Full opinion text
DECISION, ORDER AND CERTIFICATION BLOCK, District Judge. TABLE OF CONTENTS INTRODUCTION.84 FINDINGS OF FACT.85 I.The Old Town Landfill. 85 II.' The Pond and Creek.•.86 III. The Phase I Report.88 IV. The Phase II Report.90 V. The Court’s Expert.94 A. The Sinking Phvme.95 B. The Chemical Contamination of the Pond and Creek Attributable to the Landfill.96 1. Ammoma-N. 2. Iron. 3. Manganese. 4. Other Chemicals . O <£> «£> <X> OiOCD^I^] C.Elimination of Other Sources O DTRCTTSSTON O o I.Resource Conservation and Recovery Act.100 A. Statutory and Regulatory Framework.100 B. Parties’Contentions.104 C. Subject Matter Jurisdiction.105 D. Application of Statute.110 1. Has Solid Waste Been Disposed of at the Landfill?.110 2. Has the Town Contributed to the Past or Present Disposal of the Solid Waste?.Ill 3. Has the Pond and Creek Been Contaminated by the Leachate Plume?.113 4. Does the Contamination of the Pond and Creek Present an Imminent and Substantial Endangerment to Health or the Environment?.114 II. Clean Water Act.117 A. Statutory Framework.117 B. Application of Statute.118 1. Has There Been a Discharge of a Pollutant from a Point Source?.118 2. Was the Discharge Into Navigable Waters?.119 3. Can the Town, As a Past Polluter, Be Held Liable for the Ongoing Nature of the Discharge?.120 CONCLUSION. T — i CERTIFICATION PURSUANT TO 28 U.S.C. § 1292(b) T — ( 03 ADDENDUM A (Map of Former Holtsville Landfill Monitoring Well Locations) CO <N ADDENDUM B (Color-reproduced copy of photograph of Motts Pond). <N INTRODUCTION Plaintiffs, a group of individuals residing in the immediate vicinity of the former Holtsville Landfill (the “landfill”) located in the southwest portion of the Town of Brookhaven, New York (“Town”), have brought this action against the Town alleging violations of two federal environmental statutes, the Resource Conservation and Recovery Act of 1976 (“RCRA”) and the Federal Water Pollution Control Act of 1972 (“Clean Water Act” or “CWA”). Their claims are based upon their contention that the landfill has contaminated a creek and pond abutting or in close proximity to their homes. They also allege certain New York State statutory and common law claims as a consequence of such contamination. Plaintiffs seek remediation, compensatory damages, civil penalties and attorney’s fees. The parties stipulated that the trial would be bifurcated. The first phase would resolve liability under the federal claims. If the Town prevailed, plaintiffs agreed to discontinue their state law claims. If plaintiffs were successful, the second phase would resolve the state law claims, in addition to addressing remedies for the federal violations. The federal liability claims thereafter were tried before the Court without a jury. Pursuant to Federal Rule of Civil Procedure 52(a), the following constitutes the Court’s findings of fact and conclusions of law. As gleaned therefrom, the Town is not liable under the Clean Water Act, but is responsible under RCRA for contaminating the creek and pond because it contributed to the disposal of solid waste which presents an imminent and substantial endangerment to the environment. The case will accordingly proceed to the second phase. FINDINGS OF FACT 1. The Old Town Landfill Although the record does not precisely trace the history of the landfill, it appears that for some indeterminate period prior to 1937 the property was owned by New York State and used as an open dump for burning garbage. See Ex. 27 at 4-1. Thereafter, the Town began acquiring the property and it became the proverbial town dump. In 1968 it was converted by the New York State Environmental Facilities Corporation (“EFC”) to a forty-acre sanitary landfill with septage lagoons. See id.; Ex. 33 at 4-1. In 1974 the landfill was closed by EFC and transformed into Town recreational facilities. See Ex. 27 at 4-1, 4-5. James Heil (“Heil”), EFC’s project manager at the time of the closing of the landfill, testified for the Town that the landfill was closed by first covering it with “sand or material” and then applying “another 18 inches to two feet” of “loam,” which was “sort of a tight soil,” as a “final cover.” Tr. at 875. It was not lined. See Ex. 33 at 4-1. Moreover, it “d[id] not contain a leachate collection system.” Id. Although the Town did not maintain records documenting the types or quantities of materials it allowed to be deposited in the landfill, it was “always easily accessible for disposal of industrial waste.” Ex. 27 at 4-1. Heil, who prior to becoming the project manager for EFC had inspected the landfill during the late 1960s when employed by the Suffolk County Department of Health Services (“SCDHS”), candidly told the Court that “[tjhere [was] no restriction as to what could be dumped into the landfill.” Tr. at 902. As he stated, it had been “an open landfill for years and anybody [could] dump anything in it.” Tr. at 902-03. Given his personal familiarity with 'the dump, Heil characterized its contents as “municipal solid waste,” id., meaning “solid waste garbage, refuse, yard waste, construction demolition debris, sludges, originating from residential and commercial establishments within a municipality.” Tr. at 890. This was confirmed by James Lapienski (“Lapienski”), a former employee of the Town who was employed as a bulldozer operator at the landfill in the mid-1960s. He observed at that time household garbage, televisions, old boats, trees, automotive parts, batteries, tires and sludge being dumped, most of which was brought to the landfill by municipal and private carting firms. See Tr. of Lapienski Dep. at 8-14. II. The Pond and Creek Approximately 2,500 feet south of the landfill, and about 1,000 feet south of Woodside Avenue, lies Motts Pond. See Ex. I-l. It was characterized by the Town’s witness, David Tonjes (“Tonjes”), a Town engineer since 1992, as basically a “still body of water.” Tr. at 685. Tonjes explained that although there is an “inter-' mittent stream” feeding into the pond from the north, this stream had “very little flow,” Tr. at 686, and that “Motts Pond appears to be fed by groundwater” coming from “the shallow groundwater system surrounding the pond.” Tr. at 573. Michael Veraldi (“Veraldi”), the plaintiffs’ expert witness, opined that groundwater migrates “underneath the landfill and does not surface to become a surface body of water until it gets to Motts Pond.”'Tr. at 236. Tonjes described the pond as “perhaps 300 feet long, approximately fifty feet wide.” Tr. at 573. Although Tonjes placed its depth at one location as “approximately one foot,” Tr. at 573, Veraldi reported from his review of certain records that the pond “can be as deep as nine feet in the center.” Tr. at 235. Veraldi explained that" there is a large “well defined stream continually running from th[e] pond,” Tr. at 686, sometimes referred to as Motts Creek, leading to Canaan Lake, a large navigable body of water. See Tr. at 42, 50. The creek is a tributary of Canaan Lake. See Ex. 27 at 4-6 (“[t]he closest surface water downgradient of the Holts-ville Landfill is an unnamed tributary of [CJanaan Lake”); Ex. 33 at 3-20 (“[t]he most prominent surface water feature in the study is an unnamed creek which originates in the southeast corner of the former landfill, flows in a southeasterly direction and discharges into Canaan Lake”). Motts Creek was described by one of the