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August 22, 1994

COUNTY of ORANGE, JOSEPH G. RAMPE, County Executive, and Orange County Department of Public Works, J. DANIEL BLOOMER, Commissioner, Defendants.

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


 This case involves the on-going efforts on the part of the state, environmental groups, and private plaintiffs to force a county landfill to comply with the federal environmental laws. The result has been a long and complicated battle fought on both legal and political fronts. From the outset, the county's effort to obey the environmental laws has been less then vigilant. Indeed, early on, the county showed a reprehensible lack of concern over the state's enforcement measures. However, it also appears that genuine efforts to address environmental concerns have been frustrated by political scuffles, the pressures of a mounting "garbage crisis," and the very real limitations of a landfill facility built without an engineered liner. In the face of the parties' inability to reach a practical technological solution, the legal battles continue.

 The plaintiffs Orange Environment ("OEI") and Arthur E. and Sandra Soons filed this citizen suit pursuant to § 505(a) of the Clean Water Act ("the CWA"), 33 U.S.C. § 1365(a) and § 7002 of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6972 on December 31, 1991.

 Defendants Orange County ("the County"), Joseph G. Rampe, County Executive, Orange County Department of Public Works, and J. Daniel Bloomer, Commissioner of the Department of Public Works, now move to dismiss several of plaintiff's claims for lack of jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(1), or, in the alternative for summary judgment, pursuant to Fed. R. Civ. P. 56(c). Plaintiffs cross-move for summary judgment.

 The crux of defendants' motion is their claim that, at the time plaintiffs filed this suit, the New York Department of Environmental Conservation ("DEC") was in the process of prosecuting an ongoing administrative action concerning the situation alleged in the complaint and that the DEC action divests this court of subject-matter jurisdiction. They also argue that DEC action and New York law supersede certain of plaintiffs' RCRA claims and that the pendent state claims should be dismissed.

 After careful consideration of the applicable law and facts, we deny the parties' cross-motions for summary judgment and grant in part and deny in part defendants' motion to dismiss.


 A. Procedural Background

 On October 18, 1991, OEI served the County, the United States Environmental Protection Agency ("EPA"), and the DEC with a notice of intent to bring suit. On December 30, 1991, plaintiffs filed this lawsuit, pursuant to the citizen suits provisions in the CWA, 33 U.S.C. § 1365(a), and RCRA, 42 U.S.C. § 6972(a)(1)(A) and (B). The complaint alleged, inter alia, that defendants violated the CWA by discharging pollutants, including landfill leachate, *fn1" into the Wallkill River and Cheechunk Canal without a required permit. 33 U.S.C. § 1311(a), 1342.

 In addition, the plaintiffs brought a citizen suit under a RCRA provision authorizing a civil action where the defendant is "alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has been effective pursuant to this chapter." 42 U.S.C. § 6972(a)(1)(A). Specifically, plaintiffs alleged that the defendants violated RCRA's permitting requirements, id., § 6925(a), and open dumping provisions, id., §§ 6944, 6945. They also alleged that a citizen suit was proper because the landfill's continued release of hazardous pollutants represented an imminent and substantial endangerment to health and the environment in violation of 42 U.S.C. § 6972(a)(1)(B). Finally, the Soons alleged various state common law claims.

 On February 18, 1992, defendants moved to dismiss all the Soons' claims. We denied defendants' motion by bench decision on March 6, 1992. On July 31, 1992, we granted the Hudson Riverkeeper Fund, Inc.'s ("the Riverkeeper") motion for leave to intervene.

 In the meantime, the County was seeking to expand the landfill into land which contained federally protected wetlands. In July of 1992, the County and the EPA entered into a CWA § 309(a), 33 U.S.C. § 1319(a), compliance order in which the County admitted to filling federal wetlands without a permit as part of its landfill expansion plan. The order allowed phased use of the landfill expansion area in exchange for off-site restoration of wetlands.

 In response to the order, OEI moved for a preliminary injunction, pursuant to Fed. R. Civ. P. 65, to prohibit resumption of construction of the landfill expansion. On September 15, 1992, we consolidated the preliminary injunction hearing with the hearing on the requested permanent injunction and wetlands restoration.

 On December 4, 1992, plaintiffs and plaintiff-intervenor moved for partial summary judgment on the issue of whether the EPA compliance order obviated the County's need to get a § 404 permit to fill the wetlands from the Army Corps of Engineers as required by the CWA, 33 U.S.C. § 1344. Defendants cross-moved for summary judgment on the issue.

