar v. Cain and Hobby, 941 F.2d 1311 (Sth

Cir. 1991) holding to the contrary.

C. Downward Adjustment of the Lodestar is

Required.

Even if plaintiffs are entitled to prevailing party sta-

tus, substantial questions remain as to whether the award

of fully compensatory and enhanced fees in the light of

plaintiffs very limited success is an abuse of discretion.?!

In Hensley v. Eckerhart, 401 U.S. 424 (1982), this Court

clearly held that where a plaintiff achieves only partial or

limited success, the discretion of the court in awarding

26 Ruggiero v. Krzeminski, 928 F.2d 558 (2d Cir. 1991).

27 Coleman v. Turner, 838 F.2d 1004, 1005 (8th Cir. 1988).

28 Scofield v. City of Hillsborough, 862 F.2d 759, 766 (9th Cir.

1988).

29 Nephew v. City of Aurora, 830 F.2d 1547, 1553 n.2 (10th

Cir. 1987) cert. denied, 485 U.S. 976 (1988).

30 Garner v. Wal-Mart Stores, Inc., 807 F.2d 1536, 1539 (11th

Cir. 1987).

31 Had this case been settled at its outset on a stipulated

judgment that the City be ordered to close the landfill on

January 1, 1990 — as it surely could have been from the City’s

standpoint - there would be no question that an award of over

$247,000 in attorney’s fees would be excessive.

fees does not extend to an award of fully compensatory

lodestar fees. Id. at 435-437. While Hensley does not chart

a particular course for downward adjustments in the

lodestar where only limited success is obtained, it clearly

requires such an adjustment.

There is no precise rule or formula for making

these determinations. The district court may

attempt to identify specific hours that should be

eliminated, or it may simply reduce the award

to account for the limited success. The court

necessarily has discretion in making this equita-

ble judgment. This discretion, however, must be

exercised in light of the considerations we have iden-

tified.

Id., at 436 (emphasis added).

The Hensley decision also establishes that an en-

hancement of a iodestar fee is appropriate only in rare

cases.

Where a plaintiff has obtained excellent results,

his attorney should recover a fully compensa-

tory fee. Normally, this will encompass all hours

reasonably expended on the litigation, and

indeed in some cases of exceptional success an

enhanced award may be justified.

Id. at 435 (emphasis added). The discretion of the district

court to award enhanced fees is limited, therefore, to

those cases where the result obtained surpasses excel-

lence and attains the status of exceptional. The result in

this case simply does not reach that status.

D. Enhancement of the Lodestar Was Improper.

In those rare instances where enhancement may be

appropriate, the state of the law regarding a justification

for enhancement is deplorable. The issue is whether the

risk of loss, where plaintiff's attorney is not being com-

pensated aside from any recovery obtained under the fee-

shifting statutes, justifies enhancement of the lodestar

amount. This Court was unable to reach a majority opin-

ion on that subject in Pennsylvania v. Delaware Valley Citi-

zens Council for Clean Air, 483 U.S. 711 (1987). Since that

case, several courts have adopted the view expressed in

Justice O’Connor’s concurring opinion: risk/contingency

enhancement may be utilized when justified by a “differ-

ence in market treatment of contingent fee cases as a class

rather than on an assessment of the ‘riskiness’ of any

particular case.” Id. at 731, see, e.g., Student Public Interest

Research Group v. AT&T Bell Laboratories, 842 F.2d 1436,

1451 (3d Cir. 1988); Rode v. Dellarciprete, 892 F.2d 1177 (3d

Cir 1990); Spell v. McDaniel, 824 F.2d 1380, 1404 (4th Cir.

1987), cert. denied sub nom. Fayetteville v. Spell, 484 US.

1027 (1988); Lattimore v. Oman Construction, 868 F.2d 437,

439, reh. denied, 875 F.2d 874 (11th Cir. 1989); Save Our

Cumberland Mountains, Inc. v. Hodel, 826 F.2d 43, 53 n. 6

(1987), vacated in part en banc, 857 F.2d 1516 (D.C. Cir.

1988); McKenzie v. Kennickell, 875 F.2d 330, reh. denied, 884

F. 2d 1405 (D.C. Cir. 1989). Stating its disagreement with

those circuit courts, and inviting review by this Court,22

the Second Circuit, even though success on the part of the

plaintiff was limited at best, affirmed the district court’s

award of enhanced fees on its assessment that given the

32 “Apart from the anomaly of the views of one justice,

with whom no one concurs, being the law of the land, where

the court is so divided on an issue and where there is no

majority opinion at all, we conclude that the issues of whether

and when a contingency enhancement is warranted are open

issues for the Supreme Court yet to decide.” App. 36.

—s — —" _

risk of loss peculiar to this case, enhancement was justi-

fied because, the district court found, without the oppor-

tunity for enhancement this plaintiff would have faced

difficulty obtaining competent counsel.

This Court should accept the invitation of the Second

Circuit and grant certiorari so that it may review and

clarify the law respecting when and to what extent dis-

trict courts may award attorney’s fees under federal fee

shifting statutes.

Ill. THE DECISION IN THIS CASE CREATES A

SPLIT AMONG THE CIRCUIT COURTS

REGARDING THE SCOPE OF THE REGULA-

TORY SCHEME ADOPTED BY CONGRESS IN

THE CLEAN WATER ACT.

The Clean Water Act provides a regulatory scheme

for controlling pollution of water. It does not attempt to

regulate all pollution of water because such an effort

would be too massive and impossible to enforce. Instead,

the Act focuses on controlling and regulating certain

activities which are subject to a manageable enforcement

program. The key to the regulatory scheme is the identi-

fication and regulation of certain limited means - “point

sources” — by which pollutants are introduced into water.

(See National Wildlife Federation v. Consumers Power Co.,

862 F.2d 580 at 580-82 (6th Cir. 1988) (discussing limited

scope of Clean Water Act regulatory scheme).

The opinion of the Second Circuit corrected the lower

court’s erroneous finding that water flows from the land-

fill into the Intervale through the railroad culvert (App.

84). Instead, the Second Circuit correctly observed that

“any pollutants in water flowing through the culvert

have already entered waters of the United States before

they flow through the culvert.” (App. 22). The court of

appeals nevertheless upholds the judgment that the City

was in violation of 33 U.S.C. §1311(a). That opinion con-

tradicts the plain meaning of the statutory language,

contradicts opinions of other circuit courts and expands

the scope of the Congressional regulatory scheme so as to

make it practicably unenforceable.

The bounds of the regulatory scheme adopted by

Congress is contained in the language of 33 U.S.C.

§1311(a) and the statutory definitions which supplement

that section. Section 1311(a) provides:

Except as in compliance with this section and

sections 1312, 1316, 1317, 1328, 1342 and 1344 of

this title, the discharge of any pollutant by any

person shall be unlawful.

33 U.S.C. §1311(a).

The critical limitation on the scope of §1311 is con-

tained in §1362(12) and (14) which provide:

Except as otherwise specifically provided, when

used in this chapter:

* * *

(12) the term ‘discharge of a pollutant’. . .

means . . . any addition of any pollutant to

navigable waters from any point source... . ’

* * *

(14) the term ‘point source’ means any discern-

ible, confined and discrete conveyance, . . . from

which pollutants are or may be discharged.

33 U.S.C. §1362(12) and (14).

The statutory language does not prohibit all addi-

tions of pollutants to waters of the United States. Nor

does it purport te sanction conduct because of events

taking place after a non-regulated addition of pollutants

> ee ee

to waters. Instead, the focus of the regulatory scheme, as

expressed in the statutes, is clearly centered on the “addi-

tion” of pollutants to waters “from a point source.” The

regulated conduct is the use of a point source to add a

pollutant to waters. Rejecting this argument, the court of

appeals held that prohibited conduct occurs if, after pol-

lutants are added to waters in a non-regulated manner,

the polluted water passes through a discernible, confined

and discrete conveyance.

The precise issue raised in this case was before the

District of Columbia Circuit Court in National Wildlife

Federation v. Gorsuch, 693 F.2d 156 (D.C. Cir. 1982). In a

thorough and carefully reasoned opinion, that court,

adopting the position taken by the EPA, held that:

[A]ddition [of a pollutant] from a point source

occurs only if the point source itself physically

introduces a pollutant into water from the out-

side world. . . . [T]he point or nonpoint charac-

ter of pollution is established when the

pollutant first enters navigable water and does

not change when the polluted water later passes

through [a structure having the physical charac-

teristics of a point source]... .

Id. at 175

The same position has been taken by the Sixth Circuit

in U.S. ex rel. TVA v. Tennessee Water Quality Control Board,

717 F.2d 992 (6th Cir. 1983), cert. denied, 466 U.S. 937

(1984) and in National Wildlife Federation v. Consumers

Power Co., 862 F.2d 580 (6th Cir. 1988). Interpreting the

§1362(12) and (14) definitions, the Eighth Circuit held

that the “discharge of a pollutant requires an ‘addition’ of

a pollutant from a ‘point source’ .. . ” State of Missouri ex

rel. Ashcroft v. Dept. of the Army, 672 F.2d 1297, 1303-1304

(8th Cir. 1982).

The decision of the Second Circuit in this case cannot

be reconciled with the opinions of the other circuit courts

interpreting the same provisions of the Clean Water Act.

It has the effect of amending the Act and extends the

regulatory scheme to a breadth which was not envisioned

by Congress when the law was enacted.

This petition should be granted so that this Court

may resolve the conflict now existing between the circuit

courts, thereby assuring order and uniformity of applica-

tion in the administration and enforcement of the Clean

Water Act.

CONCLUSION

For the reasons stated herein, the petition for a writ

of certiorari should be granted.

Respectfully submitted,

Micuaet B. Crapp*

Rosert R. McKEearin

Freperick S. Lane III

Dinse, ERDMANN & CLapp

209 Battery Street

Burlington, Vermont 05402-0988

*Counsel of Record

November, 1991

or Toe

APPENDIX

TABLE OF CONTENTS

VOLUME |

Opinion of Second Circuit Court of Appeals, June

NES Kat evedbbidncedivethebauudesnteset App.

Order of Second Circuit Court of Appeals, Octo-

I FT rt) nee App.

Opinion of United States District Court for the

District of Vermont, March 26, 1986......... App.

Order of United States District Court for the Dis-

trict of Vermont, February 5, 1987.......... App.

Opinion of United States District Court for the

District of Vermont, October 16, 1989....... App.

Judgment of United States District Court for the

District of Vermont, May 7, 1990 .......... App.

VOLUME II

Opinion of United States District Court for the

District of Vermont, March 15, 1990........ App.

Opinion and Order of the United States District

Court for the District of Vermont, April 2,

CPt ON chidGn budaccwcedde ecunlow edcedaces App.

Order of United States District Court for the Dis-

trict of Vermont, May 4, 1990.............. App.

Order of United States District Court for the Dis-

trict of Vermont, October 11, 1991......... App.

Docket Entries, United States District Court for

the District of Vermont, first page only.... App.

Page

116

118

130

135

137

139

TABLE OF CONTENTS - Continued

Page

Opinion and Order of Second Circuit Court of

Appeals, August 20, 1986.................. App. 142

Order of Second Circuit Court of Appeals, August

20, 1991, denying Motion for Rehearing.... App. 145

United States Constitution, Article I, Section 1.. App. 147

United States Constitution, Article III,

EF nb dn cdentsccesecansdabentascecvess App. 147

United States Constitution, Article III,

A censhoeacars abi pudvnessudacnnaly App. 147

IC 3 2. 52-7 tec ery eet App. 149

Fe EE Nain ev kcwidedecvineenduaarens App. 150

BF PE ED hd neds cdcccscsccespenseesKes App. 157

Pe Eo eb cctnevaccascscctsteaneune App. 178

I 50 U4 bcs chedevnsaueseeedens App. 183

ee IS cach secsansaveande enendees App. 188

eo 4s vine dséec eben adv diacsed App. 191

ee Eo no's Ueudbdg scddscecudacuues App. 209

Sp I bons cacostceaneséacccouseuds App. 215

ove cece uwenaeeueees kxnee App. 228

Cw ibdcscdiebbadvencinctedeens App. 224

ee GW 6.56n 6408 cansneksonnes¥ deen App. 232

Se cone W seus ccescccesenisddecates App. 240

ae Me gre RETEEEEEEEE EEE EEE App. 244

Affidavit of William W. Pearson dated November

De er Pee Deis 2 tr a i ee ee App. 270

Ss .

a wee * he oni OR

;

iii

TABLE OF CONTENTS - Continued

Page

Letter of October 8, 1985, Attachment A to Affi-

davit of William W. Pearson............... App. 273

Letter of November 5, 1985, attached to Affidavit

of William W. Pearson..................... App. 275

Affidavit of Steven Goodkind dated December 7,

BRT EP ERE tc er in ee ee eee App. 277

SA Ne ee em ee i Ce ell ee ee ety ng eo ceeded D.

