COMMONWEALTH OF MASSACHUSETTS
SUPERIOR COURT
CIVIL ACTION NO. 2006-0790-C
COMMONWEALTH OF MASSACHUSETTS,
Plaintiff,
v.
COMPLAINT FOR
CIVIL CONTEMPT
NEW VENTURES ASSOCIATES LLC,
Defendant and Cross-Claimant,
v.
NEWBURYPORT CITY COUNCIL, ET AL,
Cross-Claim Defendants.
INTRODUCTION(see previous post)
PARTIES (not posting them; we all know who they are)
FACTS AND STATEMENT OF THE CONTEMPT
Procedural History
7. On February 23, 2006, the Commonwealth commenced the underlying action against defendant New Ventures, seeking injunctive relief and civil penalties for alleged violations of the Clean Air Act and the Solid Waste Management Act.
8. On October 20, 2006, the Court (Spurlock, J.) issued a Preliminary Injunction in this action, which was amended by order dated November 1,2006 (Spurlock, J.), and again on February 22, 2007 (Sanders, J.). The Preliminary Injunction, as amended (the "Order"), required that New Ventures install and operate air pollution control equipment and undertake other measures to prevent nuisance conditions and potential public health impacts arising from the release of noxious hydrogen sulfide gas and other landfill gas.
9. On September 20,2007, the Court (McLaughlin, J.) issued another injunctive order ("Supplemental Order") requiring that New Ventures place a temporary cover consisting of acceptable clay-like soils to a depth of at least one foot over an area of the Landfill known as the "Phase IA Area," and replace the tarps over this temporary cover in the Phase IA Area.
10. A true and complete copy of the Court's October 20,2006 Order, as amended by orders dated November 1,2006 and February 22, 2007, is attached as "Exhibit 1." A true and complete copy of the Court's Supplemental Order of September 20,2007 is attached as "Exhibit 2."
Relevant Requirements of the Order and Supplemental Order
11. Paragraph 1 (d) and Appendix A (Landfill Gas Control Protocol) of the Order require New Ventures to install and continuously operate a landfill gas pretreatment fitering system, consisting of three separate vessels housing pretreatment media and an enclosed flare, to control hydrogen sulfide and other landfill gas emissions to prevent nuisance odors and protect the health and safety of area business and residents living in the vicinity of the LandfiL.
12. Paragraph 1 (b) and Appendix A, Section D, of the Order require New Ventures to operate the pretreatment system so that the maximum concentration of hydrogen sulfide gas flowing into the enclosed flare does not exceed a performance standard of 1.01 lbs/h (pounds per hour). Paragraph 1 (b) and Appendix A, Section D, of the Order also require that the pretreatment system remove at least ninety-five percent (95%) of hydrogen sulfide from the landfill gas flowing into the enclosed flare, with a performance standard requiring that hydrogen sulfide removal not fall below the 95% threshold for any two hours over the course of any twenty- four (24) hour period.
13. Paragraph 1 (d) and Appendix A of the Order require New Ventures to continuously operate the pretreatment system and enclosed flare twenty-four (24) hours per day, seven (7) days per week.
14. Paragraphs 1 (d) and Appendix A, Section I of the Order require New Ventures to provide the MassDEP with the daily landfill gas sampling data, including the concentration of hydrogen sulfide gas flowing into and out of the pretreatment system, along with the flow rate of landfill gas entering the enclosed flare in order to demonstrate compliance with the maximum 1.01 lb/hr hydrogen sulfide concentration and minimum 95% hydrogen sulfide removal performance standards for gas flowing into the enclosed flare.
15. Paragraph l(d) and Appendix A, Section C of the Order require New Ventures to contract with a qualified Massachusetts Registered Professional Engineer (the "Engineer") to coordinate, oversee, and monitor the operation and effectiveness of the landfill gas system and the other measures required for controllng hydrogen sulfide and other ambient gas emissions from the landfill, including compliance with the maximum 1.01 lb/hr hydrogen sulfide concentration and minimum 95% hydrogen sulfide removal for landfill gas flowing into the enclosed flare. Paragraph 1 (d) and Appendix A also require that the Engineer conduct weekly inspections of the landfill gas control system and provide a Weekly Status Report to the Department within two (2) working days of conducting each inspection.
