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January 20, 1993

COUNTY OF ORANGE, et. al., Defendants.


The opinion of the court was delivered by: GERARD L. GOETTEL


 The cause of environmental protection has justly garnered national attention in recent years, increasing the sensitivity and concern of citizens while focusing attention on ways to combat the environmental damage caused by modern society such as through recycling programs. While searching for ways to protect the natural world while nevertheless allowing society to enjoy the material fruits of its labor, we face a struggle between two inescapable and hopelessly intertwined problems: we continue to produce massive amounts of garbage which must be put somewhere and yet most of us, fearing the environmental fallout of its disposal, cling to the idea of "not in my back yard." Not surprisingly, the ongoing tug-of-war between local governments seeking to rid themselves of their garbage and citizens worried about the environmental dangers it poses often spills into the courts. Such is the situation in the present case.


 This case involves the operation of a sanitary landfill. In 1971, Orange County (the "County") acquired some three hundred acres of land from the State of New York. The original landfill, now closed and capped, operated on only a 75-acre portion of the property. In 1987, defendant Orange County applied for a permit to construct a 154-acre expansion to the existing landfill. Administrative hearings were held in which plaintiff Orange Environment, Inc. ("OEI") participated. The Administrative Law Judge recommended against approving the permit on grounds that the landfill was a possible danger to the Southern Walkill Valley aquifer and inadequate consideration had been given to alternative sites. That recommendation was adopted by the Commissioner of the Department of Environmental Conservation ("DEC").

 After the County submitted a revised application a permit was eventually issued by DEC in December 1988 for a smaller 75-acre landfill expansion that would operate in four phases. Construction on Phase I, designed to receive over 700,000 cubic yards of fill, was completed in October 1990. Eighty percent of Phase II was completed when work ceased in February 1992. The cost of constructing the landfill expansion totaled was financed by the issuance of General Obligation Bonds. The County states that it will owe approximately $ 42.5 million in principal and interest on those bonds. The County further claims that it continues to lose $ 1 million per month in "tipping fees"--payments for private use--while the landfill expansion sits idle.

 The is some dispute regarding when the issue of federally protected wetlands first arose. OEI notified the Environmental Protection Agency ("EPA") of the destruction of federally protected wetlands some two years after construction had begun on the landfill expansion. Defendants point to evidence suggesting that OEI had information concerning wetlands on the expansion site long before this. The County also maintains that DEC officials were aware of wetlands on the site based upon site visits but had concluded that none were state-protected wetlands.

 Plaintiffs, however, also claim that the County knew of the existence of federally protected wetlands before construction began on the 75-acre expansion in 1988 but failed to disclose this information to DEC or the EPA. In particular, plaintiffs contend that County officials were informed in a December 1988 report by Wehran Engineering, the designers of the landfill expansion, that wetlands had already been disturbed without a permit or notification to the United States Army Corps of Engineers (the "Corps"), and before construction could proceed, the Clean Water Act ("CWA") required the County to notify the Corps.

 In December 1991, before the landfill expansion opened, and after the County and the EPA were given plaintiffs' pre-suit notice of intent to sue pursuant to 33 U.S.C. § 1365(b) of the Clean Water Act, plaintiffs OEI, a not-for-profit New York corporation, and Arthur and Sandra Soons brought suit against the County and various County officials. They claimed that certain unpermitted discharges of pollutants had occurred violating § 301 of the Clean Water Act, 33 U.S.C. § 1311. In particular, plaintiffs claimed that almost fifty acres of wetlands had been filled without a permit. The County concedes that the placement of fill into the landfill expansion and the subsequent removal of wetlands violated the CWA since at least one acre of wetlands was filled at the landfill. Def. Memorandum at 12. Plaintiffs seek restoration of the lost wetlands and penalties for defendants' unpermitted discharges.

 In January 1992, the County announced a suspension of its construction activities. The County hired a consultant to investigate the landfill site and render an opinion. The consultant's opinion was that restoration of the lost wetlands would require huge amounts of soil from another wetland site and its success would be speculative at best.

 In February, the EPA notified the County that it was investigating possible unpermitted wetlands filling at the landfill expansion. Shortly thereafter, the County and the EPA began negotiating a Compliance Order. Discussions were held in New York regarding the forthcoming order at which the EPA was represented by Mr. Del Vicario. The EPA issued a Compliance Order in July 1992. Among other things, the Order required the County to restore lost wetlands off site and allowed the County to recommence a phased operational use of the landfill expansion subject to satisfactory completion of the off-site wetlands restoration.