App. 1

UNITED STATES COURT OF APPEALS

For THE SECOND CIRCUIT

No. 415 — August Term 1990

(Argued: October 29, 1990 Decided: June 12, 1991)

Docket NO. 90-7544

Ernest Dacug, Sr., Ernest Dacue, JR.,

Berty Dacue, and Rose A. BesseTTE,

Plaintiffs- Appellees,

~ against -

City oF BURLINGTON,

Defendant-Appellant.

Before:

NewMan and Pratt, Circuit Judges,

Griesa, District Judge for the Southern District of

New York, sitting by designation.

App. 2

Pratt, Circuit Judge:

Plaintiffs are owners of land adjacent to the Bur-

lington Municipal Disposal Grounds (the “landfill”).

They brought this action against the City of Burlington

for alleged violations of state and federal laws arising out

of the operation of the landfill. Plaintiffs alleged that the

operation of the landfill generally harmed the environ-

ment, and the specifically damaged their properties, by

2 ee ae

App. 3

generating methane gas, wind-blown debris, and hazard-

ous waste. The city closed the landfill on December 31,

1989.

The plaintiffs’ ten-count complaint sought injunctive

relief, civil penalties, compensatory damages, and puni-

tive damages, plus cost and attorneys’ fees. Judge Billings

held a bench trial on the first five counts of the complaint.

Counts I, II, and III were brought pursuant to the citizen-

suit provision of the Resource Conservation and Recov-

ery Act (“RCRA”), 42 U.S.C. § 6972; count IV was brought

pursuant to the citizen-suit provision of the Clean Water

Act (“CWA”), 33 U.S.C. § 1365; and count V was brought

pursuant to the Vermont Groundwater Protection Law, 10

Vt. Stat. Ann. § 1410.

The district court found that the City of Burlington

had operated the landfill in violation of prohibitions

against open dumping practices found in 42 U.S.C.

§ 6945(a); that the landfill may have presented an immi-

nent and substantial endangerment to health or the envi-

ronment in violation of 42 U.S.C. § 6972(a)(1)(B); and that

the landfill had discharged pollutants from a point source

into waters of the United States in violation of 33 U.S.C.

§ 1311. Liability under the remaining common law claims,

count VI through X, and the issue of damages on count V,

were reserved for trial by jury at a later date.

The district court denied a motion by the city to

dismiss counts II, III, and part of IV of the complaint,

made on the ground that plaintiffs had failed to comply

with the notice and delay requirements for citizen-suits

under 42 U.S.C. § 6972(a) and 33 U.S.C. § 1365(a).

App. 4

In addition, the court found that the plaintiffs had

substantially prevailed and awarded them total attor-

ney’s fees, pursuant to 42 U.S.C. § 6972(e) and 33 U.S.C.

§ 1365(d), in the amount of $247,534.37, which included a

“lodestar” amount of $198,027.50 plus a 25 percent risk/

contingency enhancement of $49,506.87. The court also

awarded plaintiffs $10,929.66 in expenses including

expert fees.

The city appeals all of these rulings.

BACKGROUND

The City of Burlington has owned and operated the

landfill since the early 1960s. The landfill is rectangular in

shape and is located on approximately eleven acres of

land to the north of the commercial-residential center of

the city. It is bounded to the east and south by properties

owned by the plaintiffs, to the north by a railroad

embankment, and to the west and northwest by a marsh

area called the Intervale, which has been designated a

wetland, as well as by Beaver Pond, which is actually the

southeast portion of the marsh. A large stone culvert runs

under the railroad and connects the Beaver Pond portion

of the marsh with the northeast quadrant if the Intervale.

The Intervale is in the flood plain of the Winooski

River. It is inundated or saturated by surface water suffi-

cient to support a variety of vegetation typically adapted

for life in saturated soil conditions. The Intervale occa-

sionally floods, leaving the entire area covered with sur-

face water, including parts of the landfill itself. At normal

times, water in the culvert is either in equilibrium or

flows from south through the culvert. During times of

App. 5

high water, however, surface water may flow from north

to south through the culvert.

Trash is buried in the landfill to a depth of approx-

imately nine feet below the ground water table on the

northern edge of the landfill, Historically, rain water and

run-off from the land have been able to percolate into the

landfill mass. As a result, ground water mixes with and

flows through contaminants in the landfill.

The landfill contains typical domestic and municipal

wastes as well as materials deposited over the years by

local industries. When ground water infiltrates the land-

fill, the water mixes with the material in the landfill and

forms leachate. Leachate is a liquid that has passed

through or emerged from solid waste and contains sol-

uble, suspended, or miscible materials removed from

such wastes. The leachate is generated both by percola-

tion of precipitation into the landfill mass and by the flow

of groundwater through the refuse in the landfill. The

leachate produced in the landfill contains chemicals and

compounds found on toxic and hazardous lists under

RCRA and the CWA. Because the landfill is unlined, the

leachate enters the upper gradients or “flow tubes” of

ground water under the landfill. The ground water then

flows north beyond the landfill boundaries, and the flow

tubes of the leachate-contaminated ground water all sur-

face in the Intervale, north of and within 300 feet of the

railroad embankment.

Leachate has also emerged from the sides of the

landfill via seeps. From there, it flows into Beaver Pond

and thence through the culvert under the railroad

embankment and into the Intervale. The fact \hat leachate

App. 6

from the landfill is toxic to a small fish called the fathead

minnow demonstrates that the leachate also kills Daphnia

(water fleas) and algae.

In the early 1980s, the State of Vermont began to

closely scrutinize the landfill. As a result of the state’s

investigation, the state and the city entered into an Assur-

ance of Discontinuance on December 15, 1981, which

nominally required the city by July 1, 1984, to cease

disposing of any refuse in the landfill, with the exception

of residue from a planned resource recovery facility.

When the city did not comply, the terms of the Assurance

were amended several times, the most pertinent amend-

ment (“Amended Assurance”) occurring on January 31,

1985. It required that the city install and make operational

a leachate collection system at the landfill by September

1, 1985, and that the city install and make operational a

methane gas control system by December 1, 1985. It also

gave the city two options: (1) select another landfill site

and close the current landfill by January 1, 1988, or (2)

begin operating a resource recovery facility (“RRF”) and

close the landfill by January 1, 1990. This Amended

Assurance was entered as an order of the Chittenden

Superior Court on March 7, 1985.

The city did not timely comply, however, even with

the terms of the Amended Assurance. It did not install

the leachate collection system of the methane gas control

system until March of 1986, after the State of Vermont, on

December 18, 1985, had brought an action against the city

to enforce the March 7th order. Moreover, the city never

notified the state in writing of its choice between the two

closure options, despite its obligation to do so. While the

-_"

App. 7

city’s board of aldermen did adopt a resolution to pursue

the RRF option, the mayor vetoed the resolution.

During the years 1985 and 1986, the state performed

its own environmental assessment of the landfill, con-

ducting substantial monitoring and testing of the area in

and around the landfill, and collecting both leachate data

and biological data. While the state concluded, as a result

of its investigation, that the landfill did not, at that time,

present an imminent and substantial endangerment to

human health of the environment, it did determine that

January 1, 1990, was the appropriate closure date in view

of the environmental concerns presented by the landfill.

Plaintiffs filed their complaint in this matter on Octo-

ber 9, 1985. The day before, plaintiffs had mailed letters

to the defendant city, the State of Vermont, and the

Administrator of the Environmental Protection Agency

(the “EPA”), notifying them of plaintiffs’ contention that

the city was operating the landfill in violation of sections

6925, 6930, and 6945 of RCRA, and sections 1311, 1317,

and 1342 of the CWA. Plaintiffs moved for a preliminary

injunction seeking immediate closing of the landfill. The

case was initially referred to the Honorable Jerome J.

Niedermeier, United States Magistrate for the District of

Vermont, to hear and determine the motion. The city

moved to dismiss the complaint primarily on the basis of

failure to comply with the notice prerequisites of 42

U.S.C. § 6972(a) and 33 U.S.C. § 1365(a). The court sug-

gested that the plaintiffs then file a proper notice under

RCRA and CWA and reserved decision on the motion to

dismiss. Heeding the court’s suggestion, the plaintiffs

filed a “supplemental” notice.

App. 8

In February of 1986, the magistrate issued a Report

and Recammendation, finding for purposes of the prelim-

inary injunction motion, that the city was in violation of

- § 6945(a) of RCRA and § 1311(a) of the CWA. However,

the magistrate recommended that the court deny plain-

tiffs’ motion at that time and order the city to take certain

specific steps toward remedying the violations. Adopting

the magistrate’s Report and Recommendation in toto, the

district court denied plaintiffs’ motion for a preliminary

injunction and ordered the city, within sixty days, to

make fully operational both a gas ventilation system and

a leachate collection system for the landfill. At this point,

the city complied.

After a bench trial, the district court issued its Find-

ings of Fact, Opinion and Order. 732 F.Supp. 458. As to

count I, it concluded that the city had not violated the

hazardous waste permit and notification requirements of

42 U.S.C. §§ 6925(a) and 6930(a). It based this holdings on

the fact that the State of Vermont had authorization to

implement its own solid and hazardous waste program

pursuant to 42 U.S.C. § 6926(b), and that the state’s

regulations superseded the requirements under RCRA.

Accordingly, the court found that a direct action to

enforce the RCRA regulations was not available to the

plaintiffs. See Williamsburgh-Around-the-Bridge Block Assn.,

et al. v. Jorling, et al., No. 89-CV-471, slip op. at 10

(N.D.N.Y. August 21, 1989); Thompson v. Thomas, 680

F.Supp. 1, 3 (D.D.C. 1987).

As to count II, which alleged three separate open

dumping practices in violation of 42 U.S.C. § 6945(a), the

court found that (a) the city had generated methane gas,

in violation of 40 C.F.R. § 257.3-8(a)(2), but had abated

eT A La cs Sl a: A ye

= ae

App. 9

that practice on or about December 27, 1985, and since

then had not violated this provision; (b) the city had,

through a point source. discharged pollutants into waters

of the United States without a permit, in violation of 40

C.ER. § 257.3-3(a); and (c) the city had not contaminated

an underground drinking water source beyond the land-

fill boundary, and therefore had not violated 40 C.FR.

§ 257.3-4(a).

As to count III, the court held that the city had

violated subchapter III (hazardous waste management

provisions) and subchapter IV (solid waste management

provisions) of RCRA because the landfill may have pre-

sented an imminent and substantial endangerment to

health or the environment, and therefore, its continued

operation violated 42 U.S.C. § 6972(a)(1)(B).

As to count IV, the court found that the city had

violated the CWA by discharging pollutants from a point

source (the railroad culvert) into the Intervale without

authorization. Finally, as to count V, the court held that

the city had violated Vermont’s Groundwater Protection

Law, 10 Vt. Stat. Ann. § 1410, by altering the character

and quality of the groundwater beneath and north of the

landfill.

Subsequently, the district court entered an Opinion

and Order denying the city’s motion to dismiss counts II,

Ill, and part of IV, and it also entered an Opinion and

Order granting the plaintiffs’ motion for attorney’s fees.

The district court then entered judgment with respect to

its holdings on counts | through IV, and pursuant to Fed.

App. 10

R. Civ. P. 54(b), certified for appeal the judgment on the

federal issues presented by these four counts. The court

deferred for future action the damage issues under state

law that were presented by count V.

DISCUSSION

The city raises four issues on this appeal. We turn

first to the threshold issue of notice and consider (A)

whether the district court erred in determining that Hall-

strom v. Tillamook County, 110 S.Ct. 304 (1989), did not

require dismissal of the case. If Hallstrom governs, and

plaintiffs’ mailing of the notice of suit one day before

commencing this action was inadequate, we could dis-

miss the case on that ground alone. However, since we

conclude that the district court was correct in finding that

the delay requirement was inapplicable in the circum-

stances of this case, we must also consider the remaining

issues raised by the city: (B) that the district court erred

in determining that the culvert was a “point source” for

purposes of finding a CWA violation; (C) that the district

court incorrectly found that the landfill may present an

imminent and substantial harm to health and the environ-

ment; (D) that the district court erroneously awarded

attorney’s fees. We shall discuss these issues separately.