plaintiffs, Harold Liles (“Liles”), who has lived by it since 1974, as being fifteen-to-seventeen-feet wide, about two-to-three feet deep, and running about 1,500 feet from the pond to the mouth of Canaan Lake. See Tr. at 423-24, 428-29. Liles characterized the creek at the time he bought his home in 1974 as a pristine “babbling brook,” Tr. at 421, and as “clear as glass.” Tr. at 425. Rowboats, canoes and paddle boats went up and down the creek. See Tr. at 425. However, it started turning grey in the mid-1980s, and thereafter turned “pure orange.” Tr. at 426. He described the mouth of Canaan Lake as grayish and a wildlife “dead zone.” Tr. at 426. Another plaintiff, Linda McKibbin, who has lived near the creek since 1987, rendered comparable testimony, describing the pond and creek as “murky” as of that year, and by 1994 looking “like tomato soup before you whisked it.” Tr. at 489-90. Plaintiff Thomas Aiello (“Aiello”), who lived next to the pond beginning in 1967, testified that it looked at that time “like a country brook,” supporting “[a]ll kinds” of wildlife, “catfish, rabbits, ducks, even raccoons, black snakes.” Tr. at 372-73. He believed that the color of the pond started to turn a “golden rusty” color during the mid-1970s, but became extremely visible by 1993. Tr. at 380; see Tr. at 377, 391-92. Veraldi described the condition of Motts Pond and Motts Creek as of 1996, when he was retained by plaintiffs, as - a “toxic soup,” devoid of any life. Tr. at 43-44. An aerial photograph of the pond and part of the creek taken sometime after February 1996, see Tr. 39-40, poignantly depicts that they had turned a deep orange hue. See Ex. 95. Tonjes described the color of the pond and creek as “unlike any I have ever seen elsewhere.” Tr. at 549. There is evidence in the record of culverts on the north and south ends of the pond. Veraldi testified that a culvert on the south end of the pond was “located directly on the outflow of the pond,” Tr. at 302, and “flows from the southern part of the creek in a southeasterly direction.” Tr. at 329. Plaintiff Christine McGinnis (“McGinnis”) confirmed that there is “some kind of outflow pipe in the: southern part of the pond ... some type of a pipe or a culvert,” describing it both as “a little cement thing” and as “a metal tube that’s under the ground.” Tr. at 463-64. She explained that water coming from the pond “goes into the pipe, and then you can go to the other side of the property where it comes out of the tube.” Tr. at 464-65. McGinnis described the water as being the same color as the water in the pond. Tr. at 465. In respect to the intermittent stream on the north side of the pond, plaintiff Philip Paul testified as follows: [T]here’s two culvert pipes that go underneath Woodside Avenue which feed this stream which feed my pond ... and there’s the two culvert pipes there and the spring that feeds the culvert pipes, and there’s orange, it’s the same orange sediments and contamination coming into the culvert pipes flowing underneath and coming out on the south side of Woodside Avenue. Tr. at 942. During a site inspection by the Court on March 26, 1998, in the presence of counsel, the Court observed a culvert pipe underneath Woodside Avenue. It did not, however, examine whether there were culvert pipes at the south end of the pond, but has no reason to disbelieve McGinnis’s testimony, which stands uncontroverted. The Court also observed during this site inspection a number of modest homes juxtaposed to the pond, compatible with plaintiffs’ apparent working-class income levels. For example, plaintiff Joseph Laurieella is a retired Long Island Railroad conductor, see Tr. at 437, plaintiff Michael Josiah is a technical service manager for a recycling company, see Tr. at 406, and Aiello had retired as an assistant director and coordinator of federally funded youth programs for the Suffolk County Labor Department. See Tr. at 371-72. III. The Phase I Report A report prepared for the New York State Department of Environmental Conservation (“DEC”) by EA Science and Technology (“EA Science”), partially entitled “Engineering Investigations at Inactive Hazardous Waste Sites, Phase 1 Investigation, Holtsville Landfill,” dated June 1987, traces the history to that date of governmental.interventions subsequent to the closing of the landfill. See Ex. 27 at 4-2 to 4-3. Initially, in 1979 the SCDHS sampled “the stream downgradient of the landfill” because of “concerns over red staining in the stream.” Id. at 4-2. The sample results are unknown, and nothing further was done until 1982 when some dead fish were found in Canáan Lake. Id. Consequently, in that year, the DEC surveyed the lake and “noted that the stream had a high specific conductance and densé populations of iron-fixing bacteria.” Id. As a result of this survey the DEC determined that “the Town had caused the discharge of leachate into a stream without a valid [State Pollutant Discharge Elimina-' tion System (“SPDES”) ] permit,” and in August 1983 issued a Consent Order requiring the Town “to study the leachate problem.” Id. at 4-3. The Consent Order contained a Compliance Schedule requiring that by October 1, 1983 the Town “shall have submitted an engineering report on the leachate plume and remediation.” Ex. 12, Schedule A; Ex. 27 at App. 1. 1-12, Schedule A. In August 1986, the DEC met with the Town and was told that “no engineering report had been produced.” Ex. 27 at 4-3. Presumably as a consequence of the Town’s recalcitrance, EA Science was commissioned by the DEC to do a Phase I investigation. The goal of the Phase I investigation was to (1) obtain available records on the site history from the state, federal, county, and local agencies; (2) obtain information on site topography, geology, local surface water and ground-water use, previous contamination assessments, and local demographics; (3) interview site owners, operators, and other groups or individuals knowledgeable of site operations; (4) conduct a site inspection to observe current conditions, and (5) prepare a Phase I report. Id. at 2-1. The Phase I report was to include “a Hazard Ranking Score [“HRS”] and an assessment of the available information.” Id. EA Science issued its Phase I report in June 1987. See Ex. 27 (“Phase I report”). It noted that sometime in 1982 the Town had installed three groundwater monitoring well clusters down-gradient of the landfill, consisting of a total of seven wells. See id. at 4-4 & App. 1.1 — 17. In 1983, it installed three additional clusters, up-gradient of the landfill, comprising nine wells. Id. at 4-4 & App. 1.1-18. The clusters contained shallow, intermediate and deep wells, ranging from nine- to 100-feet deep. Id. Analyzing data from these wells, EA Science concluded that “[cjhemical analysis performed on the water samples consistently confirm a release to ground water of iron, manganese, ammonia, and magnesium,” id. at 4-11, and that “[t]he detected concentrations of these contaminants in samples from the downgradient wells were at least 10 times greater than the detected concentrations in samples collected from the background (upgradient) wells.” Id. at p. 2 of section entitled “Documentation Records For Hazard Ranking System” (following p. 5-1). EA Science also reported that several samples of surface water collected at the mouth of the pond by SCDHS personnel in 1985 “contained iron.” Id. at 