 Following the issuance of the Compliance Order, plaintiff filed a motion for a preliminary injunction in this court. The Hudson Riverkeeper Fund, Inc., simultaneously moved to intervene. The intervention was granted and decision on the preliminary injunction motion was reserved pending an evidentiary hearing at which time the preliminary injunction motion was to be consolidated with a decision on a permanent injunction.

 In the interim, at least three things of note have occurred. First, in August 1992, the DEC issued a permit to operate three of the seven subcells of Phase I. The DEC, however, attached a large number of conditions to its permit that the County must meet before operations can commence including repair of Phase I's leaking liner system and completion of Phase II's construction. The County hesitates to begin satisfying the DEC's conditions, which would entail significant expenses, before resolution of this action.

 Second, pursuant to an agreement with defendants and the court, plaintiffs and defendants each submitted the present motions for summary judgment. Plaintiffs seek a declaratory judgment that the defendant County's unpermitted use of the landfill represents a continuing violation of the CWA since no permit has been secured from the Corps before recommencing landfill operations. All parties seem to agree that the permit issue could be decisive and no material issues of fact impact it.

 Third, while a decision on the newest summary judgment motion was pending, the EPA notified Orange County on December 17, 1992 that it had begun investigating an apparent violation of the Clean Water Act consisting of unauthorized, unpermitted filling of wetlands located between the old landfill site and Phases I and II of the landfill expansion for the apparent purpose of constructing an access road. In its letter to Mary McPhillips, the County Executive, the EPA requested information regarding these most recent activities.

 Defendants concede that they neither sought nor received a CWA § 404 permit before constructing the landfill expansion. Instead, they argue as a matter of law that the EPA's Compliance Order authorizes use of the landfill expansion in exchange for substantial off-site remediation. While the parties dispute the acreage of wetlands on the site, this issue is immaterial at present since all agree that at least one acre of federally-protected wetlands was destroyed, one acre being the federal jurisdictional minimum under the CWA.


 The Clean Water Act prohibits the discharge of fill materials into the "waters of the United States" unless authorized by a Corps permit issued pursuant to 33 U.S.C. § 1344. "Wetlands adjacent to navigable waters" and their tributaries are included within the definition of "waters of the United States." 33 C.F.R. § 328.3(a)(3); 40 C.F.R. § 230.3(s); see also United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 135, 88 L. Ed. 2d 419, 106 S. Ct. 455 (1985) (§ 404 jurisdiction extends to adjacent wetlands as an integral part of the aquatic environment). Plaintiffs contend that without a § 404 permit, defendants cannot lawfully deposit more fill into the landfill expansion. They seek to enjoin defendants from using the landfill expansion until and unless the County obtains a § 404 permit from the Corps. Plaintiff maintain that defendants must either apply for an after-the-fact dredge and fill permit or restore the damaged wetlands on the site. As stated earlier, defendants' primary response is that the Compliance Order entered into with the EPA empowers the County to proceed with landfill operations without the need for a § 404 permit.

 Plaintiffs claim entitlement to summary judgment because of defendants' liability for violation of the CWA by illegally filling in wetlands without a § 404 permit. To establish the County's liability, plaintiffs must show that: (1) the area involved contained wetlands; (2) the wetlands were filled in by the County; and (3) the County had no "fill permit." Stoeco Dev. v. Dept. of Army Corps of Eng'rs, 792 F. Supp. 339, 344 (D.N.J. 1992).

 The present summary judgment motions focus on the third element. The key question is whether the County is required to secure a § 404 permit from the Corps to operate the landfill expansion after receiving the Compliance Order from the EPA. It is the defendants' position that the Compliance Order is sufficient authority for their resumption of activities at the landfill expansion and no after-the-fact permit from the Corps is required. Plaintiffs strenuously dispute this.

 The Clean Water Acts's objective is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251. Under the CWA, the discharge of dredge or fill materials into waters of the United States is prohibited unless authorized by a permit issued by the Corps of Engineers pursuant to § 404 of the CWA. 33 U.S.C. § 1311(a); see also Southern Pines Associates v. United States, 912 F.2d 713, 715 (4th Cir. 1990).

 In administering and enforcing the Clean Water Act, the EPA and the Army Corps of Engineers share responsibility. See National Wildlife Federation v. Hanson, 859 F.2d 313, 315 (4th Cir. 1988). The Corps has the non-discretionary duty to regulate the discharge of dredged or fill materials into United States waters by issuing permits after applying guidelines established by the EPA. See 33 U.S.C. ...

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