ELR Citation: ELR 21281
No(s). 3:94CV1891(JBA) (D. Conn. Mar 24, 1997)

The court holds that landowners of a parcel adjoining a municipal landfill may proceed with their claims under the Resource Conservation and Recovery Act, the Federal Water Pollution Control Act (FWPCA), and state tort law against a municipality that allegedly allowed the disposal of hazardous wastes and substances at the landfill, allegedly resulting in soil and water contamination beneath plaintiffs' land. The court first rejects the municipality's contention that the FWPCA claim must be dismissed because the landowners have not alleged that the municipality discharged pollutants from a point source. The landowners allege that the groundwater pollution caused by the landfill has created a plume of contamination that passes through their land and discharges into a river on that land, and that the river, in turn, passes through point sources such as roadway culverts further downstream. The court holds that a more complete factual record is necessary in order to determine the proximity of the landfill to the river, as well as the locations of the roadway culverts, in order to determine whether the culverts combined with the river constitute a point source under Dague v. City of Burlington, 21 ELR 21133 (2d Cir. 1991). Under the liberal pleading standards of Fed. R. Civ. P. 8, and in light of the similarity of the landowners' allegations to Dague, the court refuses to dismiss this count.

The court next refuses to dismiss the landowners' claim that contamination of their land from operation of the landfill deprived them the reasonable use and enjoyment of their land, thus constituting an illegal taking. The court holds that the inverse condemnation claim is not premature, even though it was brought in federal court. Connecticut law does not require an inverse condemnation proceeding to be brought, in the first instance, in state superior court. Further, the court holds that factual questions exist regarding whether absence of drinking water on the land renders it unusable for any reasonable and proper purpose, and whether economic use of the land is, for all practical purposes, destroyed. Next, the court holds that disposal of hazardous and toxic wastes at a landfill may constitute an abnormally dangerous or ultrahazardous activity sufficient to maintain a cause-of-action for strict liability under Connecticut law. Hazardous materials are an instrumentality capable of producing harm, and the circumstances and conditions of their disposal into a municipal landfill, irrespective of a lawful purpose or due care, involve a substantial risk of probable injury to the person or property of others. The court also holds that the landowners may put forth evidence of the extent to which the municipality allegedly allowed and encouraged disposal of hazardous materials at the landfill, as well as the toxic nature of the hazardous wastes allegedly disposed of there. Accordingly, the court refuses to dismiss the strict liability claim.

The court dismisses the landowners' claim for reimbursement of remediation costs under state law, because the landowners have not alleged that they have taken any action to remediate the alleged contamination of their property, or that they have expended funds for such remediation. The court then holds that although the landfill is subject to a lease and operating agreement with a private entity and is ultimately managed and controlled by a regional waste management committee, the landowners' failure to join these parties does not require dismissal of their injunctive claims. The parties' interests in the removal and remediation of hazardous wastes at the landfill are purely financial, and granting any injunctive relief would not impair the parties' ability to protect their respective financial interests.

Counsel for Plaintiffs
Diane W. Whitney
LeBoeuf, Lamb, Greene & MacRae
Goodwin Sq.
225 Asylum St., 13th Fl., Hartford CT 06103
(860) 293-3500

Counsel for Defendants
Ben M. Krowicki
Bingham, Dana & Gould
100 Pearl St., Hartford CT 06103
(860) 244-3770