4-13. The SCDHS observed at that time “that the stream banks were stained and the water was murky orange.” Id. at 4-11. As required by the Phase I investigation, EA Science was to arrive at an HRS from all the available data. Veraldi explained that “[t]he hazardous ranking score is a numerical number that is assigned to a landfill to determine its potential hazard condition to the environment and/or health of the surrounding community,” Tr. at 17, and if the HRS was “above 28.5” the site would qualify “for listing as a hazardous waste site.” Tr. at 28-29. EA Science arrived at an HRS of 42.24. See Ex. 27, Figures 1-10 (following p. 5-1). Given this high HRS, and its assessment of available information, EA Science made a preliminary determination that the landfill was a potential hazardous waste site. See id. section (unnumbered) entitled “Potential Hazardous Waste Site Preliminary Assessment.” It drew on a report by the Environmental Protection Agency (“EPA”) that characterized the nature of the hazard as “[potential ground-water and surface water contamination,” and the description of the substances possibly responsible for the contamination as “[h]ousehold and commercial garbage, septic sludges from residential, commercial, and industrial sources.” Id. at 2 (unnumbered). EA Science concluded that “[t]he existing data are adequate to confirm a release of contaminants (iron and manganese) from the Holtsville Landfill to the ground water,” but that “surface water quality data are reportedly inconclusive and there have been no documented hazardous wastes released.” Ex. 27 at 6-1. Accordingly, it made the following recommendation: It is recommended that the next step involve a complete characterization of the ground-water contamination (including potential organic compounds) and the horizontal and vertical extent of this contamination. Also, further evaluation of potential surface water contamination should be performed. This is beyond the scope of a Phase II program. Therefore, performance of a Phase II investigation is not recommended for this site. Id. at 1-2. In 1984, shortly after the Town entered into the 1983 Consent Order, it hired Dvir-ka & Bartilucci (“D & B”) as its consulting engineering firm. See Tr. at 772-73. The Town had engaged D & B in an “open-ended” contract to perform services on an as-needed basis, Tr. at 773; see Tr. at 772, 775, and D & B considered the Town to be a “good ongoing client.” Tr. at 799. Notwithstanding the Phase I report’s recommendation, D & B apparently prevailed upon the DEC to permit it to conduct a Phase II investigation, and a further Consent Order, to this effect, was entered into between the Town and DEC in 1987. See Ex. J; Tr. at 534-35. In a memorandum dated May 11, 1988, sent by Thomas Maher (“Maher”), D & B’s project director for the Phase II study, to the Commissioner of the Town’s Department of Waste Management, see Ex. 34; Tr. at 728, 786-87, Maher had informed the Town: Because of the documented release of contaminants to the groundwater (ten times above background for some of the inorganic chemicals monitored) the site has an HRS score of [4]2.24, well above the threshold of [28.5] to be considered a potential hazard by DEC. Because of the documented release of contaminants, the consultant who prepared the Phase I Investigation Report (Final,. June 1987) recommends a complete characterization of contaminants, and definition of the horizontal and vertical extent of the plume (RI/FS) which is beyond the scope of a Phase II Investigation. Tr. at 788. “RI/FS” is the abbreviation for “remedial investigation/feasibility study.” See Tr. at 781. Maher testified under cross-examination by plaintiffs’ counsel that he conferred with the Town regarding whether to conduct a Phase II investigation or to undertake the RI/FS recommended by EA Science, and that “cost was a consideration and was discussed with the Town.” Tr. at 783; see Tr. at 788. Maher estimated the cost for a Phase II study to be approximately $250,000, yersus $750,000 to $850,000 for an RI/FS. Tr. at 784, 798-99. He further explained that although the Town could possibly receive seventy five percent reimbursement from New York State for an RI/FS study, the Town would not be eligible for such funds unless it accepted the. designation of the landfill as a potential hazardous waste site, which it was unwilling to do because of the “stigma.” Tr. at 793; see Tr. at 789-793. In contrast to the recommended RI/FS, Maher explained that “the focus of a phase two investigation is to document if there’s been a release from a source before you start placing additional wells or doing additional investigation further down gradient or off the site.” Tr. at 743. As he elaborated: A phase two investigation is really to primarily focus on what you think or anybody thinks is the source of contamination. If it’s been established that there has been a significant release, then the next sequence of events would — to go off site to determine what it could impact and how significant the impact would be. Tr. at 747. As for the high HRS score, Maher believed that it was simply a preliminary score “based upon unsubstantiated information.” Tr. at 29. IV. The Phase II Report D & B’s Phase II report, dated January 1992, was not issued until five years after the second Consent Order. See Ex. 33 (“Phase II report”). Apparently based in large measure on the Phase II report, the DEC did not require the more detailed RI/FS recommended by EA Science in the Phase I report, and the landfill was not classified as a hazardous waste site. See Tr. at 758-59. Curiously, D & B recalculated the HRS to be 27.3, just under the minimum score for a hazardous waste site listing. Ex. 33 at 5-1. As Veraldi opined in that regard, an HRS “can be manipulated in a variety of ways that would involve perhaps sampling at different locations, perhaps sampling on certain days of low rainfall, a variety of factors can affect that hazardous ranking score.” Tr. at 99. The Phase II investigation principally relied on some surface water testing of the pond, reassessment of the data from the existing wells, and evaluation of new data from four clusters of state-of-the-art poly-vinylchloride (“PVC”) wells D & B caused to be installed just below the landfill, next to the old down-gradient wells in that location. See Tr. at 741-746. These new wells were designed to enhance test accuracy since the old wells were made from either iron or steel and the DEC “do[es] not recognize iron or steel wells for hazardous waste investigations.” Tr. at 742. The location of all the old and new wells and their relative proximities to the landfill and the pond is graphically depicted in the attached reproduction of Exhibit 1-1 (Addendum A). As shown therein, the old upgradient wells, designated UGW, were located due north of the landfill; the new wells, designated MW-1, MW-2, MW-3 and MW-4, were all in close proximity to the landfill, as were the old wells in that location, and the only wells near the pond were three old wells, designated WW (fifty-five feet), WM (thirty feet) and WE (nine feet), lying only about 150 feet north of the pond. From all the data collected, Maher acknowledged that the Phase II investigation confirmed that “the landfill is a source of contamination.” 