16. Paragraph 11 of the Order requires that the pretreatment system, including all three pretreatment vessels, remain in-place and completely intact at the Site until such time as MassDEP determines, in writing, that the pretreatment system is no longer necessary or required by the Clean Air Act or the Solid Waste Management Act.
17. Paragraph 1(1) and Appendix A, Section H of the Order requires that New Ventures continuously staff the Landfill twenty-four (24) hours per day, seven (7) days per week.
Paragraph 1 (1) and Appendix A also require that New Ventures respond to all odor complaints received from residents in the vicinity of the Facility and then report these complaints to MassDEP.
18. Paragraph 1 (1) and Appendix A, Section F of the Order require New Ventures to maintain and operate a meteorological station at the landfill and continuously collect data on the wind speed and direction, barometric pressure, and temperature.
19. Paragraphs 1 (u) of the Order requires New Ventures to remove odiferous leachate that has entered the Landfill's storm water basins.
20. Paragraphs 1 (v) of the Order requires New Ventures to maintain, improve and expand the Landfill's leachate control system in compliance with plans submitted to and approved by the MassDEP pursuant to the MassDEP's 2005 Administrative Consent Order with Penalty ("2005 ACOP"), which is attached to the Order as Exhibit 3. The final leachate control plans required by the 2005 ACOP as approved by MassDEP require that New Ventures maintain leachate tanks at less than seventy-five percent (75% ) of their capacity at all times, measure and record the leachate level in each leachate tank immediately prior to each pumping, maintain daily logs containing the date, time, liquid level and volume of leachate pumped from each tank; and submit the daily logs to the MassDEP by the 15th day of each month for the preceding month.
21. Paragraph 1 G) and 1 (v) and Appendix B of the Order require New Ventures to place and maintain tarps over the Construction and Demolition Material ("C&D Material") at the landfill in areas not covered by the landfill cap including the landfill access road. In addition, the Supplemental Order requires New Ventures to place and maintain one foot of clay-like soil covered with tarps over the C&D Material in the Phase IA Area of the Facility to control the generation and release of odiferous leachate and landfill gas from the landfiL.
22. In the event that the placement of C&D Material for use as landfill grading or shaping material has been shut down at the Landfill, Paragraph 13 of the Order requires that New Ventures continue to comply with other requirements of the Order, applicable MassDEP administrative orders, and 310 C.M.R. 19.000 et seq.
23. Because of ongoing violations of Order and Supplemental order detailed below, MassDEP ordered that New Ventures shut down all placement of C&D Material at the LandfilL. This shut down is stil in effect.
24. Among the requirements of the Order that must be complied with in the face of a shut-down ofC&D Material placement, New Ventures shall, without limitation, continue to operate the permanent landfill gas control system, including the pretreatment system and enclosed flare in compliance with the performance standards in Appendix A of the Order, continue to staff the Landfill twenty four (24) hours a day, seven days a week, and continue to control and manage leachate collection and releases at the Landfill.
25. Among the requirements of 3 10 C.M.R. 19.000 et seq. with which New Ventures must continue to comply in the face of a shut-down of C&D Material placement at the Landfill are maintenance of the integrity of the drainage structures so as to prevent erosion, as required by
310 C.M.R. 19.130 (19)(b), and ensuring that any siltation due to erosion does not migrate offsite, as required by 310 C.M.R. 19.130 (20).
New Ventures' Recent Violations of the Order and Supplemental Order and the August 26, 2008 Notice of Violations
26. In May, 2008, the Commonwealth and New Ventures reached a full settlement of this action. That settlement agreement, among other things, would make permanent the relevant injunctive portions of the Order and set a new, sequenced schedule for closing the landfiL. New Ventures has refused, however, to sign and fie that settlement unless and until the City of Newburyport approves an increase in the landfill internal volume (or "airspace") pursuant to a Host Community Agreement ("HCA") it entered into with New Ventures in 2002. On June 26, 2008, this Court allowed New Ventures' motion to join the City of Newburyport as a necessary party to this action, and the City fied counterclaims. Although New Ventures and the City have been in negotiations to resolve their competing claims, litigation of those claims is proceeding, with summary judgment papers scheduled to be filed in January, 2009.