A. Pre-Suit Notice

Initially, we must determine whether this action must

be dismissed because the plaintiffs failed to comply with

the notice and delay requirements under the citizen-suit

provisions of RCRA and the CWA. See 42 U.S.C. § 6972

me ee oe ee a

;

App. 11

and 33 U.S.C. § 1365. Section 6972(a) sets forth the speci-

fic circumstances under which a citizen may commence a

citizen suit, and § 6972(b) provides limitations on this

ability to file suit. One type of limitation is the require-

ment for notice to the defendants and a time period of

delay before commencing suit. This case involves three

such notice provisions:

(1) Section 6972(b)(1) of RCRA, which

applies to actions brought pursuant to subsec-

tion A of § 6972(a)(1), states in relevant part:

(1) No action may be commenced under

subsection (a)(1)(A) of this section -

(A) prior to 60 days after the plaintiff has

given notice of the violation to -

(i) the Administrator;

(ii) the state in which the alleged viola-

tion occurs; and

(iii) to any alleged violator of such per-

mit, standard, regulation, condition,

requirement, prohibition, or order,

except that such action may be brought imme-

diately after such notification in the case of an

action under this section respecting a violation

of subchapter III of this chapter; or

(B) if the Administrator or State has com-

menced and is diligently prosecuting a civil

or criminal action in a court of the United

States or a State to require compliance with

such permit, standard, regulation, condi-

tion, requirement, prohibition, or order.

*. 2

App. 12

42 U.S.C. § 6972(b)(1) (emphasis added).

(2) Section 6972(b)(2), which applies to

actions brought pursuant to subsection B of

§ 6972(a)(1), provides for a 90-day delay period,

but is similar to § 6972(b)(1) in all other respects.

(3) Section 1365(b) of the CWA, which applies to

actions brought pursuant to § 1365(a), requires a

60-day delay period after giving notice to the

same relevant parties, but it does not apply if

the action alleges a violation of § 1316 or

§ 1317(a).

To comply with these requirements, plaintiffs’ attor-

ney mailed, by first-class mail, letters notifying the defen-

dant city, the State of Vermont, and the Administrator of

the EPA of plaintiffs’ contention that the city was oper-

ating the landfill in violation of 42 U.S.C. §§ 6925, 6930

and 6945 and 33 U.S.C. §§ 1311, 1317, and 1342. Plaintiffs,

however, did not wait out the delay periods. In fact, the

very next day, they filed their complaint with the district

court. After the court found that the letter did not meet

all the substantive requirements for notice under RCRA

and the CWA and ordered the plaintiffs to file a proper

notice, plaintiffs then mailed a “supplemental” notice,

whose content satisfied the statutory requirements, but

whose timing provides one of the major issues on this

appeal.

The city relies on the Supreme Court’s recent deci-

sion in Hallstrom v. Tillamook County, 110 S.Ct. 304 (1989),

in urging that the plaintiffs’ action must be dismissed

because their failure to adhere to the statutory notice and

delay provisions both prohibits the commencement of the

action and, at the same time, deprives the district court of

oe DP.

= on ee en 88

App. 13

subject matter jurisdiction to entertain the action. In Hall-

strom, the Court stated that § 6972(b)’s notice and delay

requirements are “mandatory conditions precedent to

commencing suit under the RCRA citizen-suit provision;

a District Court may not disregard these requirements at

its discretion.” Pointing to the clear statutory language

and plaintiffs’ failure to give any notice either to the

Administrator or to the state where the violation occurred

until after the suit commenced, the Supreme Court dis-

missed the complaint despite the fact that the case had

gone to trial and the plaintiffs had won on the merits.

Hallstrom, 110 S.Ct. at 311. The city here argues that the

Court’s refusal in Hallstrom to depart from the literal

meaning of the notice requirements compels dismissal of

the plaintiffs’ complaint as “barred by the terms of the

statute.”

The district court rejected this argument. 733 F.Supp.

23. It held that Hallstrom did not control because that case

did not address a situation where the plaintiffs allege a

claim “respecting a violation of subchapter III”, which

deals with hazardous waste pollution. The court con-

cluded the Hallstrom was applicable only to situations

where no hazardous waste violations were alleged, and

since the instant complaint raised two claims arising

under subchapter III, dismissal pursuant to Hallstrom was

not necessary.

We agree with the district court, at least to an extent

sufficient to uphold the court’s jurisdiction. The 1984

amendments to RCRA and the CWA, 42 U.S.C. § 6972(b)

and 33 U.S.C. § 1365(b), respectively, made clear that at

least plaintiffs’ hazardous waste claims in count I (sub-

chapter III violations) could be brought immediately after

App. 14

giving notice to the administrator of the EPA, the state

and the alleged violator. The remaining question, there-

fore, is whether the notice and delay requirements apply

when allegations of subchapter III violations are com-

bined with non-subchapter III claims in a single “hybird”

complaint. Neither congress nor the Supreme Court in

“Hallstrom” addressed the problems associated with this

type of “hybird” situation.

The city argues that the Supreme Court’s holding and

strong language in Hallstrom mandate dismissal of this

“hybrid” complaint. It also argues that if plaintiffs could

circumvent the delay requirements by simply asserting a

subchapter III claim, whether or not such a claim has

merit, the congressional policy for delay would be effec-

tively nullified.

The delay periods in the citizen-suit provisions result

from a congressional compromise “between encouraging

citizen enforcement of environmental regulations and

avoiding burdening the federal courts with excessive

numbers of citizen suits.” Hallstrom, 110 S.Ct. at 310.

Compliance with the notice and delay provisions fulfills

this congressional goal in two ways. First, governmental

agencies can take the lead in enforcing environmental

regulations, with the hope that “an agency may be able to

compel compliance through administrative action, thus

eliminating the need for any access to the courts,” Id.

Second, the alleged violator is given a nonadversarial

period in which he has the opportunity to comply with

the law, thus obviating the need for the citizen suit. /d.

In the 1984 amendments to RCRA, however, congress

abrogated the delay periods when an “action” under

App. 15

§ 6972 “respect([s]” a violation of the hazardous waste

management provisions (subchapter III) of RCRA. 42

U.S.C. §§ 6972(b)(1)(A) and 6972(b)(1)(B). When viola-

tions of the EPA’s permit requirements for hazardous

wastes are involved, congress felt it necessary to carve

out exceptions to the delay requirements so that citizen

suits could be brought immediately. Hallstrom, 110 S.Ct.

at 309. Congress obviously determined that with hazard-

ous wastes the dangers of delay and the potential for

greater damage to public health or the environment out-

weigh the justifications for the pre-suit delay periods. It

struck the balance in favor of prompt citizen enforcement

of hazardous waste violations over its other policy aims

of encouraging nonjudicial and nonadversarial resolution

of environmental conflicts.

The district court found that under the city’s inter-

pretation, a citizen would have to choose between (1)

delaying 60 days before bringing the hazardous claim so

that all the claims could be brought simultaneously, or (2)

filing the hazardous waste claim immediately after notice

is given and then seeking leave to amend the complaint

to add the remaining claims after 60 days has passed. If

felt that plaintiffs with subchapter III claims should not

have to make this choice. Thus, the court held that when

plaintiffs have a “hybrid” complaint, the delay periods

otherwise required before commencing a non-subchapter

III suit become inapplicable.

The district court reasoned that the policy reasons for

requiring a delay period, as identified in Hallstrom, were

no longer important once a hazardous waste violation

was alleged. First, when hazardous waste violations are

involved, the interest of promoting initial governmental

App. 16

enforcement action is substantially diminished, as is the

preference for administrative resolution: “[T]here is no

need to maintain a window of opportunity for the gov-

ernment to take the lead enforcement role as to non-

subchapter III claims when a citizen, acting as a private

attorney general, has already lawfully assumed the lead

role in bringing a subchapter III claim against the same

facility.” 733 F.Supp. at 26. Second, when a citizen suit is

filed to enforce hazardous waste violations, the citizen

and the alleged violator are automatically placed in an

adversarial posture; therefore, the district court con-

cluded, the filing of a citizen suit involving subchapter III

claims, immediately after giving notice, effectively elimi-

nates the opportunity for the alleged violator to achieve

compliance with the non-subchapter III claims in a non-

adversarial climate.

We agree with the analysis if the district court.

Although the Supreme Court’s language in Hallstrom

leans toward a strict application of the notice and delay

requirement, rigid adherence in this case, which involves

hazardous wastes, would lean too far, for it would cir-

cumvent congress’s intent in enacting these statutes. Hall-

strom is therefore distinguishable, because there the

plaintiffs had plainly disregarded the language of the

statute by filing a complaint alleging only non-subchap-

ter III violations without mailing any notice whatsoever.

Here, plaintiffs did give notice to the appropriate parties

identified in the statute, and then filed their “hybird”

complaint the next day, alleging violations of both sub-

chapter III and non-subchapter III provisions.

App. 17

Although the city’s argument — that plaintiffs can

easily circumvent the delay requirements by simply alleg-

ing a subchapter III violation, whether or not it is mer-

itorious - does raise some concern, we do not think it

outweighs congress’s manifest intent to encourage quick

citizen enforcement of hazardous waste violations of sub-

chapter III. Of course, if a plaintiff should allege frivolous

subchapter III claims, he would not only be subject to

rule 11 sanctions, but his claims could also be dismissed

early in the litigation process, and the court, by stay or

dismissal, could require full observance of the delay

period. Moreover, in order to eliminate the delay require-

ment with a “hybird” complaint, the two types of viola-

tions would have to be closely related. In this case, for

example, plaintiffs’ subchapter III and non-subchapter II!

claims all arose from the operation of a single facility and

are based on the same core of interrelated facts.

In addition to its general argument that counts II and IV

must be dismissed because they were filed prematurely, the

city also makes more particular arguments as to why it

believes that all the counts should be dismissed.

1. EPA-Authorized State Hazardous Waste Program

The city claims that RCRA’s exception to the delay

requirements for subchapter III actions is not applicable

in Vermont because that subchapter has been superseded

by Vermont’s approved Hazardous Waste Management

Plan pursuant to 42 U.S.C. § 6926(b). We disagree. We

note initially that Plaintiffs’ complaint contains two

counts that allege hazardous waste violations - counts |

and III. Count I was brought -pursuant to subsection A of

App. 18

the citizen suit provision, 42 U.S.C. § 6972(a)(1), and

count III was brought pursuant to subsection B.

Within the general citizen suit provision of RCRA

(§ 6972(a)(1)), two separate subsections specify two dif-

ferent types of actions that may be brought. Subsection A

primarily addresses violations of permits, standards, reg-

ulations, and the like. Subsection B allows causes of

action against those whose activities “ha[ve] contributed

or ** * [are] contributing to the past or present handling,

storage, treatment, or disposal of any solid or hazardous

waste which may present an imminent and substantial

endangerment to health or the environment”.

Pursuant to § 6926(b), an EPA-authorized state haz-

ardous waste program, like that in Vermont, can super-

sede the permit and notification requirements of

subchapter III of RCRA. However, a state’s own hazard-

ous waste program affects only those actions brought

pursuant to subsection A, i.e., those that depend upon the

specific permit and notification requirements in subchap-

ter Ill. Subsection B, on the other hand, is more general,

and allows a direct cause of action against those whose

activities “may present an imminent and substantial

endangerment to health cr the environment”. Thus, a

subsection B suit does not depend on any specific sub-

chapter III provision, nor is it superseded by a state

program.

In this case, the district court did find that the federal

permit and notification requirements of subchapter III of

RCRA were superseded by the EPA-authorized state haz-

ardous waste program, and thus, that a direct action

pursuant to subsection A of the citizen suit provision to

App. 19

enforce § 6925(a) and § 6930(a), as alleged in count | of

plaintiffs’ complaint was not available. See Williamsburgh-

Around-the-Bridge Block Assn., et al. v. Jorling, et al., No. 89-

CV-471, slip op. at 10 (N.D.N.Y. August 21, 1989);

Thompson v. Thomas, 680 F.Supp. 1, 3 (D.D.C. 1987). How-

ever, the district court also found that count III, brought

pursuant to subsection B, alleged a claim “respecting a

violation of subchapter III” sufficient to trigger RCRA’s

exception to the delay period. We are not as confident as

the district court that count III was a claim “respecting a

violation of subchapter III,” although the defendant

apparently conceded that it was. See 733 F. Supp. at 27.

But count I does not cease to be sufficient to keep the

“hybrid” complaint in court simply because count | ulti-

mately proved to be unsuccessful. Hallstrom makes clear

that the notice determination is to be made at the outset,

and in this case count I survived defendant's motion for

summary judgment. For this reason, the exception to the

delay requirement for this “hybrid” complaint applies.