'Tr. at 756. Nonetheless, he “did not consider the release of contaminants to be a significant threat to health and the environment,” Tr. at 754-55, although he acknowledged that the discoloration of the pond was “not a good situation.” Tr. at 812. Consequently, Maher did not believe that new tests of the old W wells were indicated, let alone the installation of new improved PVC wells near the pond. As Maher testified in response to the Court’s questioning: THE COURT: But you did come to the conclusion that there was a release from the landfill, if I understand this case correctly, but nonetheless, you decided that you would not put in new PVC wells down by the W wells, that were either lead or iron. You know that I was going to ask that question because I focused a lot of my questioning to Mr. Tonjes about that. And I’m anxious to get a sense of this, since we’re talking about the decisions you made in terms of the numerosity of the wells and the placing of the wells. THE WITNESS: The reason we didn’t do any furthér investigation off site, and when I say off site groundwater investigation, because we did take a took at the stream and the creek and the pond, was'because in our opinion there was not a significant release of contamination and more important, not a significant threat to health and the environment, and that’s as defined by the super fund program. THE COURT: Notwithstanding the obvious discoloration of the bodies of water that you’re talking about here? THE WITNESS: Well, again, we had some information on the characteristics of the Plume. We didn’t feel in large part that the body of the Plume was impacting that water; that there could be other sources of contamination and, therefore, that the landfill was not a significant threat to health and the environment, that was our opinion. Tr. at 743-44. Specifically, Maher believed the following two factors supported his opinions: (1) that runoff water from the construction of Woodside Avenue in 1976, residential construction and residential septic tanks, as well as a certain marshy area, could have been contributing to the contamination of the pond and creek, see Tr. at 729-31, 735; (2) that “it did not appear that the main body of the Plume was being intercepted by the creek or the pond; that it was flowing beneath it, and therefore, no additional investigation in our opinion was required.” Tr. at 759. In respect to the possible “other sources” for the contamination of Motts Pond and Motts Creek, Veraldi rendered convincing and credible testimony when questioned about this aspect of the Phase II report: Q. I’m, going to read you one part of the phase two report, it’s on page 1-4. “Although these contaminants could result from landfill Leachate, some or all could also originate from other sources such as a marsh immediately south of the landfill, storm waters run off and on-site waste water disposal systems, as well as naturally occurring contaminants such as Iron.” Do you agree with that statement? A. Well, I also read that statement and when we did our walk through, there is in this area, just north of Wood-side Avenue, what could be described as a small marsh area. This is a living, thriving community. The water is clear, it does not have an orange pigmentation to it, so I think that rules out this marsh area as a potential source of the contaminant. As far as residential contamination sources, I don’t see any reason that Iron would be a contaminated source from residential use. And don’t find that at all consistent with what we found. The residential area along the’ northern part of Canaan Lake, which is certainly more densely populated, does not show effects that are described along Motts Pond. This here is all pristine and there’s certainly a more dense population in this area than this area here. Tr. at 62-63. In addition, Veraldi noted that a cemetery near the landfill was not “in the direct line of the groundwater.” Tr. at 150. Furthermore, despite suggesting that runoff water or residential septic tanks could have been contributing factors in contamination of the pond and creek, see Tr. at 729-30, Maher acknowledged when questioned by the Court that D & B did not conduct any testing to determine whether residential sanitary systems and stormwa-ter runoff were in fact contributing to the contamination. See Tr. at 821-25, 829-830. As for whether the underground leach-ate plume could intercept the surface waters of the pond and creek, Tonjes provided critical testimony. First, he acknowledged that “[t]he chemistry of the pond is very similar to that of the Leachate Plume,” although septic systems have a similar chemistry, Tr. at 556-57, and that the leachate plume “was definitely coming from the landfill.” Tr. at 567. He could not conclude, however, that the landfill was the cause of the contamination because “there’s no mechanism — there’s no evidence for a mechanism to get the contamination from deep in the aquifer all of a sudden rising very suddenly into the pond.” Tr. at 569. In that respect, Tonjes testified that the data collected from the new wells, which as previously noted were in close proximity to the landfill rather than to the pond and creek, showed “the Leachate Plume is sinking slightly .in the aquifer as it moves from the landfill, and so that by the time that the Plume reaches the W set of wells located just north of the pond ... there appears to be a small ledge or a small slice of relatively uncontaminated groundwater, so that there’s essentially uncontaminated groundwater and then the contamination.” Tr. at 555. Specifically, the shallowest well closest to the pond, the old W-9 well, which was approximately ten-feet deep in the aquifer, showed “little to no contamination,” in Tonjes’s opinion. Tr. at 558. By contrast, the old W wells thirty-to-fifty-feet deep in the aquifer showed “high levels of contamination at or about the place where the chemistry of the pond, so to speak, leaves something to be desired.” Tr. at 568. Tonjes candidly told the Court, however, that there might be more that could have been done to discern whether there was a connection between the contaminated sinking plume and the contaminated pond. He felt professionally constrained, however, from giving the matter “more thought” because “[t]he terms under which I work for the Town are not such that I can do all that I feel professionally.” Tr. at 571. When questioned by the Court as to whether it was within the realm of scientific probability that contamination thirty-to-fifty-feet deep could be a primary or significant contributing factor in causing the chemistry of the pond, notwithstanding the data from the W-9 well, Tonjes acknowledged that “[fit’s not impossible,” Tr. at 600, but that “there is not enough data to firmly state ... what is going on” — whether the contamination in the pond was caused by the vertical flow of the plume or by a shallow horizontal flow of groundwater unimpacted by the plume. Tr. at 604. The Court consequently questioned Tonjes at length about the phenomena of the “sinking Plume.” Tr. 690. Initially, Tonjes stated that “[fit is true that if there were a hydraulic, an obvious hydraulic connection between the Plume and the contamination in the pond, there would be no dispute about the source of contamination.” Tr. at 690. His testimony continued in that vein, as follows: THE COURT: By hydraulic connection you mean that it’s not sinking, that there’s a connection? THE WITNESS: