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HomeMy WebLinkAbout14- WJA ltr to City 5 19 14WESTERN JUSTICE ASSOCIATES, PLLC TRIAL LAWYERS FOR PEOPLE AND THE ENVIRONMENT 303 W. MENDENHALL, SUITE 1 ♦ BOZEMAN, MT 59715 PH: 406.587.1900 # FAX: 406.587.1901 W W W. W ESTERNJ USTICELAW.COM JORY C. RUGGIERO, ESQ. DOMENIC A. COSSI, ESQ. May 16, 2014 r,(a VI Greg Sullivan Cin- Attorney Ci::' 1:f l7E-'.1Zt: Yeln.:11 121 N. Rouse Bozeman, MT 59715 Tracy Stone -Manning Director Montana Department of Environmental Quality Lee Metcalf Building, 1520 E. Sixth Avenue P.O. Box 200901 Relena, MT 59620-0901 BE. Bridger Subdivision, Phase III— Contamination from Landfill Dear Mr. Sullivan and Ms. Stone -Manning: This law firm represents the following property owners within Phase III of the Bridger Creek Subdivision ("Phase III"): William and Katharine Beebe Christina Bauer and Kurt Benson Thomas and June Russell Erik and Diane Steckmest Kathleen and Robert Vanuka. Tohia - —a1—Ti- _ add Ce McClalgh_ry Judy Slate Donald and Patsy Cherry These landowners have suffered and continue to suffer injury as a result of the acts and omissions of the City of Bozeman ("City") and the Montana Department of Environmental Quality ("DEQ") in allowing a plume of contamination to impact our clients' private property. Through their roles in facilitating the construction of Phase III and their failure to address the contamination plume, DEQ and the City undermined and have compromised our clients' ability to freely enjoy their private property. Pursuant to M.C.A. § 2-9-301, we submit this letter in an effort'to provide notice of our clients' claims and to request that DEQ and the City work with our clients to fairly resolve their claims without resorting to expensive and burdensome litigation. City of BozemamDEQ May 16, 2014 Page 2 FACTUAL BACKGROUND The Bozeman Sanitary Landfill ("Landfill") is located two miles north of Bozeman on the southwest slope of the Bridger Mountain Range. When the Landfill opened in 1969, it accepted solid waste from individuals, businesses, the City, County, and other areas into a twenty-nine acre, unlined cell. Because the Landfill's original cell was unlined, toxic chemicals almost immediately leaked from the cell and infiltrated the surrounding groundwater. This toxic plume is composed of a cocktail of industrial solvents and volatile organic compounds ("VOCs") that are extraordinarily poisonous to people and the environment, these contaminants include tetrachloroethylene, trichloroethylene, vinyl chloride, and dichloromethane, among others. By 1989, more than a decade before the platting of Phase III, the City was aware that the Landfill was leaking this cocktail of toxic chemicals and it began monitoring the surrounding groundwater. In fact, one of the City's monitoring wells was located on land that would eventually be platted and developed as Phase III. The City monitored these wells for years, noting consistent contamination by VOCs leaking from the Landfill. This contamination included levels of the chemical solvents tetrachloroethylene, trichloroethylene, vinyl chloride, and dichloromethane, among others, that were above the Environmental Protection Agency's ("EPA") Maximum Contaminant Level ("MCL") standard. In 1995, five years prior to platting of Phase III, DEQ gave the City two years to assess and implement corrective measures to address the groundwater contamination. Rather than take adequate and appropriate measures to protect the environment and the health of nearby residents, the City negligently relied on a methane gas extraction and flaring system to remove VOCs alongside the methane. Because the gas extraction and flaring system was designed to remove gas, rather than leachate, it did little or nothing to stop the flow of the toxic plume. In 2000, the same year that Phase III was platted, DEQ conducted its own study ana aere ineo. rnai me t jTy s gag e.,K— cut7^ qna _Ti?nng sysS em. !ag uiAgegmtP 10 the task at hand and had not mitigated the flow of toxic chemicals into the groundwater surrounding the Landfill. DEQ also noted that the geology of the land underlying the Landfill significantly increased the chance of contamination by toxic leachate. DEQ concluded that a toxic groundwater plume was migrating downhill towards the Bridger Creek Subdivision and that many of the City's monitoring wells, including the one within the soon to be platted Phase III, contained VOC levels above the EPA's MCL standard. Notwithstanding DEQ's findings and its conclusion that a more comprehensive mitigation strategy was appropriate, DEQ did not require the City to take more aggressive actions to prevent continued contaminant migration from the landfill. In addition, neither the City nor DEQ notified surrounding landowners of the danger posed by the migrating toxic plume. The City and DEQ ignored the foreseeable danger to all those who live directly atop of a dangerous chemical plume. City ofBozeman/DEQ May 16, 2014 Page 3 In 2000, despite the City's knowledge of the toxic plume migrating beneath the Bridger Creek Subdivision, the City approved the plat for Phase III. In so doing, the City made many concessions to the developer that undermined the health and welfare of those who would reside within Phase III. Even though the City had originally called for a much larger buffer between the Landfill and Phase III, and against the advice of its own Sanitation Manager, it allowed the developer to push the development to within fifty feet of the Landfill. Despite the presence of a monitoring well that had consistently showed elevated levels of VOCs on what was slated to be a lot within Phase III, the City petitioned DEQ for the right to close or move the well. DEQ allowed this development without any regard for the health and safety of the families that would eventually reside in Phase III. With similar neglect of the dangers posed by the Landfill's toxic plume, the City approved building permits and certificates of occupancy for individuals and families, including our clients, who unknowingly built on poisoned land. Despite the City's superior knowledge, it failed to withhold consent for the residences and failed to even acknowledge to the residents that there was a problem. In the summer of 2013, after decades of monitoring the flow of toxins from its Landfill, the City alerted the residents of Phase III of the dangers to their health and that of their families. 