ELR Citation: ELR 20746
No(s). 91 Civ. 8688 (GLG) (S.D.N.Y. Jan 20, 1993)

The court holds that a compliance order issued by the U.S. Environmental Protection Agency (EPA) to a New York county that purported to settle the county's violations of the Federal Water Pollution Control Act (FWPCA) in constructing a landfill expansion does not excuse the county from obtaining a permit under FWPCA §404 before commencing operations at the expansion. The court finds that the order does not specifically state that the county need not obtain a §404 permit. Instead, the order envisions that the county will secure a §404 permit for the off-site wetlands restoration project it must complete pursuant to the order as a precondition to opening the expansion. The court holds that the compliance order does not preempt the plaintiffs' citizen suit under FWPCA §505(b)(1)(B), because the order does not qualify as a federal court proceeding. Further, if the county's FWPCA violations are continuing, or if the terms of a settlement raise a realistic prospect that continuing violations exist, the plaintiffs' citizen suit may continue. Finding no clear authority in the case law on whether an EPA compliance order obviates a party's need to obtain a §404 permit, the court relies on the explicit language of the compliance order in finding that the order expressly indicates that it shall not be used as a substitute for compliance with the FWPCA's requirements. The court notes that the U.S. Army Corps of Engineers (Corps) has indicated that it stands ready to process the county's application for an after-the-fact permit. If it viewed EPA's compliance order as the functional equivalent or a complete substitute for a §404 permit, there would be little need for any further permits from the Corps for the landfill.

The court finds nothing in the FWPCA that evidences an intent by Congress to allow EPA to use its powers to issue compliance orders under FWPCA §309 as a substitute for a §404 permit. Further, it would be anathema to find that the compliance order was the functional equivalent of a §404 permit for the discharge of fill into federal wetlands when the permitting process requires public hearings while the process leading to the compliance order included none. Denying citizens any opportunity to register their opinions, submit evidence, or challenge the environmental conclusions reached by the government or permit applicants would enable potentially harmful activities to proceed with governmental approval without ever having been tested by public scrutiny. This would undermine a foundation of the FWPCA: the public's role in safeguarding the integrity and security of the nation's waters and wetlands. Finally, the court holds that the compliance order does not render all activities at the landfill expansion past violations. Wetlands soil still survives in and around the individual dump sites at the landfill, casting doubt on the county's assertion that future use of the landfill expansion will not involve filling wetlands.

Counsel for Plaintiffs
Michael H. Sussman
25 Main St., Goshen NY 10924
(914) 294-3991

Jeffrey P. Soons
Soons Circle, New Hampton NY 10958
(914) 374-5471

Counsel for Plaintiff-Intervenor
Robert F. Kennedy Jr.
Natural Resources Defense Council
40 W. 20th St., New York NY 10111
(212) 727-2700