A physical connection between the Plume and the contamination in the pond. THE COURT: And that’s what you say is missing here, this hydraulic connection as you phrase it? THE WITNESS: That is, it’s a necessary component to make the link between the Plume and the contamination. THE COURT: I’m coming from the landfill, everything seems to be flowing a certain direction. These wells, the samples, the MW’s we’ve been through all of that. We know what the lay of the land is. So we come down to this W-9 well ... and that seems to be a matter of great significance ... that because [ ] that W-9 well supports your conclusion, together with perhaps other observations or other factors, that this Plume is sinking, it’s going to the bottom of the drink so to speak, and that’s the hydraulic issue, I think that’s what you mean. If it wasn’t sinking, you then have perhaps a different opinion, but the fact that it is sinking firms up your belief as an expert that you can’t or I cannot, I guess, the fact-finder, make the requisite linkage between the conditions in the pond that ha[ve] been testified to, and the Leachate Plume that is emanating from the landfill. Now, am I on the same page here or not? THE WITNESS: Yes, your honor. THE COURT: All right. THE WITNESS: The sinking Plume. THE COURT: The sinking Plume sinks the plaintiffs lawsuit? THE WITNESS: Yes, sir. THE COURT: And that’s based primarily on the W-9 well that’s the data that you use to support that? THE WITNESS: It’s the only appropriate point to make that judgment, yes, sir. There is no other source of data. THE COURT: [ ] But what is consistent, it seems to me, is the chemistry of the pond and the chemistry of the stream, both apparently leading into the pond and emanating from the pond, going into the I guess the head water of the — maybe not the head water, what do you call the entrance to the lake, would it be the head water? THE WITNESS: A mouth from the pond into the lake. THE COURT: There seems to be a consistency in that aspect and it’s unexplained as to why the surface waters appear to be contaminated or are contaminated and that’s the sort of the puzzlement here. THE WITNESS: There seems to be a unique set of circumstances surrounding this pond which have combined to create the chemistry of that pond. THE COURT: That’s pretty much based upon the test results from the W-9 well essentially? THE WITNESS: That there’s a' unique set of circumstances in this pond? THE COURT: That creates the mystery so to speak as to what’s causing this? THE WITNESS: It’s the key piece of data. THE COURT: It’s the key piece of data, all right. THE WITNESS: In excluding the landfill Leachate Plume, yes, sir. Tr. at 690-96. V. The Court’s Expert In light of Tonjes’ testimony, the Court decided to appoint an expert, pursuant to Federal Rule of Evidence 706, to evaluate the existing data in order to assist the Court in assessing its technical aspects and in determining whether there was a scientific explanation for the contamination in Motts Pond and Motts Creek in light of the sinking plume. The Court chose as its expert Dr. Raymond A. Ferrara, President and founder of Omni Environmental Corporation of Princeton, New Jersey. Dr. Ferrara had been the head of the Civil Engineering Department of Lafayette College, and was formerly an Assistant Professor at Princeton University, where he was the Director of its Water Resources Program. See Ex. H-l (“Environmental Aspects Related to Aiello, et al. v. Town of Brookhaven” (“Ferrara report”), dated February 1.9, 1999, App. A (“Raymond A. Ferrara, Curriculum Vitae”)). His stated expertise “in water quality modeling and monitoring, contaminant fate and transport in water resource systems, and [National Pollutant Discharge Elimination System] permitting,” id. at 1, has not been challenged by the parties; nor his impartiality to render expert opinion in this case. The Court requested Dr. Ferrara to ■render a written report regarding: “(1) the validity of the data upon which the opinions given by the plaintiffs’ and defendant’s experts have been based; (2) whether Canaan Lake and Motts Creek experience contaminant loadings from one or several sources; (3) the path of the contaminant plume, if any, from the Holtsville Landfill; and (4) the hydrogeologic interactions between the ground waters and surface waters in the area of study.” Order of the Court, Oct. 5, 1998. Upon receipt of Dr. Ferrara’s report, the Court conducted a hearing to permit the parties, as well as the Court, to question Dr. Fer-rara under oath about his findings and conclusions. See Order of the Court, Feb. 25,1999. In respect to whether the leachate plume emanated from the landfill, Dr. Fer-rara testified as follows: Q. All right, just tell us now what you believe to be the primary difference or the primary significance between the up gradient and the down gradient from the data that you assessed. A. Well, I looked at ammonia, total dissolved solids, iron, manganese and various organic chemicals and what I found is the concentrations for all of those were elevated in the down gradient wells as compared to the up gradient wells. Q. And what conclusions does one draw from that from the technical point of view? A. Well, simply looking at the data all it tells you is that there is a significant— there is a change from up gradient to down gradient. Q. All right. A. The next step was to look at what can likely have caused those changes and based upon all the information available to me, the only apparent cause for that would be leachate from the landfill. Ferrara Tr. at 23 (emphasis added). In addition to concluding that “the overwhelming weight of the data point to the landfill site as the source of contamination,” Ex. H-l at 16, Dr. Ferrara’s report detailed that the ammonia-N, iron and manganese present in the leachate were also reflected in significant amounts in the data obtained from the pond and creek’s surface waters, confirming that the contamination in the plume was, as Tonjes had acknowledged, chemically similar to the contamination in the pond and creek. See Tr. at 568. In discussing the toxic chemical condition of the groundwater and surface waters Dr. Ferrara explained why the only source of the contamination in the pond and creek was the landfill, notwithstanding the so-called sinking plume, and the effect of the contaminants on human life and the environment. A. The Sinking Plume Initially, Dr. Ferrara explained that when falling water hits the unlined landfill it “seeps through” and “comes out of the landfill as leachate.” Ferrara Tr. at 16. This leachate consists of dissolved chemicals and takes the form of a plume. See id. at 17. Thus, a plume is “an area of demarcation in the ground water, the shallow ground water, which contains chemicals which have been leached from the landfill materials.” Id. Dr. Ferrara explained that as the plume moves from the landfill it will spread both vertically and horizontally since “[t]he geohydrology in this area appears to be such that there are no particular confined or confining layers that would impede the movement of water.” Id. at 17-18. Dr. Ferrara further explained that this horizontal and vertical movement acts like a “wedge,” and that “the wedge gets wider as you move further down from the landfill.” Id. at 31. This explains why there may be higher concentrations of contaminants at lower levels further from the landfill. See id. Therefore, in respect to the cluster of W wells— at depths of nine feet, thirty feet and “perhaps sixty-seven” feet — “you see a little bit higher concentrations at that middle depth.” Id. at 32. Dr. Ferrara acknowledged that the chemicals in a leachate plume can degrade and will dilute to some extent as they move down-gradient from a landfill. Id. at 55-56. This, however, did not alter his observation that “concentrations even at the shallowest [W] well which is screened at a depth of only 9 feet are increased well above the levels observed at the comparable background wells.’