2. Commencement and Prosecution of an Action by the State

The city next argues that count II is prohibited by the

provisions of subsection B of § 6972(b)(1) (not to be

confused with § 6972(a)(1) discussed above), because the

state had already obtained an order from a state court

requiring compliance with the standards alleged to have

been violated. In this connection, the state had entered

into an Assurance of Discontinuance with the city, which

agreement was filed and entered as an order of the state

court, Subsection B of § 6972(b) does provide that if “the

Administrator or State has commenced and is diligently

App. 20

prosecuting a civil or criminal action * * * to require compli-

ance” (emphasis added), a citizen’s enforcement action

cannot be commenced.

We do not think that what the state did in this

situation falls within this provision. The Assurance in this

case was an agreement between the state and the city that

was simply filed and entered as an order of the state

court. No “civil or criminal action” was ever commenced

against the city to require compliance with federal regula-

tions. Even if the Assurance were to be viewed as an

action to cormpel compliance with federal regulations, the

state could not be held to have “diligently prosecut[ed]”

the action. The only thing the state ever did to try to

enforce the assurance was to bring an action to compel

compliance with provisions of the Assurance that

required the city to install a methane gas control system

and a leachate collection system. This action was not

taken until the deadline for installation had already

passed. The plaintiffs had already filed this action and

the district court had ordered the city to install opera-

tional systems before the city complied. Beyond this one

action, the state made no attempt to ensure compliance

with the rest of the Assurance; instead it allowed the city

numerous extensions. Given these facts, the state’s con-

duct in this case does not meet the level of diligence that

would trigger the prohibition against a citizen suit. See

Friends of the Earth v. Consolidated Rail Corp., 768 F.2d 57

(2d Cir. 1985).

3. CWA Exception to Delay Requirement

The city also claims that although an exception to the

60-day delay requirement exists under § 1365 of the CWA

App. 21

for actions respecting either § 1316 or § 1317(a) of the act,

neither exception is applicable in this case. The city is

correct because no § 1316 violation was alleged and

because § 1317 imposes obligations only on the EPA

administrator, not the defendant city. But the point is

irrelevant. Because, as we discussed earlier in this opin-

ion, the CWA claim was brought as part of a “hybrid”

complaint, which simultaneously alleged hazardous

waste violations under RCRA, there was no need to

observe the 60-day delay requirement of § 1365.

4. Content Requirements of Notice Provisions

Finally, the city argues that the plaintiffs’ notice did

not comply with the content requirements of the statutory

and regulatory notice provisions, thus mandating dis-

missal under Hallstrom. In the first place, Hallstrom did

not address such technical criteria. Moreover, the drastic

measure of dismissal should not be used at this stage of

the litigation.

As a practical matter, notice in a subchapter III case

accomplishes little other than notifying the appropriate

governmental agencies and the alleged violator that the

filing of a complaint by citizens is imminent. In contrast,

in a non-subchapter III case, specific notice gives the

appropriate governmental agencies an opportunity to act

and the alleged violator an opportunity to comply.

Because prior notice in suits involving hazardous wastes

is of minimal value, dismissal should not follow in this

case merely because plaintiffs failed to comply with some

very technical aspects of the notice provisions. To hold

otherwise not only would allow form to prevail over

App. 22

substance, but also would thwart congress’s purpose of

providing an exception to the strict notice requirements

in instances involving the heightened danger and imme-

diacy of hazardous wastes. See Hallstrom, 110 S.Ct. at 309.

Thus, the supplemental notice served in response to the

district court’s suggestion was sufficient.

B. Point Source

We next consider the issue of whether the district

court erred by concluding that the railroad culvert was a

point source for the discharge of pollutants and therefore

that the city was violating 33 U.S.C. § 1311(a). Pollutants

from the landfill directly enter Beaver Pond before flow-

ing through the culvert into the rest of the Intervale. Both

Beaver Pond and the rest of the Intervale are parts of the

marsh, and both are considered navigable waters for

purposes of the CWA. Thus, any pollutants in water

flowing through the culvert have already entered waters

of the United States before they flow through the culvert.

Section 1311(a) provides:

“Except as in compliance with this section and

sections 1312, 1316, 1317, 1328, 1342 and 1344 of

this title, the discharge of any pollutant by any

person shall be unlawful.” 33 U.S.C. § 1311(a).

Section 1362(12) defines “discharge of a pollutant” as

“any addition of any pollutant to navigable waters from

any point source”. Section 1362(14) defines a “point

source” as

“any discernible, confined and discrete convey-

ance including, but not limited to any pipe,

ditch, channel, tunnel, conduit, well, discrete

App. 23

fissure, container, rolling stock, concentrated

animal feeding operation, or vessel or other

floating craft, from which pollutants are or may

be discharged.”

The city contends that the railroad culvert was not a

point source for the discharge of pollutants. According to

the city, the definition of a point source incorporates both

physical and functional characteristics. Although it

acknowledges that the culvert has many of the physical

characteristics of a point source, it alleges that the culvert

does not meet the functional requirements, because the

culvert does not “add” pollutants to navigable waters.

Under this argument, pollutants would be “added” only

when they are introduced into navigable waters for the

first time.

The definition of a point source is to be broadly

interpreted:

The touchstone of the regulatory scheme is that

those needing to use the waters for waste distri-

bution must seek and obtain a permit to dis-

charge that waste, with the quantity and quality

of the discharge regulated. The concept of a

point source was designed to further this

scheme by embracing the broadest possible defi-

nition of any identifiable conveyance from

which pollutants might enter waters of the

United States.

United States v. Earth Sciences, Inc., 599 F.2d 368, 373 (10th

Cir. 1979). In United States v. Ottati & Goss, Inc., 630

F.Supp. 1361 (D.N.H. 1985), the court held that waste

materials which collected in a ditch and from there

entered a brook and ultimately entered navigable waters

violated § 1311(a). In United States v. Velsicol Chemical

App. 24

Corp., 438 F.Supp. 945, 947 (W.D. Tenn. 1976), the court

found discharges into the city sewer system, which, in

turn, emptied into the Mississippi River to be in violation

of the CWA. It rejected the argument that the pollutants

must be discharged directly into navigable waters. Id. The

fact that the defendant discharged pollutants through

conveyances owned by another party was irrelevant. The

court found that the defendant knew or should have

known that the city sewers led directly into the Missis-

sippi River and this was sufficient to satisfy the CWA

requirements. Id.

Given the intended broad reach of § 1311(a), we

agree with the district court that the Burlington culvert

was a point source. We also note that the definition of

“discharge of a pollutant” refers to “any point source”

without limitation. 33 U.S.C. § 1362 (12). Since the city’s

landfill caused pollutants to enter Beaver Pond, and since

these pollutants were then conveyed into the rest of the

Intervale by the railroad culvert, the district court’s con-

clusion that the city discharged pollutants into navigable

waters from a point source properly applied the statute to

findings that were not clearly erroneous.

C. Imminent and Substantial Endangerment

The city next challenges the district court’s conclu-

sion that the landfill may present an imminent and sub-

stantial endangerment to health or the environment. It

asserts that there is no evidence to support the court's

conclusion, because (1) the mere presence of chemicals

found on the list of toxins, without regard to their con-

centrations, does not evidence an endangerment; (2) the

ee ne eer]

App. 25

State environmental investigation concluded that the

landfill and its leachate did not present an imminent and

substantial endangerment to the environment; and (3)

plaintiffs’ expert, Dr. Reed, did not cite evidence in sup-

port of his opinion. We disagree with the city’s contention

that the district court erred.

Section 6972(a)(1)(B) authorizes citizens to sue an

Owner or operator of a disposal facility which has con-

tributed or is contributing to the past or present “disposal

of any solid or hazardous waste which may present an

imminent and substantial endangerment to health or the

environment.” 42 U.S.C. § 6972(a)(1)(B). When congress

enacted RCRA in 1976, it sought to close “the last remain-

ing loophole in environmental law, that of unregulated

land disposal of discarded materials and hazardous

wastes.” H.R.Rep. No. 1491, 94th Cong., 2d Sess. 4,

reprinted in 1976 U.S.C.C.A.N. 6238, 6241. RCRA’s waste

management requirements for disposal facilities are

designed not only to prevent, but also to mitigate, endan-

germents to public health and the environment. See id.

Significantly, congress used the word “may” to pref-

ace the standard of liability: “present an imminent and

substantial endangerment to health or the environment”.

United States v. Price, 668 F.2d 204, 213 (3d Cir. 1982);

United States v. Waste Industries, In¢., 734 F.2d 159, 166 (4th

Cir. 1984). This is “expansive language”, which is

“intended to confer upon the courts the authority to grant

affirmative equitable relief to the extent necessary to

eliminate any risk posed by toxic wastes.” Price, 668 F.2d

at 213-14 (emphasis added). See also Middlesex County

Board of Chosen Freeholders v. New Jersey, 645 F.Supp. 715,

App. 26

722 (D.N.J. 1986); United States v. Ottati & Goss, Inc., 630

F.Supp. 1361, 1393 (D.N.H. 1985).

The statute is “basically a prospective act designed to

prevent improper disposal of hazardous wastes in the

future”. Waste Industries, 734 F.2d at 166 (quoting H.R.

Committee Print No. 96-IFC 31, 96th Cong., 1st Sess. at ?2

(1979) (“the Eckhardt Report”)). It is not specifically lim-

ited to emergency-type situations. Waste Industries, 734

F.2d at 165. A finding of “imminency” does not require a

showing that actual harm will occur immediately so long

as the risk of threatened harm is present: “An ‘imminent

hazard’ may be declared at any point in a chain of events

which may ultimately result in harm to the public.” Envi-

ronmental Defense Fund v. Environmental Protection Agency,

465 F.2d 528, 535 (D.C. Cir. 1972) (quoting EPA Statement

of Reasons Underlying the Registration Decisions); Ottati

& Goss, 630 FSupp. at 1394. Imminence refers “to the

nature of the threat rather than identification of the time

when the endangerment initially arose.” Price, 668 F.2d at

213 (quoting the Eckhardt Report); Waste Industries, Inc.,

734 F2d at 166.

In addition, a finding that an activity may present an

imminent and substantial endangerment does not require

actual harm. United States v. Waste Industries, Inc., 734 F.2d

159 (4th Cir. 1984). Courts have consistently held that

“endangerment” means a threatened or potential harm

and does not require proof of actual harm. Ottati & Goss,

630 F.Supp. at 1394; United States v. Vertac Chemical Corp.,

489 FSupp. 870, 885 (E.D. Ark. 1980). See also Ethyl Corp.

v. EPA, 541 F.2d 1, 13 (D.C. Cir.) (en banc), cert. denied, 426

U.S. 941 (1976) (“[c]ase law and dictionary definition

Oe ie + - -

App. 27

agree that endanger means something less than actual

harm”).

The evidence presented at trial supports the district

court’s findings that the landfill presented an imminent

and substantial endangerment to health and the environ-

ment. The landfill had been leaking hazardous chemicals

into the soil, into groundwater beneath and to the north

of the landfill, and into surface waters of the Intervale

wetland. Even after installation and operation of the

leachate collection system in 1986, at least 10 percent of

the leachate, which contains toxic and hazardous chemi-

cals, was still migrating from the landfill into the ground-

water and surface water in and around the landfill.

Standard bioassay techniques revealed that leachate from

the landfill was toxic to freshwater aquatic life, including

at least one vertebrate in the food chain. At the time it

last assessed the landfill on September 21, 1988, the state

determined that “the Burlington Landfill has inadequate

separation distance to groundwater and inadequate isola-

tion distance to surface water. Monitoring of both ground

water and surface water has indicated impacts to water

quality.”

The amount and presence of toxic chemicals, includ-

ing lead, found in groundwater wells have increased over

time, and are bio-accumulating in the Intervale. Some of

these toxic chemicals, which continue to migrate from the

landfill, may have a dramatic, adverse impact on the food

chain in the Intervale. While the cattails in the Intervale

tend to be resistant to toxic chemicals, the marsh is a

“climax” system, i.e., cattails can stand in the face of

chemical insult, but when deterioration of them finally

App. 28

can be seen, they will degrade quickly, and that will be

“long pass the point * * * of saving the system.”

In addition, the district court based its finding on (1)

the fact that leachate which escaped from the landfill

contained chemicals and compounds found on the EPA

toxic list; (2) the fact that the state, on the basis of its

independent environmental investigation in and around

the landfill, had concluded that January 1, 1990, was an

appropriate closing date for the landfill; and (3) “other

evidence in this case, such as Dr. Reed’s expert opinion”.

Based on all of the foregoing, the district court prop-

erly concluded that there were sufficient circumstances

that may present an imminent and substantial endanger-

ment to health or the environment.

D. Attorneys’ Fees

We now consider the city’s claim that the district

court abused its discretion in awarding attorney’s fees.