 On January 20, 1993, we granted plaintiff and plaintiff-intervenor's motion for partial summary judgment and held that the defendants were required to obtain a § 404 permit despite the EPA compliance order. See Orange Environment, Inc. v. County of Orange, 811 F. Supp. 926 (S.D.N.Y. 1993). Because our decision effectively enjoined the defendants from further expansion of the site until they received a § 404 permit, we dismissed OEI's motion for preliminary injunction without prejudice.

 Soon thereafter, then County Executive Mary McPhillips announced her desire to abandon the expansion project and commenced settlement negotiations. However, in February of 1993, the County Legislature moved to intervene as a separate party defendant in order to appeal the January 20 decision. We denied the Legislature's intervention motion. See Orange Environment, Inc. v. County of Orange, 817 F. Supp. 1051 (S.D.N.Y. 1993). The Legislature appealed, and our decision was affirmed. See Orange Environment v. Orange County Legislature, 2 F.3d 1235 (2d Cir. 1993).

 Despite, the Legislature's unsuccessful appeal, it succeed in delaying the settlement negotiations until McPhillips was voted out of office. Her successor, Joseph Rampe has decided to continue litigation rather than settle this case.

 Defendants now move to dismiss plaintiffs' remaining claims under the CWA and RCRA pursuant to Fed. R. Civ. P. 12(b)(1) or, in the alternative, for summary judgment pursuant to Fed. R. Civ. P. 56(c). *fn2" Their motion does not address plaintiffs' claims relating to the issue of the § 404 permit under the CWA and only asserts that plaintiff's claims grounded upon the discharge of leachate from the existing landfill should be dismissed. Plaintiffs oppose and cross-move for summary judgment. They seek (1) a determination pursuant to Fed. R. Civ. P. 56(d) of defendants' liability for violation of the CWA and RCRA, (2) declaratory judgment that defendants have violated the CWA and the open dumping and imminent and substantial endangerment provisions of RCRA, 42 U.S.C. §§ 6945, 6972; 40 C.F.R. § 257, and (3) a permanent injunction directing the defendants to cease from further violations of RCRA or the CWA.

 B. Landfill Background

 The crux of defendants' motion is that the State's pre-existing, ongoing administrative actions with respect to the violations at issue in the complaint operate as a jurisdictional bar to plaintiffs' citizen suit. In order to properly assess defendants' claims we must, unfortunately, delve into the depths of the landfill and its history.

 1. The Landfill Site

 The Orange County Landfill is located on approximately 301 acres in the Town of Goshen, Orange County, New York in the Wallkill River Valley. The landfill is surrounded on three sides by various parts of the Wallkill River. Further south, the Wallkill flows into the Hudson River.

 The Cheechunk Canal carries the major portion of the Wallkill's flow past the landfill on its southeast side. The original riverbed of the Wallkill, or the Old Channel, flows along the landfill's south and northwest sides.

 When the County built the original landfill, it did not construct a liner to prevent contamination from entering groundwater below the site or surface water adjacent to the site. However, a good portion of the landfill site lies over a layer of clay and silt which naturally occurs in the ground. Because fine grained deposits do not transmit fluids easily, naturally occurring clays underneath a landfill can retard the downward migration of leachate. Unfortunately, the clay/silt layer beneath the landfill is not of uniform depth or composition. In areas where the layer is absent, sand from a layer of sand and gravel underneath the clay/silt layer appears at the ground's surface. In addition, pockets of sand, which may range from 0 to 15 feet, are found within the clay/silt layer.

 The significance of coarser deposits, such as sand and gravel, is that may become saturated with fluid. Indeed, a portion of the sand/gravel layer below the landfill is saturated with water and constitutes part of the Southern Wallkill Valley Aquifer. "Windows" occur in areas where the clay/silt unit is absent and sand appears at the ground's surface. Windows below the landfill can provide a pathway for leachate to enter the aquifer.

 Underneath the sand/gravel layer is a layer of bedrock. While the bedrock unit is generally composed of solid rock, it often contains fractures through which water can move. Domestic wells in the area surrounding the landfill tap the bedrock for water. Thus, sand deposits within the silt/clay unit can serve as conduits for contaminant migration away from a landfill down into ground water contained in bedrock fractures or sideways to surface waters contained in riverbeds.

 Other possible leachate pathways are contained in dolostone, a carbonate rock which occurs in bedrock. Interconnected pore spaces appear in dolostone which transmit water. Carbonate bedrock occurs at relatively shallow depth increasing the opportunity for contamination. *fn3"

 2. Landfill History

 On July 6, 1973, the County submitted plans for the landfill to the DEC which called for three separate landfill areas on the property to occupy a total of 245 acres. The DEC issued a permit to begin construction on May 23, 1974, and operation began in the landfill area nearest to the Cheechunk Canal ("Fill Area 1") on September 30, 1974.