27. With settlement of this action on hold and litigation of New Ventures' cross-claims and the City's counterclaims proceeding, significant compliance issues began to surface at the landfill over the summer, and there has been a recent upturn in odor complaints from area residents. See Affidavit of David C. Adams, Environmental Engineer iv in the Bureau of Waste Prevention, Solid Waste Management Section, MassDEP Northeast Regional Offce ("Adams Aff."), irir 8-64; Affidavit of John A. Carrigan, Chief of the Solid Waste Section, Bureau of Waste Prevention, MassDEP Northeast Regional Office ("Carrigan Aff."), irir 18-25.
28. On August 26,2008, the MassDEP notified New Ventures of multiple violations of the Order and Supplemental Order observed by MassDEP personnel at the Landfill between June 3, 2008 and August 13,2008 (the "Notice"). A true and complete copy of the Notice is attached as "Exhibit 3." The Notice demanded that New Ventures return to compliance and remedy the violations detailed in paragraphs 29 through 41, below. New Ventures responded to the Notice by letter dated September 10, 2008. Atrue and complete copy of this response is attached as "Exhibit 4." In New Ventures' September 10, 2008 letter and subsequent discussions with the Commonwealth, New Ventures asserts that the current problems at the landfill should be addressed as part of a closure plan filed with a settlement agreement once the current litigation of its cross claims against the City are resolved. That resolution could be several weeks or several months away. Remedy ofthe violations detailed in the paragraphs below can not be put on hold while litigation of this action proceeds, particularly when these violations contribute to nuisance conditions that threaten the public health and welfare.
29. Seven separate inspections of the Facility by MassDEP investigators on June 3, 4, and 6, July 18 and 29, and August 17 and 18,2008, revealed that only two of the required three pretreatment vessels were on-Site at the Landfill. See Adams Aff., ir 47; Carrigan Aff., irir 2l(b), 24, 25; Notice, ir 10.
30. Landfill inspections by MassDEP investigators on July 17 and 29, 2008, revealed that the enclosed flare, a critical part of the landfil's air pollution control system, was not operating. Adams Aff., ir 45, Notice, ir 11.
31. Review by MassDEP staff of daily landfill gas collection system monitoring forms submitted by New Ventures revealed that on at least fifteen (15) days between July 8 and July 28, 2008, hydrogen sulfide gas had entered the enclosed flare in excess of 1.01 lbs/hr on at least two occasions during a twenty-four (24) hour period. Adams Aff., irir 28 - 31; Carrigan Aff., ir 20, 2l(a); Notice, ir 1.
32. Landfill inspections by MassDEP investigators on August 17 and 18, 2008, revealed that New Ventures was not operating the pretreatment system to remove at least 95% of hydrogen sulfide from landfill gas before it reached the enclosed flare, but instead allowed landfill gas to enter the enclosed flare with only 63% and 38%, respectively, of hydrogen sulfide removed. Adams Aff., irir 28,33; Carrigan Aff, irir 21(a),24, 25; Notice, ir 3. In addition, New Ventures operated the pretreatment system to allow the concentration of hydrogen sulfide gas flowing into the enclosed flare on those occasions to exceed the performance standard of 1.01 lbs/hr twice during a twenty-four hour period. ¡d.
33. Review by MassDEP investigators of daily landfill gas collection system monitoring forms submitted by New Ventures, along with review of complaints about odors from the landfill received by MassDEP from residents in the vicinity of the Facility revealed that on July 14 and 17,2008, and August 7,8 and 11, and 13,2008, New Ventures failed to respond to residents' odor complaints or report them to MassDEP. Carrigan Aff., ir 19(a); Adams Aff., ir 55; Notice, ir 7.
34. Review by MassDEP investigators of New Ventures' submissions revealed that from at least July 28,2008, through the date of the Notice, New Ventures failed to provide MassDEP with the required daily landfill gas sampling data for the landfill gas control system, including the hydrogen sulfide gas data for the pretreatment system and enclosed flare necessary to demonstrate the system was in compliance with the maximum 1.01 lb/hr hydrogen sulfide concentration and minimum 95% hydrogen sulfide removal performance standards for landfill gas flowing into the enclosed flare. Carrigan Aff., ir 1 9(b); Notice, ir 2.
35. Review by MassDEP investigators of New Ventures' submissions revealed that the Landfill Engineer failed to submit the required Weekly Status Reports to MassDEP from March 8,2008 through the date of the Notice. Carrigan Aff., ir 19(d); Notice, ir 12.
