ELR Citation: ELR 20247
No(s). 91 Civ. 8688 (GLG) (S.D.N.Y. Aug 22, 1994)

The court holds that §309(g)(6)(A) of the Federal Water Pollution Control Act (FWPCA) precludes citizen groups from seeking civil penalties against a county landfill for allegedly illegally discharging hazardous pollutants into water without a permit, but does not preclude the groups from seeking injunctive relief, and that §7002(b)(2)(C) of the Resource Conservation and Recovery Act (RCRA) does not bar the groups' claims that the landfill's continued release of hazardous pollutants constitutes an imminent and substantial endangerment to health and the environment in violation of §7002(a)(1)(B). The court first holds that §309(g)(6)(A) precludes the groups' civil penalty action, because New York's Department of Environmental Conservation (DEC) is diligently prosecuting an action against the landfill under state law comparable to the FWPCA. Although DEC's enforcement efforts before October 1991—the date the groups filed their notice of intent—focused on regulating the landfill as a solid waste management facility, DEC was aware of leachate at the landfill and part of its enforcement efforts were targeted directly at the leachate problem. Also, by 1989, DEC was acting pursuant to its authority under New York's Water Pollution Control Law. Applying a standard of deference to the state's actions and enforcement decisions, the court upholds the diligence of DEC's prosecution of the violations, noting that part of the DEC's difficulty in the earlier stages of enforcement was caused by the county's consistent failure to comply with the terms of two consent orders. The court next holds that the plain language of the FWPCA and the equities of the situation support limiting §309(g)(6)'s preclusion provisions to that portion of the suit that seeks civil penalties. Thus, although the groups are not allowed to seek civil penalties for the same violations that DEC is prosecuting, they may proceed with their suit for declaratory and injunctive relief.

The court next holds that the groups' claim for injunctive relief is not moot in light of the remediation program the county and DEC are currently undertaking, because the county has failed to establish that further FWPCA violations will not occur. The latest available DEC report documented nine violations for leachate entering surface waters and 34 other leachate-related violations at the landfill in 1993. And although it appears that DEC and the county are finally working toward a solution to the leachate problem, the county cannot unequivocally state that the leachate discharges will cease once the remediation plan is fully implemented.

The court next holds that RCRA §3006(b) bars the groups' RCRA §7002(a)(1)(A) claims for violations of permitting requirements and standards, because New York's EPA-authorized hazardous waste program supersedes the permit and notification requirements of RCRA subchapter III. The court holds that §3006(b) does not, however, bar the groups' §7002(a)(1)(A) claim that defendants' operation of the landfill constitutes open dumping in violation of RCRA §4005 and 40 C.F.R. §257.2. Because RCRA's open dumping provisions are found in subchapter IV, they are not superseded by state programs authorized to carry out the goals of subchapter III. The court holds that summary judgment is inappropriate for either party on the open dumping claim, because a genuine issue of material fact remains as to whether or not the landfill is regulated under 40 C.F.R. part 257, and the county has failed to establish conclusively that it is operating under a DEC schedule that will ultimately bring it into full compliance with §4005(a).

The court next holds that RCRA §7002(b)(2)(C)'s preclusion provisions do not bar the groups' §7002(a)(1)(B) imminent and substantial endangerment claim. The court holds that §7002(b)(2)(C)(i), which bars a citizen suit where the state is diligently prosecuting an action under §7002(a)(1)(B), only prohibits citizen suits where a state has brought an action in district court. Thus, the state's administrative action here cannot be deemed an action under §7002(a)(1)(B) for purposes of invoking §7002(b)(2)(C)(i)'s bar. The court holds that §7002(b)(2)(C)(ii) does not bar the groups' claim, because the state is not engaged in a removal action under §104 of the Comprehensive Environmental Response, Compensation, and Liability Act. DEC was not authorized by the president or the U.S. Environmental Protection Agency to carry out a removal action, and that the costs DEC incurred may be recoverable under CERCLA §107 does not mean that its actions constitute a removal action under §104. The court holds that §7002(b)(2)(C)(iii) also does not bar the groups' claim, because the county has failed to establish that DEC's actions were undertaken pursuant to §104. The court holds that summary judgment for the groups on the §7002(a)(1)(B) claim is inappropriate, because a genuine issue of material fact exists as to whether the landfill presents an imminent and substantial endangerment to health or the environment.

Finally, the court denies the county's motion to dismiss the groups' pendent state-law claims.

[Prior decisions in this litigation are published at 23 ELR 20746 and 23 ELR 21056.]

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

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

Counsel for Defendants
Robert J. Alessi, Elise N. Zoli
Leboeuf, Lamb, Greene & MacRae
One Commerce Plaza
99 Washington Ave., Ste. 2020, Albany NY 12210
(518) 465-1500