extent the plaintiffs disagreed with the EPA and Corps approach to remediation, they could have challenged those parties by court action, as they had done earlier (see note 10), but did not do here.
LEGAL EFFECT OF EPA CONSENT REMEDIATION ORDER
The critical issue in this motion is whether the EPA's off-site remediation Order bars plaintiffs' claims for injunctive relief. Plaintiffs argue that it does not, asserting that the present condition of the landfill constitutes a continuing violation of the CWA because wetlands have not been restored to the site. As is discussed below, we reject this argument and hold that the defendants' compliance with the EPA off-site remediation Order moots plaintiffs' claims for injunctive relief.
Under the Supreme Court's holding in Gwaltney, supra, the mootness doctrine protects defendants from the maintenance of suits based solely on violations wholly unconnected to any present or future wrongdoing. 484 U.S. at 66. While the critical time for determining whether there is an ongoing violation, for civil penalties, is when the complaint was filed, see Connecticut Coastal Fishermen v. Remington Arms, 989 F.2d 1305, 1311 (2d Cir. 1993), for injunctive relief alone,
the rule is different.
"If, after the complaint is filed, the defendant comes into compliance with the Act, then traditional principles of mootness will prevent maintenance of the suit for injunctive relief as long as there is no reasonable likelihood that the wrongful behavior will recur." Atlantic States Legal Foundation v. Tyson Foods, 897 F.2d 1128, 1135 (11th Cir. 1990) (emphasis in original). As we have already discussed, there is no reasonable likelihood that the landfill operations will recommence at the site. That finding alone, however, does not resolve this issue. We must further determine whether the defendants have "come into compliance with the Act" and whether "wrongful behavior will recur." If we find that defendants are in compliance with the CWA, and that any wrongful behavior will not recur, we must dismiss plaintiffs' claims for injunctive relief as moot.
Plaintiffs would have us hold that defendants have not come into compliance with the CWA because wetlands have not been restored to the landfill site. We disagree. While plaintiff is correct that wetlands have not been restored, we hold that defendants' compliance with the EPA off-site remediation Order puts them in compliance with the CWA.
Both the EPA and the Corps were involved in the investigation and enforcement concerning the unpermitted filling of the federal wetlands. This resulted in the Compliance Order of July 1992, to which the Corps took no objection. The plaintiffs currently argue that the Corps must have a say in whether an after-the-fact section 404 permit should be issued, thereby sanctioning or condemning the existing situation.
There is of course a distinction between the CWA's permitting function and its enforcement function. The granting of an after-the-fact permit is but one of several alternatives available to the enforcement agencies. The wetlands have already been filled. The issue is what to do about enforcing the Act. The EPA has concluded that the best enforcement was an off-site remediation creating at least twice the amount of federal wetlands that had been filled. An EPA Compliance Order is clearly another one of the ways to address CWA violations. If the Corps had indicated a disagreement with the approach taken by the EPA, we might have had to resolve an inter-agency dispute. That, however, did not occur.
The regulations to the CWA, which are applicable to policies and procedures for activities performed without required Corps permits, lists "several methods discussed in the remainder of this part which can be used either singly or in combination to implement the regulations." 33 CFR §§ 326.1, 326.2. The EPA, with the consent of the Corps and acting as the lead agency, decided that a Compliance Order for off-site mitigation was the most effective way of dealing with enforcement. (For that matter, besides the implicit concurrence of the Corps, the EPA has independent enforcement authority under the CWA for unauthorized discharges.) The agency charged with implementation and enforcement of the section 404 program has interpreted the section not to require an after-the-fact permit or on-site remediation. The Court should give deference to that administrative interpretation. United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 131, 88 L. Ed. 2d 419, 106 S. Ct. 455 (1985); Chevron USA v. Natural Resources Defense Counsel, Inc., 467 U.S. 837, 842-45, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984).
We also find persuasive the Second Circuit's decision in Atlantic States Legal Foundation v. Eastman Kodak, Co., 933 F.2d 124 (2d Cir. 1991). In that case, a citizen suit was dismissed as moot where it alleged the same violations which had been the subject of a settlement between the DEC and the defendant, resulting from an enforcement action which was commenced after the filing of the citizen's suit. Although recognizing that the suit was not barred by section 505(b)(1)(B), relying on Gwaltney, the Court dismissed the suit as moot. It concluded that a citizen suing pursuant to section 505 "may not challenge the terms of the settlement between [the defendant] and the [state environmental agency] unless there is a realistic prospect that the violations alleged in the [citizen's suit complaint] will continue notwithstanding the settlement." Id. at 127.
The fact that the remediation order here does not meet the desires of the private parties is not crucial. As this Court previously held in an earlier action involving one of these plaintiffs, the "thrust of the CWA is to provide society with a remedy against polluters in the interest of protecting the environment. If the government's action achieves that end, the fact that ... any other private attorney general is barred from duplicating that effort should hardly seem surprising or harsh." Hudson River Fishermen's Ass'n v. Westchester County, 686 F. Supp. 1044, 1052 (S.D.N.Y. 1988). As we further held, parties "bringing citizen suits under the CWA are not entitled to maintain their actions simply to secure 'personalized' relief." Id.