36. Landfill inspections by MassDEP investigators on July 17 and 29, 2008 and August 18, 2008 revealed that New Ventures failed to remove odiferous leachate released from the landfill that had migrated to the wetlands abutting the Facility. Adams Aff., irir 18 - 20; Notice, ir 4.
37. Landfill inspections by MassDEP investigators on July 17 and 29 and August 18, 2008, revealed that New Ventures had not been pumping at least four of the five Landfill leachate tanks and that all tanks were either at full or nearly full capacity. Adams Aff., irir 10 - 12; Carrigan Aff., ir 2l(g); Notice, ir 4.
38. Landfill inspections by MassDEP investigators on July 17 and 29,2008 and August 17 and 18, 2008, revealed that New Ventures failed to place and maintain tarps or tarp covered clay on the south slope of the Phase I Area, and the portions of the Landfill known as the "Phase IIA Area" and "Phase III Area." Adams Aff., irir 57 - 62; Carrigan Aff., ir 21(e); Notice, ir 5. In addition, New Ventures had failed to cover the clay-like soil on the portion of the Landfill known as the "Phase IA Area" with tarps on those dates. Adams Aff., ir 62.
39. Review by MassDEP investigators of New Ventures' submissions, along with Landfill inspections on July 17 and 29, 2008, and August 17 and 18, 2008, revealed that the New Ventures had ,failed to continuously collect the required meteorological data at the landfill and to properly maintain the meteorological station at the landfill from the time of a power outage on or
about June 27, 2008 and the date of the Notice. Adams Aff., irir 23,24,26,27; Carrigan Aff, ir 19(c); Notice, ir 8.
40. Landfill inspections on July 17 and 29, 2008, and August 17 and 18, 2008, revealed that the New Ventures had failed to repair the digital flow meter on the enclosed flare at the Landfill since the power outage on or about June 27, 2008. Adams Aff., irir 23 - 25; Carrigan Aff.; ir 19 (f).
41. Landfill inspections on June 3, 4 and 26, 2008, July 17 and 29, 2008, and August 18, 2008, revealed that New Ventures had failed to maintain the berm and temporary storm water controls at the Landfill. Included among these stormwater control violation were New Ventures'
failure to repair erosion gulles, failure to repair and maintain the northern storm water down chute on the western side of the perimeter berm, failure to mitigate the erosion of silt from the south slope of the Landfill off-site on to Crow Lane, and failure to maintain the hay bale and silt fences along the Landfill perimeter and abutting wetlands. Adams Aff., irir 36,38,39,40; Notice, ir 6.
Current Contempt
42. Since September 2008, New Ventures has failed to remedy nearly all of the violations cited in the August 26, 2008 Notice, as detailed in paragraphs 43 through 56, below.
43. Four separate inspections of the Landfill by MassDEP investigators on September 12 and 25, October 2, and November 3, 2008 revealed that New Ventures stil had not equipped the pretreatment system with the required third pretreatment vesseL. Adams Aff., ir 47. In addition, during inspections on October 2 and November 3, 2008, MassDEP investigators discovered,air leaking into the two treatment vessels on-Site, indicating that they were not being
maintained as air tight. Adams Aff., irir 33, 34.
44. Landfill inspections by MassDEP investigators on September 25, October 2, and November 3, 2008, revealed that New Ventures was not operating the pretreatment system to remove at least 95% of hydrogen sulfide from landfill gas before it reached the enclosed flare, but instead allowed landfill gas to enter the enclosed flare with only 87%, 86%, and 62%, respectively, of hydrogen sulfide removed. Adams Aff., irir 33 - 35. In addition, New Ventures was operating the pretreatment system on September 25 and October 2,2008 to allow the concentration of hydrogen sulfide gas to enter the enclosed flare at a rate in excess of 4.5 lbs/hr, exceeding the 1.01 lbs/hr performance standard on those occasions by more than 445%. Adams Aff., ir 35.
45. Review by MassDEP investigators of daily landfill gas collection system monitoring forms submitted by New Ventures, along with review of complaints about odors from the landfill received by MassDEP from residents living in the vicinity of the Landfill, revealed that New Ventures had continued to ignore and failed to respond to residents' odor complains or report them to MassDEP, including odor complaints made on September 3,5,11,12, and 16,21,25 and 28, and October 3, 4,13, 18, 19,21,23,2008. Carrigan Aff.,ir 19(a).