 The County operated the landfill from 1974 to January 1992. During that time period, approximately seven million cubic yards of predominately municipal waste was deposited on a 75-acre portion of the property.

 Leachate was first detected in 1975 when the DEC recorded two observations of leachate at the landfill. *fn4" Subsequent DEC reports show that leachate was also observed in 1976 and 1977 with one recorded instance of leachate entering a water course in 1976 and two in 1977.

 In 1976, monitoring wells around the landfills exhibited signs of groundwater contamination by iron, phenols and sulfates. While the engineer's report noted that "the groundwater quality in the area is not that good," it suggested that "something may be affecting the groundwater adjacent to monitoring well #3."

 In 1980-81, DEC monitors visited the site and issued seven reports, five of which recorded leachate discharges into the Wallkill and six of which recorded uncontrolled leachate at the site.

 In 1981, the DEC issued the County an operating permit until August 1983 under the new state landfill regulations. In addition to compliance with state regulations, the permit included twelve special conditions. Two conditions involved leachate. The permit required "if leachate is generated in a an appreciable volume, a State Pollutant Discharge Elimination System Permit ("SPDES"), pursuant to Environmental Conservation Law, Article 17, Title 8, shall be required prior to its disposal in any manner other than spray irrigation."

 It also stated that "the Permittee shall design a perimeter leachate collection system acceptable to the Department. This system shall be implemented when a significant amount of leachate is generated at the site as determined by the Department. This shall be submitted to the Department by January 1, 1982."

 On August 22, 1983 (ten days after its permit expired), the County asked the DEC to extend its permit which was done without public discussion or participation.

 By the spring of 1986, the County still had not submitted a leachate management design. On April 16, 1986, a DEC engineer wrote a letter to the County's Commissioner of Public Works informing him that "the lagoons in the Orange County Sanitary which have been used to store leachate, [were] very near their capacity." In the face of DEC penalties, she suggested that the County take steps to alleviate the situation immediately such as arranging to haul the leachate off-site. Enclosed with the letter was a permit application to transport the leachate off-site. *fn5"

 In 1986, the DEC issued 10 site reports, all of which recorded uncontrolled leachate on or near the site, but only one of which recorded leachate entering the surface waters.

 a. 1986 Consent Order

 On December 31, 1986, the County and the DEC executed a consent order relating to the County's unpermitted use the landfill which expired on June 30, 1984. The order also contained DEC allegations that the County had violated New York regulations and its original operating permit by allowing leachate to drain or discharge into surface waters without an SPDES permit and that it had failed to comply with special permit conditions requiring it to carry out a groundwater monitoring program and submit design plans for a perimeter leachate collection system.

 Although the 1986 Order recited the E.C.L.'s penalty provisions, no penalties were assessed against the County. Instead, the order required that the County submit a lifespan determination report, sub-surface investigation report, and a proposal for interim leachate removal and disposal. The order provided that the interim leachate management proposal would be in effect "until such time as a permanent leachate management system [was] in operation." However, the order did not provide that a permanent management system be in operation by a specified time. *fn6"

 The order also provided that an intermediate cover be installed over all surfaces where no additional waste would be deposited no later than 60 days after its effective date. It further required that the County submit a final closure plan no later than 120 days after the DEC approved the subsurface report.

 After obtaining extensions of its compliance deadlines, the County submitted an interim leachate management plan in February of 1987 which was revised and resubmitted in April of that year at DEC's request. The DEC approved it, subject to some modification on May 16, 1987.

 The installation of the interim leachate collection system began in June of 1987, and its eastern side was complete by the summer of 1988.

 In November of 1987, the DEC filed an enforcement complaint against the County for violation of operating conditions at the landfill.

 The problems cited in the 1987 complaint had not been cleared up by early 1989, and on February 23, 1989, Paul Keller, Regional Director of the DEC sent a letter to the County stating he was "shocked to hear that leachate has again been observed discharging into the Wallkill River." The letter chastised the County for its failure to fully implement the interim leachate management plan despite many reminders from the DEC. Keller wrote that the County's assertions that it was not dealing with the leachate because it was awaiting DEC approval was false and "reflects a cavalier attitude which [was] extremely troubling."