.’ Ex. H-l at 12. This indicated to Dr. Ferrara that “the plume from the landfill is staying fairly shallow. It’s not going straight down. It’s staying and gradually, perhaps, sinking or spreading out as it moves downstream.” Ferrara Tr. at 30-31. In addition to testifying that the W~9 well did indeed contain higher levels of contamination when compared to comparable background wells, Dr. Ferrara was “certain,” when questioned about the higher readings in the mid-level W well, “that ground water is being pumped into the Pond.” Id. at 78. He noted in that respect that “it’s really all one ground water aquifer at that location,” id. at 82, and explained throughout his report and testimony how the contaminants from the landfill could surface in the pond. To begin, Dr. Ferrara’s report states that regional analysis for a 1978 Long Island Waste Management Plan showed that the landfill is located in a “ground water discharge area.” Ex. H-l at 4. This means that “ground water feeds surface water systems in this general area by flowing from the subsurface into surface water systems.” Id. at 4-5; see id. at 13. Groundwater discharge can occur locally where “low topography intersects the water table. This appears to be the case further downgradient from the landfill where Motts Creek begins to form.” Id. at 5. Moreover, the United States Department of the Interior Geological Survey topographical map of the Patchogue Quadrangle shows that “the creek bed elevation is approximately the same as the water table elevation, and therefore the creek would intercept horizontally flowing ground water.” Id. at 5. Therefore, since the similarity in elevation between the groundwater and the creek bed means it “can intercept the ground water table in this area,” “[s]uch naturally intercepted ground water provides baseflow in Motts Creek.” Id. at 13. It consequently means that contaminants “emanating from the landfill to the ground water system would have an opportunity to enter Motts Creek.” Id. at 14. B. The Chemical Contamination of the Pond and Creek Attributable to the Landfill In assessing the chemical contamination of the pond and creek, Dr. Ferrara “considered all data that were presented in the case, which include[d] the data collected back in 1987 by EA Engineering, data collected as part of the ’92 report by [Dvir-ka] & Bartilucci, ongoing data collected by the Town, data presented by Mr. Veraldi.” Ferrara Tr. at 27. In regard to groundwater contamination, Dr. Ferrara examined the findings of the Phase I and Phase II reports, as well as reports compiled by Veraldi as part of his testing in June 1996, and other data from the Town’s database. See Ex. H-l at 6-7 (citing Ex. 27; Ex. 33; Ex. 84-B; Ex. 84-C; Ex. 84-D; Ex. 85; Ex. 1-3; Ex. 1-4). In respect to Veraldi’s data, Dr. Ferrara only considered that data which was consistent with the other data since appropriate concerns had been expressed about the validity of Veraldi’s samplings because “exact protocols may not have been followed for those data.” Ferrara Tr. at 28. Dr. Ferrara also examined data concerning contamination of surface water sampled in the pond, the intermittent stream north of the pond, the creék south of the pond, the mouth of Canaan Lake and standing water near the landfill. See H-l at 17,19. These “[s]urface water sampling results [were] available irom the Town’s database and the Phase II investigation conducted by [D & B] in 1992.” Id. at 17 (citing Phase II report, Ex. 33). Dr. Fer-rara analyzed the data from these sources and set forth his analysis in Tables B-3 and B-4 of his report. See Ex. H-l at 17, B-10 (Table B-3), B-ll to B-12 (Table B-4). According to Dr. Ferrara, the data show in relevant part that the observed surface water levels of ammonia, [total dissolved solids], iron and manganese are substantially higher than those observed at the upgradient wells. Furthermore, they are comparable to the levels found in the downgradient wells.... Id. at 20. Taking all the information assembled by Dr. Ferrara regarding groundwater and surface water, the data established the following concerning ammonia-N, iron, manganese and other chemicals found in the leachate plume: 1. Ammonia-N Regarding ammonia-N, which is “colorless,” Ferrara Tr. at 34, concentrations above 2 milligrams per liter (“mg/l”) are in excess of acceptable DEC groundwater standards. See Ex. H-l at 15. At up-gradient well sites, mean ammonia-N concentrations were all well below 2 mg/l. See Ex. H-l at B-l to B-2 (Table B-l). At well sites down-gradient of the landfill, mean ammonia-N concentration consistently exceeded acceptable water quality standards by orders of magnitude — in some wells by as much as thirty and forty times. See Ex. H-l at B-3 to B-9 (Table B-2). Ammonia-N was also found in the pond’s surface water in concentrations that greatly exceeded “existing NYSDEC surface water standards or guidelines.” Ex. 33 at 4-49; see Ex. H-l at B-ll (Table B-4). The DEC surface water standard for ammonia-N is 8.10 mg/l in surface waters such as the pond and creek and 1.64 mg/l for surface waters like Canaan Lake. Ex. 33 at 4-53. Specifically, sampling of surface water at five points in the intermittent stream, north of the pond, showed mean ammonia-N concentrations of 9.982 mg/l, 22.9 mg/l, 15.5 mg/l, 8.03 mg/l and 4.5 mg/l. Ex. H-l at 19, B-ll (Table B-4). The pond itself had a concentration of 20.3 mg/l. Id. at 19, B-12 (Table B-4). Three points in the creek, south of the pond, revealed mean concentrations of 21.6 mg/l, 20.54 mg/l and 16.7 mgyl. Id. Testing of standing water at four points north of the intermittent stream, near the landfill, showed mean concentrations of less than 0.04 mg/l, 4.75 mg/l, 0.20 mg/l and less than 0.04 mg/l. Id. at 19, B-13 (Table B-4). Almost all surface water data from the pond and creek indicated the presence of ammonia-N at levels far in excess of the permissible standard of 8.10 mg/l. Dr. Ferrara concluded that the source of ammonia-N contamination in the pond and creek was groundwater affected by the landfill. See Ex. H-l at 20, 21. As he testified, this chemical “would be indicative of the kinds of leachate you might expect from a landfill, particularly one which has received septic and sludges over the years and we do know that to be the case in this particular landfill;” in any event “ammonia is a common [constituent] of landfill leach-ate.” Ferrara Tr. at 25-26. Dr. Ferrara also testified that the quantities of ammonia in the pond, although not a threat to human life, were sufficient to cause an impact to aquatic life. See id. at 35. • 2. Iron In respect to iron,- Dr. Ferrara explained that it reacts with hydroxides in water to form iron precipitates, which, in turn, cause water to turn an orange-reddish