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UNITED STATES v. HOOKER CHEMS. & PLASTICS CORP.

April 30, 1982

UNITED STATES of America and the State of New York, Plaintiffs,
v.
HOOKER CHEMICALS AND PLASTICS CORPORATION, Hooker Chemical Corporation, Occidental Petroleum Investment Corporation, and Occidental Petroleum Corporation (Hyde Park Landfill), Defendants



The opinion of the court was delivered by: CURTIN

I. Introduction

This is an environmental lawsuit filed by the United States Environmental Protection Agency in December 1979 against the defendant, Hooker Chemical and Plastics Corporation (Hooker). *fn1" A settlement agreement and a proposed judgment approving the settlement was lodged with the Clerk of the Court on January 19, 1981. At this time, the court must decide whether the agreement should be approved.

 II. The Landfill Site

 The Hyde Park Landfill occupies approximately 15 acres in the northwest corner of the Town of Niagara, New York. It is surrounded primarily by industrial property, including the Niagara Steel Company to the west and the Tam Ceramic Company directly south. It is bounded on the north side by Greif Brothers, Inc., and beyond that are residential homes. On the east side, the Landfill Site is surrounded by undeveloped land in the form of a right-of-way owned by the Niagara Mohawk Power Corporation.

 The Hyde Park Landfill Site (the Site) is located between the Niagara River and conduits constructed by the Power Authority of the State of New York (PASNY). It is 3,500 feet east of the Niagara River and 3,500 feet west of the conduits. Approximately 7/10 of a mile to the north of the Site is a power canal also constructed by PASNY. The PASNY conduits connect the power canal to the Niagara River at intakes which are located approximately 31/2 miles from the Landfill Site. The Niagara River flows from Lake Erie to Lake Ontario in a northwesterly direction. To further locate the Site, it is approximately 3 miles from Goat Island and the Horseshoe and American Falls. (See Appendix A.)

 Bloody Run Creek flows past the northwest corner of the Site. It flows above-ground until it reaches a road called New Road, then into a culvert beneath the road. It emerges above ground for a short distance, then flows into another culvert below the Greif Brothers Barrel Plant. Next, the Creek emerges and flows into an area near the Niagara University Campus, where it drops into an underground storm drain 20 to 30 feet below ground level. Finally, Bloody Run Creek flows west through the Niagara Gorge into the Niagara River.

 Geologically, the area beneath the Site consists of several strata of soil and rock. Immediately beneath the Site, to a depth of approximately 30 feet, is a layer of glacial till soil, primarily clay, silt, and sand. Below this is a layer of rock approximately 90 to 130 feet thick, known as the Lockport Dolomite Zone. This zone consists of layers of dolomite, with limestone and shale at the bottom of the zone. Underlying this stratum is the Rochester Shale Zone, approximately 60 feet of hard shale. This is underlaid by various strata of sandstone, limestone, and shale, and finally, by an extraordinarily hard rock layer, known as the Queenston Shale Zone. (See Appendix B.)

 For more than two decades, this 15-acre area was used as a disposal site by the defendant for waste materials and by-products from its chemical manufacturing plant in Niagara Falls. Hooker produces agricultural chemicals, fertilizers, plastics, and various industrial chemicals. While the exact contents of the Landfill are unknown at this time, an estimated 80,000 tons of chemical wastes are deposited there. This figure includes 3,300 tons of Trichlorophenol still bottoms which contain dioxin (TCDD), one of the most potent toxins.

 The existence of the chemical dump site began to arouse great public concern in the early 1970s. In 1971, the Niagara County Health Department requested that Hooker cease further waste disposal at the Site and seal it off. Hooker's use continued until 1975, when the Site was closed.

 In 1978, Hooker hired the engineering firm of Conestoga-Rovers & Associates of Waterloo, Ontario, Canada, to examine the Site in order to determine what, if any, remedial work should be undertaken to clean up the chemicals disposed of within the Site and to prevent the spreading (migration) of contamination. At defendant's request, the firm placed 10 observation wells which were monitored and analyzed to identify the flow of water and chemicals in the area. Next, Hooker, acting upon the experts' advice, constructed a concrete cap and a security fence. Also, in 1978-1979, Hooker installed a tile drain system around the Landfill Site. This system, which is currently in use, collects approximately 4,000 gallons of water each day from the overburden-the topsoil-around the Site. Finally, Hooker reconstructed the storage container (or lagoon) which had been placed in the southwest corner of the Site in 1974 and constructed an impermeable lagoon to hold the materials collected by the tile drain system until they could be treated. These lagoons were then covered with plastic caps. At each phase of this program, Hooker was in contact with the New York State Department of Environmental Conservation (DEC) and received approval from it regarding the protocols used for investigation, the studies made, and the remedial work undertaken.