The rights of private individuals suing with respect to environmental damage was recently the subject of a Supreme Court decision. Meghrig v. KFC Western, Inc., U.S. , 116 S. Ct. 1251, U.S. Supreme Court. The issue in that case concerned whether a citizen's suit provision of the RCRA would authorize private citizens to recover environmental cleaning costs at sites that no longer posed a contamination threat. The Supreme Court unanimously held that it did not. (Some of the remaining claims in this case are brought under the RCRA.) The Court held that private parties must file suit while conditions at the site present a substantial danger to the environment and may not sue after the problem has been remediated and the danger abated. The Court held that the RCRA focuses on present and future dangers only, unlike the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"). The issue of whether the private parties could obtain restitution under the RCRA while the dangers still existed was left open, although the opinion suggests that the Court would be reluctant to read into the RCRA remedies not clearly provided by Congress. While the CWA is not the RCRA, the general approach of confining citizen suits to ongoing contamination threats is similar.
A further practical reason exists for not adopting the plaintiffs' argument that, despite the Compliance Order, the lack of on-site remediation constitutes a violation of the CWA. If the plaintiffs were correct in their view that a section 404 permit after-the-fact is the only way of remedying an illegal fill of federal wetlands, it would be impossible for the EPA to ever negotiate a Compliance Order. Under the plaintiff's view, even if there were no existing litigation at the time of administrative proceedings, any interested party could, despite an EPA Compliance Order, at any subsequent time
commence a citizen's suit demanding removal and on-site remediation. While this somewhat smacks of civil double jeopardy, there would be no impediment to it if plaintiffs' view of the law is correct.
For the foregoing reason, we uphold the EPA and the Corps' determination expressed in the Compliance Order, and find that the County's compliance with that Order put them in compliance with the CWA.
We also hold that the site's continuing lack of wetlands does not constitute "wrongful behavior" precluding a finding that plaintiffs' injunctive claims are moot. Our holding follows the Second Circuits decision in Connecticut Coastal Fishermens Assoc. v. Remington Arms Co., supra. In that case, there had been an unpermitted discharge for some 70 years of 16 million pounds of lead shot and clay fragments (fill material) into a marsh which was a habitat for one of the state's largest duck populations. 989 F.2d at 1308. The plaintiffs' complaint alleged that the lead shot and clay debris on-site constituted a permitless discharge of fill material in violation of sections 402 and 404 of the CWA. An amended complaint alleged that there was nothing to indicate that these discharges "will not resume at some later date." Id. at 1312. An administrative order in the prior year had directed that there be no further discharges and the district court dismissed the CWA claims, finding that the plaintiff had failed to establish a continuing violation. The court rejected plaintiffs argument that the lead shot previously deposited in the sound was a violation because it continued to dissolve. On appeal the Court noted that the "present violation requirement of the Act would be completely undermined if a violation included the mere decomposition of pollutants." Id. at 1313.
The present situation comes down to a question of whether the private citizens can overrule the judgment of the EPA and demand an additional and different type of remediation than that settled upon by the federal authorities. We do not believe they do have, or should have, such a power. Consequently, we grant defendants' motion for partial summary judgment.
THE REMAINDER OF THE ACTION
As can be seen from the extensive statement of facts, the filling of federal wetlands is only a small part of the problems at the Orange County landfill. Most of the difficulties arise from the fact that the landfill was located in what was governmentally a desirable place: cheap land with little or no other viable use and far from a built up residential area where citizens might complain about the operation. However, by locating the landfill in a relatively remote area which has been undeveloped, there was the risk of violating the environmental laws. That was particularly true of a site that was located between a river and a channel and over an aquifer. Consequently, even though the old landfill has been closed and the new expanded landfill has been abandoned,
and even though we have resolved the dispute concerning remediation of the federal wetlands, there still remain a number of causes of action awaiting resolution.
The County has requested that the Court order discovery to be completed within 90 days so that the unadjudicated claims can be tried as soon as possible.
The plaintiffs request that, in light of this Court's extensive involvement in the case, it not be reassigned to another judge even though my duty station has been moved from the Southern District of New York to the District of Connecticut, where I now sit by designation. Unfortunately that cannot be done. When I left the Southern District I was asked to surrender my chambers to the new judge who was finally found to replace me. Although a new courthouse has now been constructed, I am advised that there are now three full time judges, as well as a senior judge, two magistrates and a bankruptcy judge, who occupy all of the chambers and courtrooms. Consequently, the case will have to be reassigned to one of the judges in White Plains. Unless the parties indicate that some other disposition is possible, I will request reassignment in 30 days.
Dated: White Plains, New York
April 18, 1996.
GERARD L. GOETTEL