The district court awarded total attorney's fees in the

amount of $247,534.37, which included a “lodestar”

amount of $198,027.50 plus a 25 percent risk/contingency

enhancement of $49,506.87. It also allowed $10,929.66 in

expenses, including expert fees.

The city argues first that the plaintiffs were not pre-

vailing parties or substantially prevailing parties, as

required by the statute. See 42 U.S.C. § 6792; 33 U.S.C.

§ 1365. Second, the city argues that, even if the plaintiffs

were prevailing parties, the district court erroneously

awarded their attorneys the full amount of the fee

requested, without a downward adjustment for limited

App. 29

success. Finally, the city argues that, at the very least, the

25 percent enhancement was error. We consider each of

these claims in turn.

Although we note that most of the cases cited involve

the Aftorney’s Civil Rights Fee Awards Act, 42 U.S.C.

§ 1988, the principles governing fee awards under that act

are applicable to the attorney’s fee provisions before us

because of their substantially similar language. See Penn-

sylvania v. Delaware Valley Citizens Council for Clean Air,

478 U.S. 546 (1986) (Delaware Valley 1).

1. Prevailing Party

Both RCRA and the CWA provide for an award of a

reasonable attorney’s fee “to the prevailing party or sub-

stantially prevailing party, whenever the court deter-

mines such an award is appropriate.” 42 U.S.C. § 6792; 33

U.S.C. § 1365. The first hurdle for plaintiffs seeking a fee

award is the requirement that they be prevailing parties.

Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). To qualify, a

plaintiff must “’succeed on any significant issue in litiga-

tion which achieves some of the benefit the parties sought

in bringing suit.” Id. (quoting Nadeau v. Helgemoe, 581

F.2d 275, 278-79 (1st Cir. 1978). See also Texas State

Teacher's Assn. v. Garland Independent School District, 109

S.Ct. 1486, 1493 (1989) (rejecting “central issue” test and

reaffirming “significant issue” test). This test has been

characterized as a “generous formulation” to get plain-

tiffs across the statutory threshold. Hensley, 461 U.S. at

433.

Even with this broad interpretation, however, a

plaintiff must “receive at least some relief on the merits of

App. 30

his claim before he can be said to prevail.” Hewitt v.

Helms, 482 U.S. 755, 760 (1987). He “must be able to point

to a resolution of the dispute which changes the legal

relationship between [himself] and the defendant.” Texas

Teachers, 109 S.Ct. at 1493; Hewitt, 482 U.S. at 760-61;

Rhodes v. Stewart, 109 S.Ct. 202, 203 (1988). “The touch-

stone of the prevailing party inquiry must be the material

alteration of the legal relationship of the parties in a

manner which Congress sought to promote in the fee

statute.” Texas Teachers, 109 S.Ct. at 1493. Thus, success on

legal claims that are “purely technical or de minimis”

should not result in fee awards. Id.

We do not accept, however, the city’s characterization

of the plaintiffs’ success in this case as “purely technical

or de minimis”. Under the Texas Teachers standard, the city

argues, we should not only compare the relief obtained

with the relief sought, but also, compare the city’s legal

obligations before commencement of litigation with its

obligations after the district court’s judgment. According

to the city, plaintiffs did nothing to change the status quo,

because its legal obligations had already been fixed by .

the Assurance of Discontinuance that was entered as an

order of the state court.

Although the district court’s judgment contains

essentially the same remedy as the Assurance, in that

both of them mandate closing the landfill by 1990, the

plaintiffs did “prevail” in this action, within the federal

statutory definition, because, in large part, it was the

pressure generated by the plaintiffs’ efforts here that

caused the city to actually close the landfill.

App. 31

The city had been granted extension after extension

postponing the initial deadline specified in the original

Assurance. The Amended Assurance was one in a series

of many. The city should have closed the landfill by

January 1, 1988, because it did not opt for a resource

recovery facility. Instead, the city obtained more exten-

sions and continued to operate the facility for two more

years. In fact, until trial in the court below of the federal

statutory claims, the city would not even concede either

that the decomposition of garbage in the landfill caused

the pre-December 27, 1985 explosive levels of methane

gas at the landfill boundary, or that leachate, which

escaped the leachate collection system, was migrating

beyond the landfill boundary.

Only by bringing this suit against the city were the

plaintiffs finally able to get from the city action as

opposed to mere promises. “The real value of the judicial

pronouncement * * * is in the settling of some dispute

which affects the behavior of the defendant towards the plain-

tiff.” Hewitt, 482 U.S. at 761 (emphasis in original). See also

Rhodes v. Stewart, 109 S.Ct. 202, 203 (1988). We are satis-

fied that the plaintiffs have achieved a significant vin-

dication of their rights under federal laws as a result of

this lawsuit. Gingras v. Lloyd, 740 F.2d 210, 212 (2d Cir.

1984).

Despite the city’s assertion that such reasoning is

speculation, we do not think that the district court's

finding that the plaintiffs “prevailed” under the circum-

stances of this action is clearly erroneous. A determina-

tion by the court that the city had violated provisions of

RCRA and the CWA constitutes a change in the legal

App. 32

relationship of the parties that goes beyond what was —

contained in the Assurance.

2. Fully Compensatory Lodestar

The city’s other arguments relate to “the degree of

the plaintiff's overall success [which] goes to the rea-

sonableness of the award under Hensley, not to the avail-

ability of a fee award vel non.” Gingras, 740 F.2d at 212.

The district court awarded plaintiffs’ attorneys the full

fee requested, which covered all time spent on all aspects

of the case. It found that both the hourly rate requested

and the hours expended were reasonable in light of the

complexity of the litigation. The city argues that the

district court erred by not limiting its award to an

amount commensurate with the plaintiffs’ limited suc-

cess. The city claims that the award erroneously included

time spent on the failed arguments on the RCRA permit-

ting and notification requirements; the failed effort to

have the landfill declared an open dump; the failed effort

to obtain a preliminary injunction; the unsuccessful inter-

locutory appeal to this court from the order denying the

preliminary injunction; and all work done on the pendent

state claims for which no fees may be awarded.

Because we think there is sufficient basis for the

district court’s findings, we hold that the court did not

abuse its discretion in awarding plaintiffs’ attorneys a

fully compensatory fee award. Once a party is deemed to

have prevailed, a “reasonable attorney's fee” is to be

determined in the exercise of the district court's discre-

tion. Hensley, 461 U.S. at 437.

a as

App. 33

The starting point for calculating a reasonable attor-

ney’s fee is “multiplying the number of hours reasonably

expended on the litigation times a reasonable hourly

rate.” Blum v. Stenson, 465 U.S. 886, 888 (1984); Hensley,

461 U.S. at 433. Adjustments to that initial estimate can be

made by considering the special circumstances of each

particular case. Blanchard v. Bergeron, 489 US. 87, 94

(1989); Blum, 465 U.S. at 888. However, there is a pre-

sumption that the lodestar figure is reasonable. Blum, 465

U.S. at 897.

Although “the most critical factor is the degree of

success obtained”, Hensley, 461 U.S. at 436, where a case

presents a common core of facts and related legal theo-

ries, district courts should “focus on the significance of

the overall relief obtained by the plaintiff in relation to

the hours reasonably expended on the litigation.” /d. at

435. See also Dominic v. Consolidated Edison Co. of New York,

Inc., 822 F.2d 1249, 1259 (2d Cir. 1987). When the issues

are intertwined factually, a fully compensatory fee award

is justified even where a plaintiff does not prevail on all

his claims or obtain all relief requested in his complaint.

Dominic, 822 F.2d at 1259.

When some reduction is called for, a district court

generally will attempt either “to identify specific hours

that should be eliminated or * * * simply reduc{e] the

award to account for the limited success of the plaintiff.”

Texas Teachers, 489 U.S. at 876 (citing Hensley, 461 US. at

437). However, reductions are not always required when

plaintiffs fail to succeed on every issue. Here, the district

could did not abuse its discretion by determining that the

complexity of this case justified a fully compensatory

award. Nor did the district court err by rejecting the

App. 34

city’s efforts to trivialize the plaintiffs’ success. There is

no mathematical formula by which to compare the total

number of issues with the number of issues prevailed

upon. Hensley, 461 U.S. at 436 n. 11. All of plaintiffs’

claims arose from the operation of a single facility and

were “based on related legal theories.” Dominic, 833 F.2d

at 1259. There was simply no need for the district court to

engage in an “artificial distribution” of attorney time

between successful and unsuccessful claims. Id. Its lode-

star award of $198,027.50 was, under the circumstances of

this case, fully justified.

3. 25 Percent Enhancement for Contingency/Risk

Finally, the city challenges the district court's grant of

a 25 percent enhancement to its fully compensatory

award of attorney's fees. Relying upon the contingency /

risk factor, the district court found that the enhancement

was justified under the circumstances of this case.

In Hensley, the Supreme Court stated that “in some

cases of exceptional success an enhanced award may be

justified.” Hensley, 461 US. at 435. Since this general

declaration, however, the Court has gradually narrowed

the circumstances under which an enhancement might be

appropriate. An enhancement is no longer justified on the

basis of factors such as the novelty of the issues, the

complexity of the litigation, the high quality of the repre-

sentation, or the number of people benefited. Blum, 465

U.S. at 898-900; see also Pennsylvania v. Delaware Valley

Citizens’ Council for Clean Air, 478 U.S. 546, 565 (1986)

(Delaware Valley 1). All these factors are considered sub-

sumed in the calculation of the lodestar, because they are

App. 35

deemed to be adequately reflected in the hourly rate and

the number of hours expended on the litigation. Blum,

465 U.S. at 898-900; see also Delaware Valley 1, 478 U.S. at

565.

The enhancement possibility suggested by Hensley

has thus eroded to the point where apparently the only

thing that may still justify an enhancement is the contin-

gency/risk factory. Pennsylvania v. Delaware Valley Citi-

zens’ Council for Clean Air, 483 U.S. 711 (1987) (“Delaware

Valley II”). In Delaware Valley II, the Court grappled with

the question of whether and when the risk of nonpay-

ment could be considered in granting an enhancement to

a fee award. The Court concluded that no upward adjust-

ment was justified in that case, but the issue sharply

divided the Court, resulting in an inconclusive 4-1-4 deci-

sion.

Four justices flatly rejected any multipliers or enhan-

cements to the lodestar figure to compensate for the risk

of loss under fee-shifting statutes. Delaware Valley ||, 483

U.S. at 725-26. Justice O’Connor concurred in finding that

no enhancement could be granted in the case, but refused

to flatly reject multipliers in all cases. Id. at 731 (O’Con-

nor, J., concurring). She felt that contingency enhance-

ments were appropriate in some circumstances, but in a

narrower class of cases than the dissent would allow. Id.

In addition to the requirements expressed by the dissent,

Justice O’Connor would also require that p’ :intiffs

“establish that without an adjustment for risk the prevail-

ing party ‘would have faced substantial difficulties in

finding counsel in the local or other relevant market.’” Id.

at 733. The other four justices held that courts could

award contingency enhancements if the plaintiff could

CO — —

App. 36

establish that the case was taken on a contingent basis

and that the plaintiff’s attorney had been unable to miti-

gate the risk of nonpayment either through extracting

some significant partial payment from the client or

through signing on for a large prospective damage

award. Id. at 735 (Blackmun, J., dissenting).

Given the outcome in Delaware Valley Il, we do not

view any one of the three separate opinions dispositive

on the issue before us today. We note that one of the

justices that heard the case is no longer on the Court.

While some courts view Justice O’Connor’s concurring

opinion as being the controlling law, see, e.g., Alberti v.

Klevenhagen, 1990 Westlaw 19646 (5th Cir. 1990); Spell v.

McDaniel; 824 F.2d 1380, 1404 (4th Cir. 1987); Rode v.

Dellarciprete, 892 F.2d 1177 (3d Cir. 1990); Student Public

Interest Research Group v. AT & T Bell Laboratories, 842 F.2d

1346, 1451 (3d Cir. 1988); McKenzie v. Kennickell, 875 F. 2d

330 (D.C. Cir. 1989); Save Our Cumberland Mountains, Inc.

v Hodel, 826 F.2d 43, 53 n. 6 (D.C. Cir. 1987); Lattimore v.

Oman Construction, 868 F.2d 437, 439 (11th Cir. 1989), we

disagree. Apart from the anomaly of the views of one

justice, with whom no one concurs being the law of the

land, where the Court is so divided on an issue and

where there is no majority opinion at ail, we conclude

that the issues of whether and when a contingency

enhancement is warranted are open issues for the

Supreme Court yet to decide. Thus, we are left with our

own holding in Friends of the Earth, v. Eastman Kodak Co.,

834 F.2d 295 (2d Cir. 1987), which affirmed the approach

we took in Lewis v. Coughlin, 801 F.2d 570, 576 (2d Cir

1986).