 III. Procedural History of the Case

 These measures were deemed insufficient by plaintiff Environmental Protection Agency (EPA). Recognizing that it was powerless to force the defendant to go beyond these voluntary measures unless the defendant was adjudged to be in violation of the law, the plaintiffs commenced four environmental lawsuits in December 1979. In this action, plaintiffs sought injunctive relief and monetary damages pursuant to section 7003 of the Resource Conservation and Recovery Act, 42 U.S.C. § 6973; and sections 309 and 504 of the Clean Water Act, 33 U.S.C. §§ 1319, 1364; section 13 of the River & Harbors Act, 33 U.S.C. § 407; and general nuisance law.

 After the defendant filed an answer, the State of New York and the Towns of Lewiston and Niagara were joined as involuntary defendants. Upon application to the court, the State became a party plaintiff.

 Discovery and pretrial procedures followed in the usual course until January 1981, when the parties notified the court that they had agreed upon a settlement. As noted above, the settlement agreement was filed with the court on January 19, 1981. After an initial examination of this document, the court ordered the parties to appear in order to explain the various provisions of the proposed settlement and to answer any questions. This presentation took place on February 10.

 Recognizing that the resolution of these issues by agreement could have tremendous impact upon the residents of the community and, indeed, upon all of the surrounding areas, the parties conducted a public hearing at Niagara University on February 19. The transcript of that hearing has been filed with the court. Additionally, to gauge the public concerns as accurately as possible and to get the maximum input from the community, the United States agreed to respond to all comments received relative to the notice of settlement, which was published in the Federal Register from February 5 to March 20, 1981. All comments and the responses of the United States have been filed with the court and made a part of the record.

 The procedural aspects of this case became further complicated when the court received a petition from the Ecumenical Task Force (ETF) by its attorney, Ms. Barbara Morrison. The ETF sought leave to intervene as amicus curiae. The court granted this motion and a similar motion submitted jointly by organizations known as Pollution Probe and Operation Clean-Niagara, represented by Canadian barrister Toby Vigod. In addition, the court received motions from the Niagara Falls Citizens Alliance and the College Heights Property Owners Association through their attorney, Lewis Steele, and from a property owner in the Hyde Park vicinity, Mr. Norman Martelli. These applicants seek leave to intervene in this action as parties. The court has reserved decision on these motions until this time.

 The briefs and memoranda filed by the parties, by amici, and by the applicants for intervention subsequent to the oral presentation of February 10 were most helpful and informative. They served to convince the court, however, that many questions remained unanswered and many concerns had not been addressed during the prior hearing. Accordingly, the court issued an order listing some questions to be answered by the parties in an attempt to clarify the highly technical and complex settlement. It was further directed that another hearing be held during which the proponents of the consent decree were to respond to the issues raised by the court and by amici. Amici were given leave to participate and present witnesses. The applicants for intervention were given leave to participate as amici. See my order of August 7, 1981.

 The hearings extended over eight days and produced a transcript of 2,000 pages. The terms of the settlement agreement, the objections of amici, and alternative solutions to this environmental crisis all were explored in detail. Testimony was taken from 15 expert witnesses. These witnesses included top specialists from a variety of scientific fields, including chemists, geologists, and engineers. All parties, including amici and the applicants for intervention, fully examined and cross-examined the witnesses.

 The result of this effort is a complete, fully developed record. Upon careful examination of this record and the 186 exhibits filed, as well as the briefs and memoranda of law, I am convinced that the proposed consent decree is the best possible solution to the problem under all the circumstances, and it shall be approved.

 IV. The Standard of Review

 In reviewing this document, we must keep in mind the applicable standard of review. The proponents and amici are in agreement that when the parties to a lawsuit have arrived at a settlement, the court has only limited powers of review.

 As has been stated by a number of courts, there is

 
(a) clear policy in favor of encouraging settlements ... particularly in an area where voluntary compliance by the parties over an extended period will contribute significantly toward ultimate achievement of statutory goals.

