Orange Environment, Inc. v. County of Orange, 91 Civ. 8688(GLG).

• Decision Date: 22 August 1994
• Docket Number: No. 91 Civ. 8688(GLG).,91 Civ. 8688(GLG).
• Citation: 860 F. Supp. 1003
• Parties: ORANGE ENVIRONMENT, INC. and Arthur E. Soons and Sandra Soons, Plaintiffs, Hudson Riverkeeper Fund, Inc., Plaintiff-Intervenor, v. COUNTY OF ORANGE, Joseph G. Rampe, County Executive, and Orange County Department of Public Works, J. Daniel Bloomer, Commissioner, Defendants.
• Court: U.S. District Court — Southern District of New York

860 F. Supp. 1003

ORANGE ENVIRONMENT, INC. and Arthur E. Soons and Sandra Soons, Plaintiffs Hudson Riverkeeper Fund, Inc., Plaintiff-Intervenor, v. COUNTY OF ORANGE, Joseph G. Rampe, County Executive, and Orange County Department of Public Works, J. Daniel Bloomer, Commissioner, Defendants.

No. 91 Civ. 8688(GLG).

United States District Court, S.D. New York.

August 22, 1994.

COPYRIGHT MATERIAL OMITTED

Michael H. Sussman, Scott A. Thornton, Goshen, NY, Elizabeth Barbanes, Mt. Kisco, NY, for plaintiff Orange Environment.

Jeffrey P. Soons, Goshen, NY, for plaintiffs Arthur E. and Sandra Soons.

Leboeuf, Lamb, Greene & Macrae by Robert J. Alessi, Elise N. Zoli, Albany, NY, for defendants.

OPINION

GOETTEL, District Judge.

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 than 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' crossmotions for summary judgment and grant in part and deny in part defendants' motion to dismiss.

FACTS

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,¹ 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 become 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).² 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. Part 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 they 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...