App. 37

Judge Billings, therefore, correctly relied on Friends of

the Earth, where we stated that the critical inquiry was

“whether ‘[w]jithout the possibility of a fee enhance-

ment * * * competent counsel might refuse to represent

clients thereby denying them effective access to the

courts.” Id. at 298 (quoting Lewis v. Coughlin, 801 F.2d

570, 576 (2d Cir. 1986)). Applying this standard, Judge

Billings found that under the fee arrangements here,

plaintiffs’ attorneys would not have been compensated at

all unless plaintiffs had prevailed, and that the risk of not

prevailing was substantial. After considering the mem-

oranda and affidavits on file, the court also found that

absent an opportunity for enhancement to balance the

risk of losing entirely, plaintiff would have faced substan-

tial difficulty in obtaining counsel of reasonable skill and

compétence for this difficult case in a complicated field of

law. In light of these findings, the district court deter-

mined that a 25 percent enhancement was appropriate to

attract competent counsel without providing a windfall.

Because the court's findings are not clearly erroneous, the

district court was justified in concluding that the plain-

tiffs’ attorneys were entitled to a 25 percent enhancement.

CONCLUSION

We affirm the judgment of the district court in all

respects.

App. 38

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCUIT

At a stated term of the United States Court of

Appeals for the Second Circuit, held at the United States

Courthouse in the City of New York on the 25th day of

October, one thousand nine hundred and ninety-one.

PRESENT:

HONORABLE JON O. NEWMAN,

HONORABLE GEORGE C. PRATT,

Circuit Judges,

HONORABLE THOMAS P. GRIESA,

District Judge for the Southern District of New

York, sitting by designation.

ERNEST DAGUE, SR., ERNEST

DAGUE, JR., BETTY DAGUE, and

ROSE A. BESSETTE,

Plaintiffs-Appellees,

No. 90-7544

; (Filed

= .

— Oct. 25, 1991)

CITY OF BURLINGTON,

Defendant-Appellant.

Plaintiffs-appellees have moved for attorneys’ fees

and expenses in connection with their successful opposi-

tion to defendant’s appeal from the judgment of the

App. 39

District Court of Vermont. By opinion filed June 12, 1991,

we affirmed the district court.

Plaintiffs seek attorneys’ fees for the appeal based on

a “lodestar” figure of $53,315, a claimed 25% risk enhan-

cement of $13,328.75, and expenses of $2,240.34. Defen-

dant has not opposed the motion, which was originally

filed on June 26, 1991.

After due deliberation, it is ORDERED, ADJUDGED,

end DECREED that the motion is granted to the extent of

allowing plaintiffs the “lodestar” figure of $53,315 and

the claimed expenses of $2,240.34, for a total of

$55,555.34. The amount requested for “risk enhancement”

is denied. The “risk” involved in defending an appeal is

not significant and, in the circumstances of this case, calls

for no enhancement to the “lodestar” amount.

/s/ Jon O. Newman

Jon O. Newman, U.S.C.J.

/s/ George C. Pratt

George C. Pratt, U.S.C.].

/s/ Thomas P. Griesa

Thomas P. Griesa, U.S.D.].

App. 40

UNITED STATES DISTRICT COURT

FOR THE

DISTRICT OF VERMONT

ERNEST DAGUE, SR.,

ERNEST DAGUE, JR.,

BETTY DAGUE and

ROSE A. BESSETTE

64 : Civil Action No.

CITY OF BURLINGTON 85-269

CITY OF BURLINGTON

Vv.

GENERAL ELECTRIC COMPANY, °

INC., BLODGETT COMPANY,

INC., EDLUND COMPANY,

INC., E.B. & A.C. WHITING

COMPANY and HAGAR

HARDWARE COMPANY

OPINION

I. Introduction

Plaintiffs bring this action against the City of Bur-

lington (“City”) for alleged violations of federal and com-

mon law arising out of operation of the Burlington

Municipal Disposal Grounds (“Landfill”) under the citi-

zen suit provisions of the Resource Conservation and

Recovery Act of 1976 (“RCRA”), 42 US.C. § 6972, and the

Clean Water Act (“CWA”), 33 US.C. § 1365, and under

common law theories of nuisance, negligence, strict lia-

bility and trespass. Plaintiffs seek injunctive relief, impo-

sition of civil penalties, compensatory and punitive

App. 41

damages, costs and attorney's fees. Plaintiffs allege that

the operation of the Landfill has generally harmed the

environment and has specifically damaged their adjoin-

ing properties by generating hazardous waste, methane

gas and wind-blown debris. After the action was initi-

ated, the City filed a third-party complaint against var-

ious companies that allegedly disposed of hazardous

wastes in the Landfill.

Currently before this Court is plaintiffs’ motion for

preliminary injunction. The City opposed plaintiffs’

motion. The companies neither appeared nor participated

in the preliminary injunction proceedings. The Hon. Jer-

ome J. Niedermeier, Magistrate for this district, consid-

ered the motion papers and issued a Report and

Recommendation in which he recommended that, while

the City is violating § 6945(a) of the RCRA and § 1311(a)

of the CWA, the motion to enjoin the City from operating

the Landfill be denied and that the City be ordered to

cause its gas ventilating and leachate collection systems

to become fully operational within sixty days of this

Order. Magistrate’s Report and Recommendation, Dague

v. City of Burlington, Civ. No. 85-269 (D.Vt. Feb. 21, 1986).

Objections to the Magistrate’s Report and Recommenda-

tion have been filed by plaintiffs, by the City, and by

third-party defendants General Electric Company, Inc.,

Hagar Hardware Company and‘E.B. & A.C. Whiting

Company. Based upon our analysis of the case at this

stage of the proceedings, we adopt the Magistrate’s

Report and Recommendation in toto. We DENY plaintiffs’

motion for preliminary injunction, but we ORDER the

City to bring the pollution preventive systems into full

operation within sixty days from the date of this Order

App. 42

Il. Findings of Fact

The Magistrate’s Report contains thirteen and one

half pages of detailed and extensive findings of fact. For

the purposes of this preliminary injunction motion only,

see University of Texas v. Camenisch, 451 U.S. 390, 395

(1981), we adopt these findings of fact and incorporate

them herein. Because our findings are binding upon this

preliminary injunction proceeding only, the objections to

the findings posed by defendant City and third-party

defendants General Electric Company, Inc., Hagar Hard-

ware Company and E.B. & A.C. Whiting Company are

rendered inoperative. With regard to plaintiffs’ objections

it should be noted that “[t]he Plaintiffs agree with almost

all the findings of fact made by the Magistrate.” Plain-

tiffs’ Objections to Magistrate’s Report and Recommenda-

tion (“Plaintiffs’ Objections”) at p.5. Plaintiffs raise seven

specific objections to the Magistrate’s findings of fact. See

Plaintiff’s Objections, Attachment A. We find these objec-

tions to be de minimus and inconsequential. Accordingly

this Court will not alter the findings of fact as set out in

the Magistrate’s Report and incorporated herein.

Ill. Discussion

The proposed conclusions contained within the Mag-

istrate’s Report were thoughtful and well-reasoned. With

the additions discussed below, we adopt the Magistrate’s

proposed conclusions in toto. As the Magistrate noted,

these conclusions are for the purposes of the preliminary

injunction motion only. See Magistrate’s Report at p. 16;

University of Texas v. Camenisch, supra at 395. For that

reason, the only objections which we need consider at

App. 43

this juncture are those substantive objections by plain-

tiffs. These objections are discussed below, seriatim.

A. Permit and Notice Requirements of RCRA -

§§ 6925(a) and 6930(a)

In order to bring a citizen suit under RCRA, plaintiffs

must demonstrate that the defendant

1. is “in violation of any permit, standard, reg-

ulation, condition, requirement, prohibition

or order which has become effective pur-

suant to [42 U.S.C. § 6901, et seq.];” or

2. “has contributed or is contributing to the

past or present handling, storage, treatment,

transportation or disposal of any solid or

hazardous waste which may present an

imminent and substantial endangerment to

health or the environment.”

42 U.S.C. § 6972(a). Plaintiffs alleged in their preliminary

injunction motion that the City violated the permit and

notice requirements of 42 U.S.C. §§ 6925(a) and 6930(a),

respectively. The Magistrate proposed a contrary conclu-

sion, and plaintiffs now object.

As the Magistrate noted, 42 U.S.C. § 6925(a) prohibits

the “treatment, storage or disposal” of hazardous waste

subsequent to November 19, 1980, except in accordance

with an operating permit from the Environmental Protec-

tion Agency (“EPA”). Magistrate’s Report at p. 22. Citing

United States v. Waste Industries, Inc., 734 F.2d 159 (4th Cir.

1984), the Magistrate found that the leaching of hazard-

ous waste from the Landfill constitutes “disposal” within

the meaning of § 6925(a). Since the Landfill has produced

leachate containing hazardous contaminants subsequent

App. 44

to November 19, 1980, the City ordinarily would be

required to obtain an operating permit from the EPA

under the provisions of § 6925(a). It was undisputed in

this proceeding that the City never applied to the EPA for

such a permit, nor received from either the EPA or the

State of Vermont a permit to store or dispose of hazard-

ous waste.

The Magistrate found, however, that the City was not

operating the Landfill in violation of § 6925(a) because it

was operating the Landfill in complete compliance with

the State of Vermont permit program which was autho-

rized by the EPA pursuant to § 6926. The State obtained

various phases of interim authorization and received

final authorization from the EPA to run the program in

January, 1985. The evidence at the preliminary injunction

hearing showed that the City was not required to obtain a

permit for the Landfill under the state’s hazardous waste

management program, which is run by the Agency of

Environmental Conservation (“AEC”):

The AEC’s position is that only facilities pres-

ently handling hazardous wastes require a per-

mit; those leaching hazardous waste [like the

Landfill] do not. Mr. Maier [from the AEC] testi-

fied that he believed the State’s interpretation is

consistent with the federal regulations.

Magistrate’s Report at p. 26.

Plaintiffs strenuously object to the conclusion that

because the city is operating within Vermont's regulatory

scheme, it is in compliance with § 6925(a). Plaintiffs claim

that the State’s hazardous waste permit program is incon-

sistent with the federal permit program, and that this

Court should therefore find the City in violation of

App. 45

§ 6925(a) as a matter of law. In particular, plaintiffs claim

that by its failure to interpret the term “disposal” to mean

movement of waste after it has been placed in a landfill,

the AEC “tries to eliminate the ‘leaking’ of hazardous

waste from RCRA’s definition of disposal.” Plaintiffs’

Objections at p. 10. Citing United States v. Waste Industries,

Inc., 734 F.2d 159, 165 (4th Cir. 1984), plaintiffs assert that

the AEC thus “creates ‘a gaping hole in the overall pro-

tection of the environment envisioned by Congress.’ ” Id.

Plaintiffs correctly point out that equivalency

between a state program and the Federal program is one

of the criteria that must be met before the EPA will

authorize the state program to operate in lieu of RCRA’s

Hazardous Waste Management subchapter, 42 U.S.C.

§§ 6921-6934. Contrary to plaintiffs’ assertions, however,

the overall regulatory scheme for protection of the envi-

ronment envisioned by Congress clearly indicates that

the determination of consistency between the federal

scheme and Vermont's authorized program is one for the

EPA, not the courts, to make. For instance, in order to

obtain authorization for a state program, the state is to

submit an application to the EPA, and after a preliminary

indication of whether such program is expected to be

approved and an opportunity to be heard, the EPA will

publish findings regarding the suitability of the state

program. 42 U.S.C. § 6926(b). The state program is autho-

rized to operate in lieu of the Federal program under 42

U.S.C. §§ 6921-6934, including issuing permits for dis-

posal of hazardous waste,

unless, within ninety days following submission

of the application the [EPA] Administrator noti-

fies sad State that such program may not be

App. 46

authorized, and, within ninety days following

such notice and after opportunity for public

hearing, he finds that (1) such State program is

not equivalent to the Federal program under

this subchapter, [42 U.S.C. §§ 6921-6934]; (2)

such program is not consistent with the Federal

or State programs applicable in other States, or

(3) such program does not provide adequate

enforcement of compliance with the require-

ments of this subchapter.

Id. (emphasis supplied). Similarly, after determining at a

public hearing that a state is not administering and

enforcing its authorized program in accordance with

§ 6926 and after notifying the state of the same, it is the

EPA which shall withdraw authorization of the state pro-

gram. 42 U.S.C. § 6926(e).

For these reasons, we hold that, given EPA’s current

authorization of Vermont's hazardous waste management

program and Vermont's interpretation of the permit

requirements, we cannot say at this stage of the proceed-

ings that the City is violating § 6925(a).