col- or. See id. The DEC groundwater standard for iron for the protection of human health and drinking water is 0.3 mg/1. See Ex. H-l at 15. Dr. Ferrara noted that there were three occasions when high iron readings.came from the old UGW up-gradient wells. He believed that these were “erratic values,” probably impacted by the fact that the casings of the old wells, unlike the new PVC wells, were possibly made of iron, since the other readings from the UGW wells suggested that “background iron levels [in the UGW wells] are typically less than 1 mg/1.” Id. at 9-10. Moreover, the readings from the other up-gradient wells, the MW-1 wells, were very low — “around 0.1 to 0.2 mg/1.” Ex. H-l at 10. As for the down-gradient wells, the average iron concentration at the new MW-2-S well was 15.8 mg/1, which, as Dr. Fer-rara testified, “eonfirm[ed] an impact in the shallow aquifer.” Id. at 11. Significantly, Dr. Ferrara noted the “paucity of data” at two of the other new down-gradient wells, which made it “difficult to come to any firm conclusions based on their measurements.” Ex. H-l at 11. Nonetheless, from the existing data he concluded that the concentrations of iron in the down-gradient wells was “an order or two orders of magnitude higher” than the iron in the up-gradient wells. Ferrara Tr. at 26-27. In particular, Dr. Ferrara observed that the mean concentration of iron found in, the down-gradient W-9 well was 11.2 mg/1 and the mean concentration in the down-gradient W-30 well was 30.7 mg/1. Ex. H-l at B-9 (Table B-2). Notwithstanding the high readings from these old wells closest to the pond, which arguably could be ascribed to their iron or steel construction, D & B did not question their accuracy in their Phase II report and, as previously noted, did not see fit to install new PVC wells near them or conduct other samplings of the groundwater in the vicinity of the pond. See Tr. at 743-44. In regard to surface water in the creek and pond, the DEC standard for iron is 0.3 mg/1. Ex. H-l at 20. The Phase II report acknowledged that in D & B’s surface water testing, “iron was detected ... at concentrations exceeding NYSDEC surface water standards.” Ex. 33 at 4-49. In addition, “initial and supplemental investigations” of surface water sediment found iron “at concentrations which are elevated in comparison to background levels.” Id. at 4-43. The Phase II report also observed that the “water quality guideline for color is exceeded” in certain surface water samples, id. at 4-53, and that such “elevated color values may be attributed to the high iron concentrations found in these waters.” Id. In particular, mean concentrations of iron in surface water samples taken by D & B north of the pond were 9.67 mg/1, 19 mg/1, 7.60 mg/1, 3.83 mg/1 and 22.8 mgd. Ex. H-1 at 19, B-11 (Table B-4). The pond contained a mean iron concentration of 8.55 mg/1. Id. South of the pond, sampling showed mean iron concentrations at 10.8 mg/1, 9.20 mg/1 and 1.82 mg/1, the lowest of which was located in the mouth of Canaan Lake. See id. at 19, B-12. Concerning the effect of the iron contamination on health and the environment, Dr. Ferrara testified that it had no effect on human health since “it’s not of such a level that it would be toxic and no one is drinking that water anyway.” Ferrara Tr. at 37. Nor did he detect any odors from the pond when he conducted a site visit. Id. at 59, 91. In respect to aquatic life, Dr. Ferrara stated that although the ammonia standard “is clearly for the protection of aquatic life ... the iron is not.” Id. at 38. Consequently, the only impact of the iron would be aesthetic — the pronounced discoloration of the pond. See id. 3. Manganese As for manganese, the DEC groundwater standard, like iron, is 0.3 mg/1, and the standard for the sum of iron and manganese is 0.5 mg/1. See Ex. H-l at 15. These standards are established for the protection of human health and drinking water sources. Id. Manganese levels, standing alone, did not exceed standard acceptable concentration levels in the up-gradient wells. See Ex. H-l at 15-16. When combined with iron, however, the sum of the two contaminants exceeded 0.5 mg/1 in the older up-gradient well cluster, perhaps due to the metal casings. Id. at B-l to B-2 (Table B-l). In the down-gradient wells, the standard for manganese was frequently exceeded, though not to the same magnitude as iron standing alone. See id. at B-l to B-9 (Table B-2). There is no DEC surface water standard for manganese, but manganese concentrations in such waters “are substantially higher” than those observed in up-gradient groundwater wells and comparable to levels in down-gradient wells. Id. at 20, B-11 to B-13 (Table B^4). Concentration levels tended to increase in the south-southeasterly direction from the landfill toward the creek and Canaan Lake. See Ex. 33 at 4-49 to 4-53; Ex. H-1 at 19, B-11 to B-13 (Table B-4). In particular, surface water testing in the intermittent stream north of the pond revealed mean concentrations of manganese of 0.375 mg/1, 0.377 mg/1, 2.01 mg/1, 0.519 mg/1 and 0.542 mg/1. Ex. H-1 at B-11 (Table B-4). The pond contained a mean concentration of manganese of 4.78 mg/1. Id. at B-12 (Table B-4). Three samplings of surface water south of the pond in the creek showed mean concentrations of 5.99 mg/1, 5.90 mg/1 and 7.05 mg/1. Id. Testing of standing water at four points north of the intermittent stream near the landfill reflected mean manganese concentrations of 0.055 mg/1, 0.029 mg/1, 0.019 mg/1 and 0.026 mg/1. Id. at B-13 (Table B-4). Although manganese can produce a blackish tinge in water, it possesses no significant health risks and is not a threat to aquatic life. See Ferrara Tr. at 38, 91. “It’s merely an aesthetic consideration in conjunction with the iron.” Id. at 38. However, since iron precipitates so dominate, no impact could be observed from the elevated levels of manganese. See id. at 91. 4. Other Chemicals Dr. Ferrara observed that groundwater testing revealed the presence of five organic chemicals “that warrant attention.” See Ex. H-l at 13. Two of these, bis(2ethylhexyl)phthalate and methylene chloride could be “discounted” as “common laboratory contaminants.” Id. Three others, however, appeared in more noticeable levels. Id. Detections of benzene, chloro-benzene and dichlorobenzene, especially in the M, W, MW-2-S and MW-3-S wells, “suggest that the landfill may be leaching some organic chemicals” although'“[l]arge scale organic chemical pollution of the ground water does hot appear to be occurring” as a result of these chemicals. Id. Dr. Ferrara’s report and testimony reinforced Veraldi’s testimony in the face of the Town’s concerted efforts to discredit Veraldi’s protocol for his samplings and to cast aspersions on the value of his testimony because of his low standing in his college ranks. See, e.g., Tr. at 105-115, 230-33, 338-39. In concluding, as did Dr. Fer-rara, that “the leachate plume that contains contaminants ... is traveling in a direct path that impacts Motts Pond and impacts it severely enough to cause the environmental conditions that are present,” Tr. at 45, Veraldi based his opinion, like Dr. Ferrara, “mainly” on the Phase I and Phase II reports. Id.; see Ferrara Tr. at 23, 27. Veraldi also testified that he had “physically tracked this Iron laden plume directly into Motts Creek.” Tr. at 76. C. Elimination of Other