contend, the Orange County landfill expansion is not a completed project. Indeed, in many ways it is a project just beginning with further construction and operations yet to commence. And when we consider that phased operational use of the landfill expansion have yet to commence, it becomes questionable whether "after-the-fact" is even an appropriate way to characterize it.
Defendants contend that our holding will eradicate the usefulness and purpose of Compliance Orders, removing all incentive for CWA violators to enter into them with the EPA. We do not share their dire predictions. Polluters caught violating the CWA still have reason to enter into compliance orders with the EPA in order to settle cases of wholly past violations where the polluter does not intend to make future discharges. Naturally, people such as the plaintiffs here might seek to challenge the adequacy of the EPA's chosen remedies but this does not erase the usefulness for the EPA and CWA violators of addressing past violations through compliance orders.
Contrary to defendants' position, the Compliance Order has not been transformed into simply an EPA recommendation by our decision. The ordering of off-site remediation may still represent the EPA's discretionary enforcement choice regarding the fill that already sits atop wetlands. We reach no decision on the propriety of the EPA's remediation decision as opposed to restoration of the filled wetlands. We do not hold that restoration is automatic nor do we say that the unpermitted fill should remain in place. We express no opinion as to whether an "after-the-fact" permit for the filled wetlands should have been ordered by the EPA. Hence, our decision should cause no real interference with the Memorandum of Agreement between the EPA and the Corps concerning enforcement of the CWA's section 404 program. As discussed more fully below, our holding in this case simply means that the compliance order cannot authorize future unpermitted discharges of fill which might otherwise run afoul of § 404.
Lastly, we dispose of the argument raised by defendants that the Compliance Order addresses any violations of the CWA at the landfill site, effectively rendering them wholly past violations. As a result, defendants contend, plaintiffs cannot maintain their suit against the County and the County need not secure a § 404 permit.
The Supreme Court has held that citizen suits pursuing remedies for wholly past violations may not be maintained. See Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 98 L. Ed. 2d 306, 108 S. Ct. 376 (1987) (§ 1365(a) does not confer federal jurisdiction over citizens suits for wholly past violations). Plaintiffs who file a citizens suit under § 1365(a) must allege "either continuous or intermittent violation--that is, a reasonable likelihood that a past polluter will continue to pollute in the future." Id. at 57.
However, the Compliance Order issued to the County does not sweep so broadly as to transform all activities at the landfill expansion into past violations. The County concededly violated the CWA by filling in federal wetlands without a § 404 permit. In its Compliance Order, the EPA conditioned the opening of the landfill expansion on certain off-site remediation. To the extent ordering the restoration of wetlands off-site represents the EPA's enforcement for past violations--i.e., the dumping that has already occurred--the plaintiffs' citizen suit may arguably be supplanted. However, this does not mean that the renewed operations at the landfill expansion without a § 404 permit also represent past violations. As an aside, plaintiffs strenuously argue that wetland soils still exist under the Phase I and II sites.
In any event, we reject the notion that these future discharges can be viewed as part and parcel of the past filling that has already occurred at the site. Indeed, our holding that the County must acquire a § 404 permit from the Army Corp of Engineers rests on our conclusion that renewed operations at the expansion site will represent a continuing violation of the CWA despite the existence of the Compliance Order. We disagree that the issues here are solely ones of enforcement, not permitting.
Our conclusion is further bolstered by the most recent events at the landfill. As we noted earlier, the EPA notified the County in December 1992 of its investigation into the County's construction of an access road through the expansion site, construction which may have involved the unpermitted filling of wetlands located between the old landfill site and Phases I and II of the expansion. Defendants argue that an access road to the original landfill, now closed, has no relevance to the present case. Perhaps, but the fact that wetland soils survive in and around the individual dump sites at the Orange County landfill casts some doubt on the defendants' statements that "there are no surviving wetlands which would be impacted by the placement of solid waste discharges into the landfill" and "future use of the landfill expansion will not involve filling of wetlands." Def. Memorandum at 12 and 17. Building and using access roads into and around the landfill are part of the operation of a landfill. For all the foregoing reasons, it would be impossible for us to conclude that the County's landfill activities only involve past violations of the CWA.
In sum, we hold that the compliance order issued by the EPA to the County purporting to settle the County's violations of the CWA at its Orange County landfill does not remove the County's duty to obtain a § 404 permit from the Army Corps of Engineers before commencing operations at the landfill expansion site. We therefore grant plaintiffs' motion for summary judgment while concurrently denying defendants' motion for summary judgment.
Dated: White Plains, New York.
January 20, 1993
GERARD L. GOETTEL