Town Must Face Citizen Suit Over Toxic Sludge

(CN) - A Massachusetts town may be liable for discharging sludge tainted with arsenic, lead and other toxins onto privately owned land, a federal judge ruled.

James Berberian owns property on Bancroft Street in Andover, Mass., a town of 30,000 just north of Boston.

While cleaning a drinking-water supply tank on Bancroft Street in November 2010, the town pumped silt-laden water out of the tank onto the road, which overflowed onto Berberian's property.

Town-sponsored tests later showed that the discharge contained high levels of iron and manganese, but an independent expert whom Berberian hired found that the sludge contained arsenic, cadmium, chromium, nickel and lead.

Since the water on Berberian's property drains into a tributary of the Shawsheen River, which flows into the Merrimack River, Berberian said the waterways on his land are "waters of the United States," subject to the protection of the Clean Water Act.

Berberian filed suit claiming that sludge still remains on his property, though Andover cleaned up some of the discharged sediment.

U.S. Magistrate Judge Robert Collings refused to dismiss the case last week, finding that Berberian has standing to sue the town as an individual.

"The town contends that Berberian's complaint deals only with the discharges related to the cleaning of the water tank on Bancroft Road that occurred over the course of three days in November, 2010," the decision states. "Consequently, from the defendant's perspective, the plaintiff's claim involves strictly past violations that cannot be countenanced in a citizen's suit.

"If the town were correct in its factual assertions, its legal position would have merit. However, the allegations of the complaint are not limited to the events of November, 2010. Berberian contends that 'the [Bancroft Street water] tank overflow is tied into the catch basin system, routinely discharging material into waterways and protected wetlands resource areas on the property.'" (Emphasis in original.)

Berberian says the tank overfills have caused the discharge of thousands of gallons of water containing sediment into the catch basin system on Bancroft Street. As such, he claims that his complaint meets the Supreme Court standard of "a good-faith allegation of continuous or intermittent violation."

Berberian has also distinguished his case from ongoing prosecution that Andover faces from the Massachusetts Department of Environmental Protection over the Bancroft Street discharges, Collings found.

While the state action concerns the discharges that occurred from Nov. 10, 2010, to Nov. 12, 2010, when the Bancroft Street tank was being cleaned, Berberian is suing, at least in part, over the alleged "unpermitted connection and ongoing discharges," according to the ruling.

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