Sources Dr. Ferrara acknowledged that a variety of down-gradient sources other than the landfill, including plaintiffs’ homes, sewage systems, lawn runoff, business use, a cemetery or rainfall, could contribute to down-gradient surface water contamination. See Ferrara Tr. at 16, 71. However, Dr. Fer-rara agreed with Veraldi that “other sources” do not explain the contamination of the pond and creek. See Ex. H-l at 14. As he testified: [Tjhere were some other possibilities suggested as potentially causing that, including impacts from the surrounding land uses but if that were the case, then we would have seen changes in the up gradient wells as well ... we would have seen the same quality in the up gradient well. Another suggestion was potentially that septic systems, residential use below the landfill may have impacted the down gradient wells. If that were the case, we would have seen probably more impact to nitrate. We would have also not seen impacts to some of the wells which are immediately down gradient from the landfill but not at a point where they could have yet been impacted by other land uses in the surrounding area. On my site visit, I didn’t see any other likely causes for the kinds of impacts that are observed in those wells. Ferrara Tr. at 23-24. Thus, as Dr. Ferrara stated in his report, “given the material or other information presented in this case, concluding that such activities are responsible for the observed ground water, quality, borders on speculation.” Ex. H-l at 14. DISCUSSION Given the foregoing facts, the Court concludes that the Town violated the federal Resource Conservation and Recovery Act but not the Clean Water Act. I. Resource Conservation and Recovery Act A. Statutory and Regulatory Framework “RCRA is a comprehensive environmental statute that governs the treatment, storage, and disposal of solid and hazardous waste.” Meghrig v. KFC W., Inc., 516 U.S. 479, 483, 116 S.Ct. 1251, 134 L.Ed.2d 121 (1996). Its underlying purpose is twofold: First, it creates a “cradle-to-grave” regulatory framework, Connecticut Coastal Fishermen’s Ass’n v. Remington Arms Co., 989 F.2d 1305, 1313 (2d Cir.1993), the aim of which is to “reduce the generation of hazardous waste and to ensure the proper treatment, storage, and disposal of that waste which is nonetheless generated, ‘so as to minimize the present and future threat to human health and the environment.’ ” Meghrig, 516 U.S. at 483, 116 S.Ct. 1251 (quoting 42 U.S.C. § 6902(b)); see also Prisco v. A & D Carting Corp., 168 F.3d 593, 608 (2d Cir.1999). Second, it provides' for litigation to enforce this prophylactic regulatory framework and to redress those situations where the treatment, storage or disposal of solid or hazardous waste may actually have caused “an imminent and substantial endangerment to health or the environment.” See 42 U.S.C. §§ 6972(a)(1)(B), 6973(a). RCRA was enacted in 1976 but had its antecedents in the Solid Waste Disposal Act of 1965. See Pub.L. No. 94-580; see also Pub.L. No. 89-272, 1965 U.S.C.C.A.N. (79 Stat.) 992 (codified at 42 U.S.C. §§ 3251 to 3254f). RCRA substantially amended the earlier statute and, as a result, the terms “RCRA” and “Solid Waste Disposal Act” now are often used synonymously. See Environmental Def. Fund v. Wheelabrator Techs., Inc., 931 F.2d 211, 212 (2d Cir.) (RCRA is “often called the ‘Solid Waste Disposal Act’ ”), cert. denied, 502 U.S. 974, 112 S.Ct. 453, 116 L.Ed.2d 471 (1991). RCRA was one of several environmental statutes enacted by Congress within several years of each other to address environmental concerns. RCRA contains three citizen suit provisions: Except as provided in subsection (b) or (c) of this section, any person may commence a civil action on his own behalf— (1)(A) against any person (including (a) the United States, and (b) any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this chapter; or (B) against any person, including the United States and any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution, and including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or who 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 endanger'ment to health or the environment; or (2) against the Administrator [of the EPA] where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator. 42 U.S.C. §§ 6972(a)(1)(A), 6972(a)(1)(B), 6972(a)(2). Section 6972(a)(1)(B) came into existence when RCRA was amended in 1984, see Pub.L. No. 98-616, 1984 U.S.C.C.A.N. (98 Stat.) 3221 (codified at 42 U.S.C. §§ 6901 et seq.), whereas §§ 6972(a)(1)(A) and (a)(2) date to RCRA’s enactment in 1976. See Pub.L. 94-580. Thus, prior to 1984, a citizen suit could only be brought against anyone in violation of RCRA’s regulatory scheme, .under § 6972(a)(1)(A) (sometimes referred to as an “(a)(1)(A)” suit), or against the Administrator of the EPA (the “Administrator”) to compel the Administrator to discharge a non-discretionary responsibility, under § 6972(a)(2). The 1984 amendments retained those earlier citizen suit provisions but, by enacting § 6972(a)(1)(B) (sometimes referred to as an “(a)(1)(B)” suit), also conferred direct authority for citizens to bring suit to enjoin imminent and substantial health or environmental endangerments related to solid or hazardous waste. Section 6972(a)(1)(B) represented “an effort to invigorate citizen litigation,” see Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1158 (9th Cir.1989) (citing H.R.Rep. No. 98-198, at 53-54 (1984), reprinted, in 1984 U.S.C.C.A.N. 5576, 5612-13), and was “intended to complement, not conflict with, federal regulatory and enforcement programs.” Claire Whitney, Citizen Suits in the 1984 RCRA Amendments, 138 PLI/Crim. 55, 60-61 (Sept. 1, 1985). RCRA creates several barriers to the institution of citizen suits. First, in all such suits, a plaintiff must notify the Administrator of the citizen’s intent to initiate litigation. See 42 U.S.C. §§ 6972(b)(1), (b)(2), (c). In suits under § 6972(a)(1)(A), notice must also be given to “the State in which the alleged violation occurs,” and “to any alleged violator of such permit, standard, regulation, condition, requirement, prohibition, or order.” 42 U.S.C. §§ 6972(b)(1)(A)(ii), (iii) (emphasis added). In suits under § 6972(a)(1)(B), notice must also be given to “the State in which the alleged endangerment may occur,” and to “any person alleged to have contributed or to be contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste referred to in subsection (a)(1)(B).” 42 U.S.C. §§ 6972(b)(2)(A)(ii), (iii) (emphasis added). In suits under § 6972(a)(2), notice only need be given to the Administrator. See 42 U.S.C. § 6972(c). The rationale for notice requirements is to afford the government or the violator an opportunity to act in order to obviate the need for citizen intervention. See Hallstrom v. Tillamook County, 493 U.S. 20, 29, 110 S.Ct. 304, 107 L.Ed.2d 237 (1989); AM Int’l, Inc. v. Datacard Corp., 106 F.3d 1342, 1349 (7th Cir.1997). In addition to these notice requirements, citizen plaintiffs must satisfy strict delay requirements — waiting sixty days after providing notice before commencing a suit under § 6972(a)(1)(A) or § 6972(a)(2), and delaying ninety days in a § 6972(a)(1)(B) action — unless an identical exception Congress has carved out in respect to each of these delay provisions is applicable. See 42 U.S.C. §§ 6972(b)(1)(A), (b)(2)(A), (c). Under