 Keller warned that the County's "persistent failure to control the leachate" on its existing landfill jeopardized its application for an expansion permit. He also denied the County's request to increase the height of the current elevation and recommended prompt further study of possible subsurface movement between the landfill and Wallkill riverbank.

 b. Landfill expansion

 In the meantime, the DEC was also considering the County's permit application for a landfill expansion. The County first submitted an expansion application in 1984. Despite the County's contention that it was entitled to landfill on the unused portion of the 300 acre parcel under the original 1974 permit, the DEC disagreed. It also maintained that the expansion was not "grandfathered" out of the state environmental impact review requirement. OEI participated in the permitting process as a party in interest and submitted a letter setting forth its concerns as early as 1984.

 In 1987, the County applied for a permit to construct a 154-acre landfill expansion. A mandatory public hearing was held on issues relating to the extension application beginning on November 18, 1987. Although the hearing was originally consolidated with the pending enforcement action, the enforcement action was adjourned at the DEC's request. The application was denied by the Commissioner of the DEC due to possible danger to the Southern Wallkill Valley aquifer and because inadequate consideration was given to alternative sites.

 The County then submitted a revised application for a smaller, 75 acre expansion. The DEC approved the revised application in December of 1988.

 In July of 1989, DEC issued permits for the construction and operation of the expansion. The construction permit created the Orange County Sanitary Landfill Interested Persons Board as a "continuing forum for communication between the Permittee and interested public." It also required that the County fund an Environmental Monitor for the existing facility as well as the new expansion. Finally, the permits required that the County comply with the 1986 Order as well as a second Consent Order entered into in 1989.

 In February 1992, the EPA notified the County that it was investigating the possible unpermitted filling of wetlands at the landfill expansion. Following negotiations, the EPA and the County entered into a Compliance Order in July 1992. On January 20, 1993, we granted the plaintiffs' motion for partial summary judgment and held that, despite the EPA Compliance Order, the County still had a duty to obtain a § 404 permit from the Army Corps of Engineers before commencing operations at the landfill expansion site. 33 U.S.C. § 1344.

 The County's application is currently pending before the Army Corps of Engineers.

 c. 1989 Consent Order

 Meanwhile, the County and the DEC entered into a second Consent Order on July 7, 1989 concerning the violations at the existing landfill. The 1989 Order alleged five violations of the 1986 Consent Order, including failure to implement the revised leachate management plan and failure to meet the deadline for placement of an intermediate cover over the site despite the DEC's grant of two extensions. (The intermediate cover was completed in July of 1987.) The Order also alleged several violations of the New York regulations governing landfills, including extension of the landfill without placement of a liner or the installation of a leachate collection and storage system and drainage of leachate into the Wallkill River without an SPDES permit. The County admitted to violation of the 1986 Order and to drainage of leachate without a permit.

 As consideration for the DEC's withdrawal of its complaint, the County agreed to spend $ 300,000 in the acquisition of real property for an Environmental Credit Project. The DEC also assessed a $ 375,000 civil penalty against the County, $ 300,000 of which was suspended so long as the County complied with the Environmental Credit Project. The Order also included a stipulated penalty provision in which the County agreed to pay a $ 25,000 fine for any future unpermitted discharges of leachate into the Wallkill River or Cheechunk Canal. Finally, the Order required that the County carry out a bank stability analysis and gave DEC monitors access to the facility in order to inspect the site to ensure compliance with the order.

 From March 1990 to September 1991, DEC monitor William Myers was on-site three days a week and filled out a weekly monitoring report. In 1990, Myers identified 19 instances of leachate discharge into surface waters. However, no penalties were assessed against the County. Also in 1990, part of the existing leachate collection system on the eastern side of the site collapsed. *fn7"

 In 1991, the DEC monitor identified 6 instances of leachate discharge into surface waters. It also found 64 violations for uncontrolled leachate on or near the site and for failure to minimize leachate and prevent its discharge into surface waters. These violations probably occurred in part due to the problems with the leachate collection system. The DEC issued seven stipulated penalties pursuant to the 1989 Order for the discharges into surface water.

 On November 1, 1991, two weeks after OEI issued a notice of intent to bring suit, DEC's Regional Director wrote that "neither the existing landfill closure, nor the completion of the expansion area has progressed satisfactorily." Because "sufficient evidence existed to commence enforcement action," the Director informed the County that it would soon present the County with a draft Consent Order to resolve the violations. Finally, the letter stated that the existing landfill could not be operated after December 31, 1991.

 d. 1992 Consent Order

 The order required that the County undertake an Environmental Credit Project which valued at least $ 75,000. It assessed $ 100,000 in civil penalties, but $ 75,000 was suspended so long as the County complied with the credit program. The order allowed the landfill to accept solid waste until January 1992 and required that it submit a closure plan as required by the 1986 Order although no deadline was set. *fn8"