Similarly, we hold that the City has not violated the

notification requirements of 42 U.S.C. § 6930(a). Section

6930(a) provides that as of August 19, 1980,

any person... operating a facility for the treat-

ment, storage, or disposal of [hazardous waste]

shall file with the Administrator (or with the

States having authorized hazardous waste per-

mit programs under Section 6926 of this title) a

notification stating the location and general

description of such activity and the identified or

listed hazardous wastes handled by such per-

son... No identified or listed hazardous waste

App. 47

- . » May be transported, treated, stored or dis-

posed of unless notification has been given as

required under this subsection.

42 U.S.C. § 6930(a).

As the Magistrate stated, Vermont’s EPA-authorized

hazardous waste management program obviates the need

for the City to file notification with the EPA; if notifica-

tion need be filed, it should be filed with the State of

Vermont. Magistrate’s Report at 26. It is undisputed that

the City never filed notification with Vermont. As with

the permit requirements discussed above, the state is of

the opinion that the notification requirement is prospec-

tive in nature and therefore does not apply to the City’s

pre-August 19, 1980 activities. Plaintiffs claim that the

State’s interpretation is inconsistent with the require-

ments of § 6930(a). If an inconsistency exists, however, it

is a matter to be taken up by the EPA which, pursuant to

42 U.S.C. § 6926(e), may withdraw authorization of the

State program after holding a public hearing. See supra.

Accordingly, we hold that at this stage of the proceeding

the City’s failure to file a hazardous waste notification

does not violate § 6930(a) of the RCRA.

B. Open Dump under RCRA - § 6945(a)

The Magistrate proposed that, while the Landfill was

not an open dump, it was operating in violation of two

open-dumping practices in violation of § 6945(a): the

discharge of pollutants into waters of the United States

without a National Pollutant Discharge Elimination Per-

mit (which also constitutes the violation of the CWA, 33

U.S.C. § 1311, discussed below); and the generation of

App. 48

explosive gases that exceed the lower explosive limit at

the property boundary. See Magistrate’s Report at p.

28-31. The Magistrate concluded, however, that the land-

fill was not an open dump because: (1) the Landfill was

not included in an EPA-published inventory of all dis-

posal sites or facilities which, pursuant to 42 U-S.C.

§ 6945(b), are open dumps for purposes of RCRA; and (2)

the city has been operating under a Sanitary Landfill

Certification issued by the State of Vermont on January

25, 1982 that specifically establishes a certification period

of January 30, 1982 through January 30, 1987. Magistrate's

Report at 27-28.

Plaintiffs object to the Magistrate’s proposed conclu-

sion that the Landfill is not an open dump. Section 6945

of RCRA and the regulations promulgated thereunder

require either the upgrading of open dumps! to sanitary

landfills by September 13, 1984 or, failing that, the closure

of the open dump. Plaintiffs maintain that by permitting

the Landfill the opportunity to operate and upgrade to a

sanitary landfill after September 13, 1984, the State’s cer-

tification “transgressed the five-year deadline mandated

by Congress in 42 U.S.C. § 6945(a).” Plaintiffs Objections

at p. 17.

An examination of the statutory scheme specified by

Congress reveals that plaintiffs’ assertion must fall. The

five-year deadline established by Congress for converting

open dumps to sanitary landfills, set forth in 42 U.S.C.

§ 6945(a), applies only to open dumps listed in the inven-

tory described in § 6945(b).? Far from being “merely an

administrative tool,” Plaintiffs’ Objections at p.3, the EPA

inventory required under § 6945(b) is the mechanism

mandated by Congress for determining whether a site is

App. 49

an “open dump” for the purposes of the RCRA, including

§ 6945(a)’s five-year deadline for upgrading. See 42 U.S.C.

§ 6945(b). Because the Landfill is not on the EPA inven-

tory of open dumps, and is currently operating under a

Vermont Sanitary Landfill Certificate, we hold that the

Landfill is not an open dump within the meaning of

RCRA.

C. Point Source under CWA - § 1362(14)

Plaintiffs brought their CWA claim pursuant to 33

U.S.C. § 1365(a)(1), which provides for such actions

against those who violate an effluent standard or limita-

tion effective under the CWA. One such limitation pro-

hibits “the discharge [into navigable waters of the United

States] of any pollutant by any person.” 33 U.S.C.

§ 1311(a). “Discharge of a pollutant” means “any addition

of any pollutant to navigable waters from any point

source.” 33 U.S.C. § 1362(12). “Point source” is defined as

“any discernible, confined and discrete conveyance.” 33

U.S.C. § 1362(14). The Magistrate concluded, as does this

Court, that the Landfill is in violation of § 1311(a) because

it has, without a permit, discharged pollutants into navi-

gable waters from a “point source,” to wit, the railroad

embankment culvert on the northern border of the Land-

fill. See Magistrate’s Report at p. 40.

Plaintiffs challenge the Magistrate’s proposed conclu-

sion that, while the railroad culvert is a “point source”

within the meaning of the CWA, the land mass constitut-

ing the Landfill itself is not. Plaintiffs’ claim that the

Landfill is: “essentially a container full of hazardous

wastes”; “no different than a Storage lagoon or huge

App. 50

storage drum”; “like a vessel or other floating craft.”

Plaintiffs’ Objections at pp. 22-23.

The Landfill may have certain characteristics in com-

mon with these conveyances; however, it is simply not

one of them. The apposite caselaw is in accord. In O'Leary

v. Moyer’s Landfill, Inc., 523 F.Supp. 642 (E.D.Pa. 1981), the

court held what “the surface run-off of contaminated

waters, once channeled or collected, constitutes discharge by

a point source.” Id. at 655 (emphasis supplied). In the

absence of any “discernible, confined and discrete con-

veyance” creating such a channeling or collection device

in the present case, we hold that the Landfill itself does

not meet the definition of “point source” as set forth in 33

U.S.C. § 1362(14).

D. Imminent and Substantial Endangerment under

RCRA — § 6972(a)(1)(B).

Plaintiffs next object to the Magistrate's proposed

conclusion that there is not sufficiently persuasive evi-

dence before the Court to hold that the Landfill “may

present an imminent and substantial endangerment” to

the environment. Plaintiffs have brought this citizen suit

in part under 42 U.S.C. § 6972(a)(1)(B), which allows any

person to sue an owner or operator of a landfill “which

may present an imminent and substantial endangerment

to health or the environment.” Plaintiffs claim that there

is sufficiently persuasive evidence, including the findings

that the City is violating two open-dumping criteria in its

operation of the Landfill, to conclude that the standard

set forth in § 6972(a)(1)(B) has been met.

App. 51

This Court cannot agree. Given the conflicting expert

testimony regarding the imminent and substaniial danger

posed by the Landfill and the disputed reliability of other

evidence presented at the hearing, which included bio-

assay results and water samples, this Court does not now

have sufficiently persuasive evidence before it to hold

that the Landfill may present an imminent and substan-

tial danger to the environment.

IV. Conclusion

The remainder of plaintiffs’ objections relate to their

claim that the Magistrate’s proposed relief is incommen-

surate with the environmental law violations committed

by the City in its operations of the Landfill. While there is

sufficient evidence at this preliminary stage of the pro-

ceeding to find the City in violation of 42 U.S.C. § 6945(a)

and 33 U.S.C. § 1311(a), we are of the opinion that it

would be inappropriate to enjoin operation of the Land-

fill until a trial on the merits. Even if the Landfill were

closed, methane gas will continue to be generated by

decomposing trash. Similarly, discharge of pollutants

through the railroad culvert will not be stopped by clos-

ing the Landfill. Furthermore, since the commencement

of this action the City has installed a gas ventilating

System that appears to be effective in preventing methane

gas from migrating off the Landfill and onto the plain-

tiffs’ property. The city is also currently installing a leach-

ate collection system which is designed to collect 80 to 90

percent of the leachate. Accordingly, we do not find it

appropriate to order either immediate closure of the

Landfill pending trial or any of the other injunctive relief

App. 52

sought by plaintiffs based on the violations of 42 U.S.C.

§ 6945(a) and 33 U.S.C. § 1311{a).

The accompanying Order includes an order that the

City cause the gas ventilating system and leachate collec-

tion system to become fully operational within sixty days.

These preventive systems will alleviate serious problems

that have impacted and will impact the surrounding envi-

ronment. A determination of what, if any, further relief is

appropriate must await a full trial on the merits.

ORDER

For the reasons set forth in the accompanying Opin-

ion, IT IS HEREBY ORDERED that: (1) plaintiffs request

for preliminary injunctive relief is DENIED and (2) the

City cause the Landfill’s gas ventilating system and

leachate collection system to become fully operational on

or before May 26, 1986 which is sixty days from the date

of this Order.

SO ORDERED.

Dated at Rutland in the District of Vermont this 26th

day of March, 1986.

/s/ Franklin S. Billings

Franklin S. Billings

District Judge

App. 53

FOOTNOTES

' An open dump is defined as:

any facility or site where solid waste is disposed of

which is not a sanitary landfill which meets the

criteria promulgated under [42 U.S.C. 6944] and

which is not a facility for the disposal of hazardous

waste.

42 U.S.C. § 6903(14).

2 Section 6945(a), entitled “Closing or upgrading of exis-

ting open dumps,” provides:

Upon promulgation of criteria under [42 U.S.C.

§ 6907(a)(3)], any solid waste management practice

or disposal of solid waste or hazardous waste which

constitutes the open dumping of solid wastes or

hazardous waste is prohibited, except in the case of

any practice or disposal of solid waste under a time-

table or schedule for compliance established under

this section. For purposes of complying with section

6943(a)(2) and 6943(a)(3) of this title, each State plan

shall contain a requirement that all existing disposal

facilities or sites for solid waste in such State which

are open dumps listed in the inventory under subsection

(b) of this section shall comply with such measures as

may be promulgated by the Administrator to elimi-

nate health hazards and minimize potential health

hazards.

42 US.C. § 6945(a)(emphasis supplied).

Section 6943(a)(3) provides that, at a minimum, a state

solid waste management plan “shall provide for the closing or

upgrading of all existing open dumps within the State pur-

suant to the requirements” of § 6945. See 42 U.S.C. § 6943(a)(3).

App. 54

UNITED STATES DISTRICT COURT

FOR THE

DISTRICT OF VERMONT

ERNEST DAGUE, SR.,

ERNEST DAGUE, JR.,

BETTY DAGUE and : Civil Action

ROSE A. BESSETTE - No. 85-269

v. : Filed

CITY OF BURLINGTON

February 5, 1987

GENERAL ELECTRIC COMPANY,

INC., BLODGETT COMPANY,

INC., EDLUND COMPANY,

INC., E.B. & A.C. WHITING

COMPANY and HAGAR

HARDWARE COMPANY

ORDER

l. Introduction

On October 30, 1986, United States Magistrate Jerome

J. Neidermeier submitted to this Court a Report and

Recommendation regarding the disposition of a number

of motions in this case. First, the City of Burlington (“the

City”) has moved, pursuant to Fed.R.Civ.P. 19 and 21, to

join as necessary and indispensable parties the companies

named as third-party defendants in the third-party com-

plaint: General Electric Company, Blodgett Company,

Inc., Edlund Company, E.B. & A.C. Whiting Company,

inc., and Hagar Hardware Company (“third-party defen-

dants”). Second, the third-party defendants, with the

App. 55

exception of Edlund Company, Inc., have moved to dis-

miss the third-party complaint on several grounds. For

the reasons stated in the discussion below, the Court

adopts the Report and Recommendation of the Magistrate

as to the City’s Rule 19 motion and recommits to the

Magistrate the third-party defendants’ motions to dis-

miss.

II. City’s Rule 19 Motion

The City has moved to join the third-party defen-

dants under Rule 19 as necessary and indispensable par-

ties. The City’s argument is that plaintiffs, acting as

private attorneys general pursuant to the Resource Con-

servation and Recovery Act (“RCRA”) 42 U.S.C.A. 6901,

et seq, should not be allowed to pick and choose among

potential defendants. The City argues that the third party

defendants are ultimately responsible for whatever haz-

ardous wastes might have been brought to the landfill

and therefore must be parties to the lawsuit. Magistrate’s

Report and Recommendation, Dague v. City of Burlington,

Civ. No. 85-269 (D.Vt. Oct. 30, 1986).

