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April 18, 1996


The opinion of the court was delivered by: GOETTEL


 The plaintiffs move for partial summary judgment and a preliminary injunction, including a declaratory judgment. *fn1" The defendants, Orange County and its officials, cross move for partial summary judgment and to dismiss the action.

 Logic would indicate that when both parties move for summary judgment, there are few, if any, facts in dispute and the Court is called upon simply to determine issues of law. However, when as here the parties file hundreds of pages of affidavits and thousands of pages of exhibits, it becomes apparent that there are many disputed factual issues. This is clearly confirmed by the parties local Rule 3(g) statements in which each side disputes the facts on which the other bases their motion, while at the same time contending that the facts supporting their motion are not in dispute.


 The following is a brief resume of pertinent facts leading up to the current motion. *fn2"

 In 1971, Orange County (the "County") acquired some 300 acres of land from the State of New York for use as a landfill. The Orange County Landfill (the "landfill") is located 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.

 On July 6, 1973, the County submitted plans for the landfill to the New York State Department of Environmental Conservation ("DEC"). The plans 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 on September 30, 1974 operation began in the landfill area nearest to the Cheechunk Canal.

 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.

 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 naturally occurring layer of clay and silt. Because fine grained deposits do not transmit fluids easily, clays underneath a landfill can retard the downward migration of leachate. *fn3" Unfortunately, the clay/silt layer beneath the landfill is not of uniform depth or composition. "Windows" occur in areas where the clay and silt is absent and sand appears at the ground's surface which can provide a pathway for leachate to enter the aquifer. Underneath the sand layer is a layer of bedrock. While the bedrock 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 layer can serve as conduits for contaminant migration away from the landfill. The contaminants may travel either down into ground water contained in bedrock fractures or sideways to surface waters contained in riverbeds. Other possible leachate pathways also exist.

 Leachate was first detected in 1975 when the DEC recorded two observations of leachate at the landfill. Leachate was also observed entering a water course once in 1976 and twice in 1977. Thereafter, numerous instances of leachate discharges were noted.

 In 1981, the DEC issued the County an operating permit valid until August 1983 under new state landfill regulations. In addition to compliance with state regulations, the permit included conditions involving leachate.

 On August 22, 1983, ten days after the 1981 permit expired, the County requested and received from the DEC an extension permitting operation until June 30, 1984. The extension was granted without public discussion or participation. In August of 1985, the DEC issued a new policy prohibiting the construction or expansion of landfills over principal aquifers and defined the landfill area as one such area.

 On December 31, 1986, the County and the DEC executed a consent order relating to the County's unpermitted use of the landfill since the permit had expired at the end of June 1984. 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 implemented. The order did not, however, provide a specified date on which the permanent system must be in operation.

 After obtaining extensions of its compliance deadlines, the County submitted to the DEC an interim leachate management plan in February of 1987. At the DEC's request, this plan was revised and resubmitted in April of that year. The DEC approved it, subject to further modifications made on May 16, 1987. The installation of the interim leachate management 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. It was contemplated that the old landfill would be closed, and (to the extent possible) sealed by the end of 1991, and replaced by an expansion landfill.

 The problems cited in the 1987 complaint had not been resolved by early 1989, and on February 23, 1989, the DEC sent a letter to the County. The letter chastised the County for failing to fully implement the interim leachate management plan despite many reminders from the DEC. The DEC warned that the County's "persistent failure to control the leachate" on its existing landfill jeopardized its pending application for an expansion permit.

 In 1987, the County had applied for a permit to construct a 154-acre expansion to the existing landfill. 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. The DEC also maintained that the expansion was not "grandfathered" out of the state environmental impact review requirement.

 A mandatory public hearing was held on issues relating to the expansion application beginning on November 18, 1987. Plaintiff Orange Environment, Inc. ("OEI") participated in the permitting process as a party in interest, and had previously submitted a letter setting forth its concerns. Although the expansion hearing was originally consolidated with the pending enforcement action, the enforcement action was adjourned at the DEC's request. The expansion 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 which OEI had supported. The DEC approved this revised application in December of 1988 for a 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 for the winter in December of 1991. The County financed the cost of constructing the landfill expansion by the issuing General Obligation Bonds totalling approximately $ 42.5 million in principal and interest.

 In July of 1989, the DEC had issued permits for the construction and operation of the expansion. The placement of fill materials was performed as provided by the DEC construction permit. (It was not until two years later that the need for Federal permits became a public issue.)

 Meanwhile, the County and the DEC entered into a second Consent Order on July 7, 1989 concerning violations at the existing landfill. This Order alleged five violations of the 1986 Consent Order, including failure to implement the revised leachate management plan and failure to meet various deadlines. The Order also alleged several violations of New York landfill regulations. The County admitted violation of the 1986 Order and drainage of leachate without a permit.

 In consideration for the DEC's withdrawal of its complaint, the County agreed to spend $ 300,000 on 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 for ...

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