46. Review by MassDEP investigators of New Ventures' submissions revealed that New Ventures was stil not providing MassDEP with the required daily landfill gas sampling data for the landfill gas control system, including the hydrogen sulfide gas data for the pretreatment system and enclosed flare. Carrigan Aff., ir 1 9(b). New Ventures has failed to provide the landfill gas sampling data necessary to demonstrate that the system is in compliance with the maximum 1.01 lb/hr hydrogen sulfide concentration and minimum 95% hydrogen sulfide removal performance standards for landfill gas flowing into the enclosed flare from at least July 28,2008, through the date of this Complaint. ¡d.
47. Review by MassDEP investigators of New Ventures' submissions revealed that the Landfill Engineer was stil not submitting the required Weekly Status Reports to the MassDEP. Carrigan Aff., ir 19(d). New Ventures has failed to submit Weekly Status Reports for the Landfill from March 8, 2008 through the date of this Complaint. ¡d.
48. Landfill inspections on October 2,2008 revealed that New Ventures had failed to remove odiferous leachate from the temporary stormwater basin behind the Facility office trailer. Adams Aff., ir 16.
49. Inspections of the LandfiII by MassDEP investigators on September 25, October 2, and November 3, 2008 revealed that New Ventures had stil not pumped at least four of the five Landfill leachate tanks, all of which were either at full or nearly full capacity. Adams Aff., irir 10,
12,13.
50. Landfill inspections on September 12 and 25, October 2, and November 3,2008, revealed that foul smelling leachate had been released from overflowing leachate collection tanks and had migrated across landfill access roadways and into stormwater collection basins. Adams Contempt Aff., irir 12, 14 - 17.
51. During inspections of the Landfill on September 12 and 25, October 2, and November 3, 2008, New Ventures refused or failed to provide MassDEP with leachate pumping logs for the LandfiL. Adams Aff., irir 51, 52.
52. Landfill inspections on September 12 and 25, October 2, and November 3, 2008, revealed that New Ventures failed to place and maintain tarps or tarp covered clay on the south slope of the Phase I Area, the Phase IIA Area, or the Phase II Area. Adams Aff., irir 57-62. In addition, New Ventures had failed to cover the clay-like soil on the Phase IA Area with tarps on those dates. Adams Aff., ir 62.
53. Review by MassDEP investigators of New Ventures' submissions, along with Landfill inspections on September 12 and 25, October 2, and November 3,2008, revealed that New Ventures was stil not collecting the required meteorological data at the landfill or properly maintaining the meteorological station at the landfill from the time of a power outage on or about June 27, 2008. Adams Aff., irir 23,24,26,27; Carrigan Aff, ir 19(c).
54. Landfill inspections on September 12 and 25, October 2, and November 3, 2008, revealed that the New Ventures had stil not repaired the digital flow meter on the enclosed flare at the landfill since the power outage on or about June 27. Adams Aff., irir 23 - 25.
55. Landfill inspections on September 25, October 2, and November 3, 2008, revealed that New Ventures had failed to maintain the berm and temporary storm water controls at the landfiL. Adams Aff., irir 37 - 40. Included among these stormwater control violations were New Ventures' failure to repair erosion gulles, failure to repair and maintain the northern storm water down chute on the western side of the perimeter berm, failure to mitigate the erosion of silt from the south slope of the landfill off-site on to Crow Lane, and failure to maintain the hay bale and silt fences along the Landfill perimeter and abutting wetlands. ¡d.
56. Landfill inspections on October 2 and November 3, 2008, revealed that New Ventures has failed to maintain the hay bale and silt fences along the perimeter of the landfill and abutting wetlands. Adams Aff., ir 42.
COUNT I
Violation of the Order and Supplemental Order
57. The Commonwealth repeats and realleges each and every allegation contained in paragraphs 1 - 56.
58. By failing to equip the landfill gas control system with three pretreatment vessels, and by failing to ensure that one or more pretreatment vessels are maintained as airtight, New Ventures violated and continues to violate Paragraphs l(d), 11, 13, and Appendix A of the Order
in contempt of Court.