1 Because the residents' homes were unknowingly built above the toxic plume migrating from the Landfill, their homes acted as catchments for the VOCs off - gassing from the contaminated groundwater. The City performed testing in our clients' home and at other locations throughout Phase III. The testing confirmed what the City had known since at least 1989 - that the Landfill was releasing a toxic plume of chemicals that migrates through the surrounding groundwater and poses a danger to people who own property or reside in homes near the plume. After its revelation of this situation, the City attempted to mitigate our clients' injuries by installing gas -extraction systems in poisoned residences. And while the installation of these systems has decreased the severity of the VOC's contamination within some of our clients' homes, the City has not begim,to address the.,:mderlying cause of their injuries. Nor has DEQ made good on its requirement that the City implement corrective measures to protect the health of the environment and affected residents. This continued neglect by the City and DEQ means the Landfill continues to leak a combination of toxic chemicals into the surrounding groundwater that continues to flow onto our clients' properties. Each day that the City and DEQ failed to stop the flow of toxic chemicals onto our clients' property, our clients suffer a new injury. I In direct contradiction to its demonstrated earlier knowledge, the City contended in a July 2, 2013 Memo to the residents of Phase III that it only recently discovered the toxic pollution flowing out of the Landfill and onto their properties. City of Bozeman/DEQ May 16, 2014 Page 4 INJURIES CAUSED BY THE CITY AND DEQ' S CONDUCT Both the City and DEQ acknowledge that the toxic chemicals flowing onto our clients' properties are adverse to their health and that of their families, have caused and likely will cause respiratory exposure, and can cause short and long-term sickness, including cancer. Both the City and DEQ acknowledge that the flow of toxic chemicals is harmful to the environment, including the surrounding groundwater. In addition to posing a direct threat to the health and well-being of our clients, the flow of toxic chemicals has permanently and dramatically reduced the value and marketability of our clients' properties. Itis likely that our clients will be saddled with their properties into the future, whether or not they are willing to risk their health, and that of their families, by continuing to live in their residences. The negligence and neglect of the City and DEQ has led to our clients' injuries including, but not limited to: a) Diminishment of property values, including permanent stigma devaluation; b) Loss of peace of mind, inconvenience, trouble, vexation, anger, frustration, and fear pertaining to the contamination of our clients' properties; c) The cost to fully remediate and restore our clients' properties to their pre - contaminated state; d) The cost to monitor our clients' properties in order to detect and prevent further damage from the toxic contamination; e) The cost to monitor our clients' health and that of their family members to detect and proactively treat latent disease arising from exposure to the cocktail of toxic chemicals beneath their. homes. LEGAL BASIS OF RELIEF While our investigation is still underway, the injuries caused by the City and DEQ are subject to legal redress under at least the following claims: a) Trespass; b) Negligence; 1) Failing to ensure that the Landfill was planned, designed, engineered, constructed, installed, and monitored in such a way as to prevent toxic City of BozemamDEQ May 16, 2014 Page S chemicals from escaping the Landfill and forming a toxic plume that migrated onto private property; 2) Failing to properly mitigate the toxic chemicals that were escaping the Landfill; 3) Continuing to operate the Landfill without proper mitigation methods to prevent the escape of toxic chemicals over the next thirty years; 4) Approving Phase III and platting it as if there were no danger from the toxic plume flowing from the Landfill; 5) Failing to prevent the migration of toxic chemicals from the Landfill despite the knowledge that residences were being constructed in the path of the plume; 6) Approving our clients' building permits and certificates of occupancy in spite of the knowledge that our clients' homes were being constructed directly atop a plume of toxic chemicals flowing from the Landfill; 7) Failing to warn residents and potential residents of the dangers posed by the toxic plume migrating from the Landfill for approximately thirty years; and 8) Failing to be forthright with the public regarding the City and DEQ's knowledge of, and inadequate response to, the toxic plume migrating from the Landfill. c) Private Nuisance d) Wrongful Occupation of Land e) Negligent / Fraudulent Misrepresentation f) Violation of the Montana Constitution g) Wrongful Taking / Inverse Condemnation CONCLUSION Because the City and DEQ failed to properly design, engineer, construct, install, and monitor the Landfill, the Landfill has and will continue to release a cocktail of toxic City ofBozeman/DEQ May 16, 2014 Page 6 chemicals into the surrounding groundwater. This chemical plume continues to migrate onto our clients' properties and homes, undermining our clients' quality of life, threatening their health, and destroying the value and marketability of their homes. For the foregoing reasons, we respectfully request the City and DEQ work with us, without need of a lawsuit, to fairly compensate our clients for their losses related to the contamination emanating from the landfill. Sincerely, t - Domenic A. Cossi DAC/jat