the County admitted allowing leachate from the facility to drain or discharge into the Wallkill without an SPDES permit. With respect to the leachate discharges and other violations of the landfill permit conditions and New York law regulating waste management and mineral resources, the DEC assessed a $ 375,000 penalty against the County, but waived $ 300,000 which was to be applied towards an environmental credit project. The County also stipulated that it would pay a $ 25,000 penalty per occurrence of any future unpermitted discharges.
Despite a provision in the order requiring that the County give DEC monitors access to the landfill to ensure compliance with the order, there are no records of a DEC monitor until March of 1990. In 1990, the DEC monitor identified 19 instances of leachate discharge into the surface waters but no penalties were assessed against the County.
In 1991, the monitor reported six instances of leachate discharge into surface waters as well as 64 violations for uncontrolled leachate on or near the site and for failure to minimize leachate and prevent its discharge into surface waters. While these violations were probably due in part to the collapse of a portion of the existing leachate collection system in 1990, the DEC did issue some stipulated penalties.
On November 1, 1991, two weeks after OEI issued a notice of intent to bring suit the DEC informed the County that it was commencing a new enforcement proceeding.
ii. Applicable case law
Defendants argue that state agencies are entitled to "considerable latitude" in their enforcement efforts. They claim this standard is supported both by case law and by the CWA itself. The First Circuit has written "where an agency has specifically addressed the concerns of an analogous citizen's suit, deference to the agency's plan of attack should be particularly favored." North & South Rivers Watershed Ass'n, Inc. v. Scituate, 949 F.2d 552, 557 (1st Cir. 1991). The District Court of Connecticut similarly held that plaintiffs who assert that a state prosecution is not diligent bear a heavy burden. Connecticut Coastal Fishermen's Ass'n v. Remington Arms Co., Inc., 777 F. Supp. 173, 183 (D.Conn. 1991), aff'd in part and rev'd in part, 989 F.2d 1305 (2d Cir. 1993). It held, "the court must presume the diligence of the State's prosecution of a defendant absent persuasive evidence that the State has engaged in a pattern of conduct in its prosecution of the defendant that could be considered dilatory, collusive or otherwise in bad faith." Id. at 183.
Defendants argue that the language of the CWA supports granting wide discretion to the state. The statute states that it is Congress' policy and goal "to recognize, preserve, and protect the primary responsibilities and rights of the States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources . . ." 33 U.S.C. § 1251(b).
We considered the issue of diligent prosecution in NYCFA, supra. In that case, we noted that the "main purpose behind that limitation of citizen suits is to permit the federal and state governments to exercise their powers to remedy violations of the Clean Water Act" and that "a citizen suit may not 'seek to recover fines and penalties that the government has elected to forgo.'" Id. at 165, quoting, Atlantic States Legal Found. v. Eastman Kodak Co., 933 F.2d 124, 127 (2d Cir. 1991). Thus, we declined to interpret section 1319(g)(6)(A) to require the actual imposition of penalties before a citizen suit could be precluded because "such an interpretation would unnecessarily undermine state and local enforcement efforts." NYCFA, 772 F. Supp. at 165.
Plaintiffs argue that DEC's actions in this case do not constitute diligent prosecution. They argue that the DEC was aware of leachate discharge as early as 1975, and, despite the DEC's on-site monitor, violations still continue. They contend that the DEC has allowed the County to buy its way out of compliance by Environmental Credit Projects. Although violations were cited and fines were threatened, they were seldom levied. When the DEC did assess fines, they were usually waived.
Defendants maintain that the DEC was diligently addressing the leachate problem since 1986 and that despite a failure to levy significant fines, the DEC's involvement has been steadily increasing.
They argue that the landfill was originally constructed without a liner at a time when leachate outbreaks were the norm. As such, they contend that the DEC sought to focus its efforts on insuring that the County took appropriate measures to alleviate the leachate problem rather than assessing heavy fines. They argue that it was permissible for the DEC to opt to "bridge the County" into compliance with the CWA rather than adopting a punitive stance.
We note that the relevant inquiry for defendants' motion to dismiss is not whether or not the DEC's actions can currently be categorized as diligent, but whether or not they could be so categorized in late 1991. However, we also note that the standard for evaluating the diligence of the state in enforcing its action is a low one which requires due deference to the state's plan of attack and that part of the DEC's difficulty in the earlier stages of its enforcement efforts was caused by the recalcitrant and cavalier attitude adopted by the County. Indeed, it appears that the problem was not that the DEC was turning a blind eye to the County's violation, but that the county consistently failed to comply with the terms of the Consent Orders.
Because we think that the DEC's actions and enforcement decisions are entitled to a good degree of deference, we find that § 1319(g)(6)(A) precludes a civil penalty action under the citizen suit provisions of the CWA.
2. Scope of Section 1319(g)(6)
Defendants argue that if § 1319(g)'s requirements for preclusion are satisfied, it bars a citizen suit in its entirety. They claim that the section's bar to a "civil penalty action . . . under section 1365" incorporates all actions which arise under the CWA's citizen suit provisions, including those seeking injunctive relief and that the word "action" is "a collective noun, inclusive of all claims for relief." In support of its position, it cites the First Circuit's decision in Scituate.
The Scituate court based its interpretation of § 1319(g) on the language contained in § 1365 which does not distinguish between civil penalty actions and other civil actions. Section 1365 simply provides:
(a) Except as provided in subsection (b) of this section and section 1319(g) (6) of this title, any citizen may commence a civil action on his own behalf-