 Patterson v. Newspaper & Mail Deliverers Union of New York, 514 F.2d 767, 771 (2d Cir. 1975), cert. denied, 427 U.S. 911, 96 S. Ct. 3198, 49 L. Ed. 2d 1203 (1976); Airline Stewards Local 550 v. American Airlines, 573 F.2d 960 (7th Cir. 1978), cert. denied, 439 U.S. 876, 99 S. Ct. 214, 58 L. Ed. 2d 190 (1978); Newman v. Stein, 464 F.2d 689 (2d Cir.), cert. denied, 409 U.S. 1039, 93 S. Ct. 521, 34 L. Ed. 2d 488 (1972); Wellman v. Dickinson, 497 F. Supp. 824 (S.D.N.Y.1980), aff'd, 647 F.2d 163 (2d Cir. 1981).

 It is well settled that the function of the reviewing court is not to substitute its judgment for that of the parties to the decree but to assure itself that the terms of the decree are fair and adequate and are not unlawful, unreasonable, or against public policy. See United States v. City of Jackson, 519 F.2d 1147, 1151 (5th Cir. 1975); West Virginia v. Chas. Pfizer & Company, 440 F.2d 1079, 1085 (2d Cir.), cert. denied, 404 U.S. 871, 92 S. Ct. 81, 30 L. Ed. 2d 115 (1971); Williamsburg Fair Housing v. New York City Housing, 450 F. Supp. 602, 606 (S.D.N.Y.1978).

 In the leading case of City of Detroit v. Grinnell Corp. 495 F.2d 448 (2d Cir. 1974), the United States Court of Appeals for the Second Circuit stated:

 
(t)he Court must eschew any rubber stamp approval in favor of an independent evaluation, yet, at the same time, it must stop short of the detailed and thorough investigation that it would undertake if it were actually trying the case.

 Id. at 462. Under the reasoning of Grinnell and its progeny, the reviewing court has a limited duty to inquire into the technical terms and the factual disputes underlying the proposed settlement.

 A number of courts have noted relevant factors which must be considered by the reviewing court. The most important factor is the court's determination of the strength of the plaintiffs' case. Other factors include the good faith efforts of negotiators, opinion of counsel, and the possible risks involved in litigation if the settlement is not approved. See Plummer v. Chemical Bank, 668 F.2d 654, 659-60 (2d Cir. 1982); Armstrong v. Board of School Directors, 616 F.2d 305, 314 (7th Cir. 1980); Gautreaux v. Landrieu, 523 F. Supp. 665, 669 (N.D.Ill.1981); Heit v. Amrep Corp., 82 F.R.D. 130, 133 (S.D.N.Y.1979).

 In addition to these general requirements, special policy considerations are present in this case. In the case of United States v. Ketchikan Pulp Co., 430 F. Supp. 83 (D.Alaska 1977), an environmental lawsuit brought pursuant to the Federal Water Pollution Control Act, the court reviewed the general rules regarding the standard of review for settlement decrees and noted that "the court is asked to enter a judgment which clearly will have an affect (sic) upon the public." After a discussion of the various standards of review proposed by the parties and intervenors, the court concluded that

 
the appropriate standard is that the court should determine whether the decree adequately protects the public interest and is in accord with the dictates of Congress.

 Id. at 86 (citations omitted).

 The court is in agreement with the above-quoted language. During this entire proceeding, the court's primary concern has been to ensure that the settlement protects public health and the environment to the greatest extent feasible under currently existing technology. Accordingly, the task has been to examine the proposal and determine whether it is a fair and adequate settlement and whether its implementation will reflect concern for the problems for which Congress has enacted the various environmental statutes.

 V. The Controversy

 The basic concern which underlies this lawsuit is not the presence of the chemicals in the Landfill itself but the fact that these chemicals will migrate away from the Landfill toward the Niagara River and Lake Ontario. Given the deadly toxicity of these chemicals in even minute dosages, the specter of these wastes seeping into the Niagara River is indeed frightening.

 The precise hydrogeological characteristics of the land around and beneath the Site-its ability to transmit the chemicals from the Site-are unknown. Whether migration will take place, how it will happen, the speed at which the chemicals will move, and the extent of the migration are questions of intense controversy.

 At issue is the permeability of the various strata underlying the Site. Proponents and opponents alike agree that the most permeable of the layers is the top 10 to 15 feet of the Lockport Dolomite. A 1961 United States Geological Survey Report characterized this area as "the only important aquifer" in the Hyde Park area. *fn2" The testimony during the hearing showed that groundwater entering this formation moves in three ways: through vertical cracks or vertical joints, through horizontal openings known as bedding joints, and into small cavities which vary in ...


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