59. By failing to operate the pretreatment system to consistently remove at least 95% of the hydrogen sulfide from landfill gas before it flows into the enclosed flare, New Ventures violated and continues to violate Paragraphs l(d), 13, and Appendix A, Section D, of the Order in contempt of Court.
60. By failing to operate the pretreatment system to consistently prevent hydrogen sulfide concentrations over 1.01 lb/hr from flowing from the pretreatment system into the enclosed flare, New Ventures violated and continues to violate Paragraphs 1 (d), 13, and Appendix A, Section D, of the Order in contempt of Court
61. By failing to provide the MassDEP with daily landfill gas system sampling data, including data on the concentration of hydrogen sulfide gas entering the pretreatment system and enclosed flare necessary to demonstrate compliance with the required performance standards, New Ventures has violated and continues to violate Paragraphs l(d), 1(1), 13, and Appendix A,
Section I, of the Order in contempt of Court.
62. By failing to respond to and report to MassDEP odor complaints received from residents living in the vicinity of the Facility, New Ventures violated Paragraphs 1(1), 13, and Appendix A, Sections H and I, of the Order in contempt of Court.
63. By failing to staff the Facility twenty-four (24) hours per day, seven (7) days per week, New Ventures violated and continues to violate Paragraphs 1(1), 13, and Appendix A, Section H, of the Order in contempt of Court.
64. By failing to maintain leachate collection tanks at less than 75% of their volume capacity, New Ventures violated and continues to violate Paragraph 1 (v) of the Order and MassDEP's 2005 ACOP in contempt of Court.
65. By allowing leachate collection tanks to overflow and release foul smelling leachate into stormwater collection basins and the wetlands abutting the Landfill, New Ventures violated and continues to violate Paragraph 1 (v) of the Order and MassDEP's 2005 ACOP in contempt of Court.
66. By failing to maintain and provide to MassDEP the required leachate daily log reports containing the date, time, liquid level and volume of leachate pumped from each leachate tank, New Ventures violated and continues to violate Paragraphs l(v) and 13 of the Order and MassDEP's 2005 ACOP in contempt of Court.
67. By failing to place and maintain tarps or tarp covered clay on the south slope of the Phase I Area, the Phase IIA Area, and Phase III Area, and by failing to cover the clay-like soil on the Phase IA Area with tarps, New Ventures violated and continues to violate Paragraphs 1 (j) and 1 (v) of the Order and Paragraph 1 of the Supplemental Order in contempt of Court.
68. By failing to submit the required Engineer's Weekly Status Reports to MassDEP, New Ventures violated and continues to violate Paragraph 1 (d) and Appendix A, Section C, of the Order in Contempt of the Court.
69. By failing to continuously collect the required meteorological data at the Landfill, New Ventures violated and continues to violate Paragraphs 1 (d), 1 (1), and Appendix A, Section F, of the Order in contempt of Court.
70. By failing to repair the digital flow meter on the enclosed flare at the Landfill, New Ventures violated and continues to violate Paragraphs 10 and 13 of the Order in contempt of Court.
71. By failing to maintain the berm and temporary storm water controls at the landfill in compliance with 310 CMR 1 9.043(5)(b) and 310 CMR 1 9.130(19)(b), New Ventures violated and continues to violate Paragraph 13 of the Order in contempt of Court.
72. By failing to maintain the hay bale and silt fences along the Landfill perimeter and abutting wetlands as required by 310 CMR 19.043(5)(b), 310 CMR 19.130(19)(b), and 310 CMR 19.130(20), New Ventures violated and continues to violate Paragraph 13 of the Order in contempt of Court.
RELIEF SOUGHT
Wherefore, the Commonwealth respectfully requests that this Court:
A. Issue a Summons pursuant to Mass. R. Civ. P. 65.3(d) directing the parties to appear before the Court within ten (10) days for a hearing on the merits of this Complaint;
B. Find New Ventures in contempt of this Court's Order and Supplemental Order;
C. Order that New Ventures immediately comply with all provisions of this Court's Order and Supplemental Order;
D. Award the Commonwealth its costs and attorneys' fees incurred in prosecuting this Contempt action; and
E. Order and Grant such other relief as the Court deems just and proper.
Respectfully submitted,
etc.
Dated: November 12,2008
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