 Despite the fact that the landfill ceased to accept waste for disposal in January of 1992, the DEC report for that year documented 31 violations for failure to minimize leachate through drainage control. On October 23, 1992, the DEC sent a letter to the County assessing $ 25,000 of the suspended $ 75,000 penalty due to violations of the 1992 Order (leachate was observed flowing into the Wallkill River on four occasions in September and October of 1992). As of December 1993, no project had been approved for the Environmental Credit Program.

 e. Classification as a hazardous waste site

 Meanwhile in April of 1992, the DEC classified the landfill as a class 2 inactive hazardous waste site. As a result of the classification, jurisdiction over the landfill closure was transferred from the DEC's Division of Solid Waste to its Division of Hazardous Waste Remediation. While the new classification required that additional studies be performed, it also made state remediation funds available. See N.Y. E.C.L. § 27-1301 et seq.9

 The DEC recognized the possibility that hazardous waste was present at the site at least as early as 1983 when it classified the landfill as a Class 2a inactive hazardous waste site. The classification indicated that the DEC suspected that hazardous waste had been disposed at the site and that further information was necessary. *fn10"

 Pursuant to final classification, Gibbs & Hill, Inc. prepared a Phase I Hazardous Waste Site Investigation for the DEC in 1988. The Phase I study consisted of the compilation of existing information, a site inspection, and a review of monitoring data. Gibbs & Hill did not recommend a Phase II study, which generally involves site specific investigations and date collection, and no Phase II study was performed.

 By March of 1992, the landfill still retained its temporary 2a classification, and the County's consulting engineers, C&S Engineers, suggested that the County contact the DEC to inquire as to the status of the review since the final classification of the landfill would have important implications on the reimbursement of closure investigation costs. Perhaps at the County's prodding, the DEC reclassified the site a month later.

 Although New York state recognizes the landfill as an inactive hazardous waste site, it is not included on the EPA's National Priorities List. Indeed, according to CERCLIS, a database maintained by the EPA which "supports and tracks the EPA's site planning and tracking functions" under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), the only actions undertaken by the EPA at the landfill were a preliminary site assessment in 1980 and a site screening inspection in 1991. No further EPA studies were done, and the landfill is not listed on the EPA's proposed or final National Priorities List of uncontrolled hazardous substances releases that are designated as priorities for long term remedial evaluation and response.

 f. Current status

 In January of 1993 a fourth Consent Order was entered into which requires that the County implement a full inactive hazardous waste disposal site remediation program and allows up to 75 percent reimbursement from the state.

 Perimeter leachate collection systems are in place along the northwestern, western and southwestern sides of the landfill. The collection systems are comprised of a buried perforated collection pipe and a runoff collection trench. The trench drains into a collection pond located in the southeastern corner of the site, and the leachate for the underground pipes is collected in storage tanks. The runoff from the collection pond and the leachate from the tanks are transported to the Newburgh sewage treatment plant. The County collects and treats approximately 1.8 million gallons of leachate per month.

 Despite the collection system, the 1993 DEC report documents 9 violations for leachate entering surface water, 13 violations for leachate outbreaks on side-slopes, and 21 instances of failure to minimize leachate through drainage control.

 A remedial investigation and feasibility study ("RI/FS") *fn11" is currently underway at the landfill, and a work plan has been approved by the DEC (work plans usually provide an evaluation of existing data and background information collected prior to an RI/FS and overview of the steps to be taken during the process).

 Because the RI/FS process may be quite lengthy, the County and the DEC have agreed to undertake an accelerated remedial action ("ARA") program. In a record of decision issued in January of 1994 ("ROD"), the DEC explained when an ARA program might be necessary. It stated

when the major source of contamination is clearly evident, the strategy for the remedial program is to conduct an early evaluation of actions that will quickly control the source of contamination. In this way, the NYDEC seeks to accelerate the remedial process by separately, designing and implementing a portion of the remedial action to address the threat. At the same time, an RI/FS will be completed to ensure that an effective overall remedy is chosen for the site.

 Pursuant to the ARA program, the DEC created a proposed remedial action plan which was presented at a public meeting on October 28, 1993 and conducted a focused feasibility study in order to examine proposed remedial alternatives.

 The remedy chosen by the DEC in the ROD is early capping pursuant to state specifications contained at 6 N.Y.C.R.R. Part 360. *fn12" According to the ROD, the cap should prevent future SPDES violations and significantly reduce leachate generation.

 In April of 1994, the County's environmental engineers prepared an "Interim Leachate and Stormwater Runoff Control Plan" which was designed to reduce or control landfill leachate and contaminated runoff prior to the completion of accelerated remedial action in accordance to the ROD. Prior to construction of the cap, the plan provides for the collection of surface ...

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