The Magistrate denied the motion, holding that third-

party defendants are not indispensable parties under

Rule 19. Id. at 3-4. He explained that Rule 19 provides

that a party must be joined if “in his absence complete

relief cannot be accorded among those already parties,”

Fed.R.Civ.P. 19(a)(1). “In this case, the City can provide

all the relief that the plaintiffs seek: locating and remov-

ing all the hazardous waste at the landfill.” Report and

Recommendation, Oct. 30, 1986 at 3. The Magistrate

added that the City actually seeks indemnification from

App. 56

the third-party defendants ard that is more properly the

subject of a third-party ac‘ion than of joinder of addi-

tional defendants in this case. Id.

As authority for his decision the Magistrate cites two

cases. In United States v. Price, 523 F.Supp. 1055, 1075

(D.N.J. 1981) aff'd 688 F.2d 204 (3d Cir. 1982), an action

was brought pursuant to RCRA § 7003, 42 U.S.C. § 6973

against the owners of a landfill for injunctive relief to

remedy hazards created by chemical dumping. The

owners moved to compel the joinder of the chemical

companies that deposited waste in the landfill and the

transporters that hauled the waste. Although the Price

court “agree[d] with defendants that equitable consider-

ations support the addition of the generators and trans-

porters as defendants.” it denied the motion.

The traditional rule is that one tort feasor may

not compel the joinder of other alleged joint

tortfeasors. 7 Wright & Miller, [Federal Practice

and Procedure] at § 1623. Rule 19 did not depart

from that long-established principle. Advisory

Committee’s Note to Rule 19, 39 F.R.D. 89, 91

(1966); see American Motor Inns, Inc. v. Holiday

Inns, Inc., 521 F.2d 1230, 1244-45 n. 42 (3d Cir.

1975); Herpich v. Wallace, 430 F.2d 792, 817 (Sth

Cir. 1970).

523 F.Supp. at 1075. In United States v. Conservation Chemi-

cal Co., 589 FSupp. 59 (W.D.Mo. 1984) the Court, citing

Price with approval, denied defendant waste-generators’

motion to dismiss because the plaintiff had failed to join

other contributing waste-generators. Id. at 63. The court

noted that other waste generators might be permissive

parties who could be joined, pursuant to Rule 20, at the

App. 57

plaintiff's option Id. Such parties were not, however, nec-

essary or indispensable.

Agreeing with the analysis in the two cases dis-

cussed, the Magistrate denied the City’s Rule 19 motion.

The City did not object to the Magistrate’s Report and

Recommendation.

The Magistrate’s analysis is sound, and we adopt it.

The City’s Rule 19 motion is DENIED.

lll. Third-Party Defendants’ Motion to Dismiss

Before the Magistrate, third party defendants moved

to dismiss the third-party complaint. The Magistrate dis-

cussed the motions and recommended that they be

denied. Report and Recommendation, October 30, 1986 at

6-12. Third-party defendants, with the exception of

Blodgett Company, Inc., have filed objections to the Mag-

istrate’s Report and Recommendation. In these objections

and the memoranda filed in support thereof, third-party

defendants have both clarified the grounds for their ini-

tial motions to dismiss and raised additional challenges

concerning standing.

There are now essentially five grounds claimed by

third party defendants for dismissal:

(1) that the original plaintiffs lack standing;

(2) that the City lacks standing to bring the

third-party complaint;

(3) that the plaintiff's notice to the City in the

original action was inadequate;

(4) that the City’s notice to third-party defen-

dants was inadequate; and

App. 58

(5) that the City has failed to state a claim

upon which relief can be granted against

third-party defendants in that there is no

right to indemnification under RCRA.

The City has filed neither its own objections to the

Magistrate’s Report and Recommendation nor any

response to the third-party defendants’ objections. The

City’s initial Memorandum in Opposition to Motion to

Dismiss addressed only the notice issues raised by third-

party defendants. It is now clear that third-party defen-

dants raise additional grounds for dismissal which appar-

ently were not fully briefed and argued before the

Magistrate. Pursuant to 28 U.S.C. § 636(b)(1), therefore,

the matter is recommitted to the Magistrate for additional

briefing and consideration of the third-party defendants’

motions to dismiss.

The City’s Rule 19 motion is DENIED. The third-

party defendants’ motions to dismiss are recommitted to

the Magistrate for additional consideration.

SO ORDERED

Dated at Rutland in the District of Vermont this 5th

day of February, 1987.

/s/ Franklin S. Billings, Jr.

Franklin S. Billings, Jr.

District Judge

App. 59

Ernest DAGUE, Sr., Ernest Dague, Jr.,

and Betty Dague

CITY OF BURLINGTON.

Civ. No. 85-269.

United States District Court,

D. Vermont.

Oct. 16, 1989.

FINDINGS OF FACT, OPINION

AND ORDER

BILLINGS, Chief Judge.

Plaintiffs bring this action against the City of Bur-

lington (“City”) for alleged violations of state and federal

law arising out of the operation of the Burlington Munici-

pal Disposal Grounds (“Landfill”). Plaintiffs allege that

the operation of the Landfill has generally harmed the

environment, and has specifically damaged their adjoin-

ing properties, by the generation of methane gas, wind-

blown debris and hazardous waste. The ten-count com-

plaint seeks injunctive relief, imposition of civil penalties,

compensatory and punitive damages, costs and attor-

ney’s fees.

App. 60

Trial by court was held during the period of May

8-11, 1989 on defendant's statutory liability, and plain-

tiffs’ relief, if any, under Counts I through V of the

complaint. These counts are brought pursuant to the citi-

zen suit provision of the Resource Conservation and

Recovery Act (“RCRA”), 42 U.S.C. § 6972 (Counts I-III);

the citizen suit provision of the Clean Water Act

(“CWA”), 33 U.S.C. § 1365 (Count IV); and the Vermont

Groundwater Protection Law, 10 Vt.Stat.Ann. § 1410

(Count V). Liability under the remaining common law

claims, Counts VI through X, and the issue of damages,

will be tried by jury at a later date.

For purposes of this Opinion, we presume familiarity

with prior Opinions, Orders, and Reports and Recom-

mendations in this case.

PROCEDURAL BACKGROUND

Plaintiffs filed their complaint in this matter on Octo-

ber 9, 1985. The case was initially referred to the Hon.

Jerome J. Niedermeier, United State Magistrate for the

District of Vermont, to hear and determine plaintiffs’

motion for a preliminary injunction. Plaintiffs were seek-

ing immediate closure of the Landfill. The Magistrate

heard oral arguments on the motion for a preliminary

injunction on October 28, 1985, at which time the City

also moved to dismiss the complaint. Several more hear-

ings were held between November 1985 and January 1986

on plaintiffs’ motion for preliminary injunction and the

City’s motion to dismiss.

In February of 1986, the Magistrate issued a Report

and Recommendation finding, for the purpose of the

App. 61

motion for a Preliminary injunction, that the City was in

violation of RCRA, 42 US.C. § 6945(a), and the CWA, 33

U.S.C. § 1311(a). However, the Magistrate recommended

that the Court deny plaintiffs’ motion at that time and

order the City to take certain specific steps toward reme-

dying the violations. This Court adopted the Magistrate’s

Report and Recommendation in toto. Accordingly, we

denied plaintiff's motion for a preliminary injunction and

ordered the City, within sixty days, to make fully opera-

tional both a gas ventilation System and a leachate collec-

tion system for the Landfill. The City complied with the

Court’s Opinion and Order, dated March 26, 1986.

Early in this case, the City also filed third-party

complaints against several other parties. The City subse-

quently attempted to join these third-party defendants as

co-defendants. Meanwhile, the third-party defendants

sought to dismiss the third-party complaints or, alter-

natively, to sever the third-party action from the primary

case. On February 7, 1987 and September 3, 1987, respec-

tively, the Court denied the City’s motion to join defen-

dants and granted the third-party defendants’ motion to

dismiss. The City sought, but was denied, certification

from the Court to allow appeal of this decision as a final

partial judgment.

On May 19, 1988, the Court granted the City’s motion

to separate the statutory claims for trial by court, from

the common law claims and damages for trial by jury.

Thereafter, cross motions for summary judgment and par-

tial summary judgment, as well as motions on evidenti-

ary matters, were heard and decided by the Court. By the

spring of 1989, discovery was completed and the court

claims were scheduled for trial.

App. 62

At the close of the trial, on May 11, 1989, the Court

allowed the parties until June 16, 1989 to file proposed

findings of fact and conclusions of law. Plaintiffs filed

memoranda in this regard on June 16, 1989; defendant

filed its memoranda on June 19, 1989.

FINDINGS OF FACT

Prior to the commencement of trial, plaintiffs filed a

stipulation of facts, document # 204, a copy of which is

attached as Appendix A. At trial, the parties agreed to

incorporate the stipulations into the record, with a mod-

ification of Stipulation # 13. Accordingly, the Court incor-

porates herein the facts stipulated by the parties

(hereinafter “Stipulations”), except that Stipulation # 13

now reads:

13. The Landfill is a highly saturated area.

In consideration of the evidence presented at trial,

the exhibits and the parties’ proposed findings, the Court

adds the following facts:

The State of Vermont has authorization from the

United States Environmental Protection Agency (EPA),

pursuant to 42 U.S.C. § 6926, to operate its own solid and

hazardous waste program; the State obtained various

phases of interim authorization beginning in 1982, and

received final authorization in January 1985. Under state

statute, the legislature has delegated responsibility for

the administration of Vermont's hazardous waste, solid

waste and water control laws to the Secretary of the

Agency of Natural Resources (formerly the Agency of

App. 63

Environmental Conservation). The current Secretary, Jon-

athan Lash, has delegated some of this responsibility to

the Commissioner of the Department of Environmental

Conservation, but remains ultimately in charge of these

programs.

The State takes the position that the Burlington Land-

fill is a solid waste landfill, not a hazardous waste storage

or disposal facility. Accordingly, the State does not

require the City to have a hazardous waste permit to

operate the Landfill.

The January 31, 1985 Assurance of Discontinuance!

was filed with the Chittenden Superior Court and was

entered as an Order of that court on March 7, 1985. On

December 18, 1985, the State of Vermont brought an

action against the City in Chittenden Superior Court to

enforce the March 7 Order. The State sought compliance

with the provisions requiring the City to install a leachate

collection system by September 1, 1985, and a methane

control system by December 2, 1985. These systems did

not become operational until March of 1986.

The January 31, 1985 assurance also imposed a clo-

sure option on the City - either choose another landfil]

site and close the Burlington Landfill by January 1, 1988,

or begin operating a resource recovery facility (RRF) and

close the Landfill by January 1, 1990.

The City never notified the State in writing of its

choice of the two closure options despite its obligation to

' See Stipulation # 109

App. 64

do so in writing.2 The City’s Board of Aldermen did,

however, adopt a resolution to pursue the RRF option.

During the period from 1980 through early 1983, the City

developed plans to construct a composting and recycling

facility, with the State’s cooperation and approval. As a

result, the January 1990 closure date became effective.

Subsequently, the Mayor of Burlington vetoed the alder-

manic resolution electing the RRF option.

In addition to the various assurances of discontin-

uance and amendments thereto entered into by the City

and the State, the City also received Transitional Opera-

tional Authority (TOA) from the State to operate the

Landfill. The State granted the City such authority by

letter dated July 31, 1987.3 The State has also performed

its own environmental assessment of the Landfill.

2 See Stipulation # 116.

3 The letter from the State’s Department of Environmental

Conservation to the City of Burlington, granting transitional

authorization for the operation of the Landfill Pursuant to Act

78, states in pertinent part:

Transitional Authorization is hereby granted

City of Burlington for continued operation of Bur-

lington Landfill in accord with the previously issued

Assurance of Discontinuance by this Agency. Transi-

tional Operation Authority will remain in force until

a comprehensive review of the facility required by 10

V.S.A. Section 6605a has been completed and until a

decision regarding recertification of the facility

under new standards required by the Act has been

made.

Act 78 of the 1987 Legislative Session requires

comprehensive assessment of all disposal facilities in

(Continued on following page)

App. 65

Secretary Lash testified that the State conducted sub-

stantial monitoring and testing of the area in and around

the Landfill, particularly the Intervale, during the years

1985 and 1986. The State collected both leachate data and

biological data. As a result of its investigation, the State

concluded that the Landfill did not, at that time, present

an imminent and substantial endangerment to human

health or the environment. However, the State also deter-

mined that January 1, 1990 was an appropriate closure

date in view of the environmental concerns yresented by

the Landfill. According to Secretary Lash, the State still

intends to enforce the January 1, 1990 closure date.

Craig Heindel, a hydrogeologist with the firm of

Wagner, Heindel & Noyes, conducted studies of the sur-

face water and groundwater flow regime in and around

the Landfill. According to his studies, the flow of ground-

water and surface water in the vicinity of the Landfill is

horizontally from south to north. It is highly unlikely that

any groundwater flows in a souther

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