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November 28, 1984

UNITED STATES OF AMERICA, et al., Plaintiffs,

The opinion of the court was delivered by: CURTIN

Plaintiff United States and defendant Occidental have filed a joint motion seeking an order from this court prohibiting the disclosure of proposals made during the negotiations directed at settling a dispute concerning the Requisite Remedial Technology [RRT] to be implemented at the Hyde Park Landfill. The motion is opposed principally by plaintiff New York State and also by plaintiff-intervenors College Heights Property Owners Association and Norman Martelli.

Counsel for all of the parties mentioned above appeared in open court to present their views on this important matter. As will be explained below, the order sought by the United States and Occidental is actually a rather narrow prohibition on disclosure. All raw data and facts relating to proposed remedies are and will continue to be available for public scrutiny. However, the court declines at this time to issue the confidentiality order sought here.

 Today's order should not be viewed as an acceptance of the legal arguments urged by those opposing this motion. Indeed, the court rejects the contention that the Settlement Agreement expressly requires the disclosure of the communications which the United States and Occidental seek to keep secret here.

 Nor should today's order be viewed as an endorsement of New York's position that all communications made during settlement negotiations should be made public. The United States and Occidental, quite understandably, have questioned the wisdom and utility of this policy. The court's decision is based upon its view that this and other like cases will be before it for many years. The steps taken now should be short ones, from which changes in direction can be made if the practicalities of this lawsuit indicate that new directions are necessary. It is in this spirit and with this small step that the court has decided to decline to move in the direction of court-ordered secrecy.

 This environmental lawsuit was commenced in December of 1979. The case was settled in 1981 as a result of the concerted efforts and cooperative attitudes of the parties to the efforts and cooperative attitudes of the parties to the Settlement Agreement. The court approved the settlement in 1982 after an extensive hearing... See United States v. Hooker Chemicals and Plastics Corp., 540 F. Supp. 1067 (W.D.N.Y. 1982).

 The written agreement is an extensive and detailed document which calls for the implementation of a long-term remedial program for cleaning up and containing the many tons of dangerous chemicals that have been deposited into the Hyde Park Landfill. Part of the process involves a study by Occidental of the vertical and areal extent of chemical contamination. Settlement Agreement [SA], Addendum I, PC. Occidental has undertaken that study.

 The data collected by Occidental indicated that there has been significant chemical migration from the landfill site. Accordingly, Occidental initiated a study to determine what RRT is necessary to address the migration problem.

 Occidental submitted its RRT proposal to the Environmental Protection Agency [EPA] and New York State on May 8, 1984. It has not attempted to keep this submission confidential. This submission was made pursuant to Addendum I, PC(8) of the Settlement Agreement. Since the RRT study was a document "submitted by [Occidental] to EPA/State pursuant to this Judgment," it was and is subject to public inspection. SA p.30, P20. The data underlying the study is also open to public scrutiny.

 The Settlement Agreement required the federal and State governments to respond to Occidental's RRT study within 120 days after its subission if they believed that the study was in any way "inconsistent with any term or condition" of the Settlement Agreement. SA Addendum I, PC(9). Without written objections from the governments, the Occidental study would have been deemed consistent with the terms of the settlement.

 However, the federal and State governments gave Occidental written notice of their objections to the RRT study on September 5, 1984. The Agreement requires that the governments' objections give specific reasons therefor, and "a detailed description of what further actions" are thought to be required. SA Addendum I, PC(9)(b)(i), (ii).

 Implicitly, the next step to take under the Agreement is negotiation among Occidental, EPA, and New York State concerning a possible accord on what RRT will be implemented at the landfill site. This implication stems from the Agreement's provision that:

 If, within 120 days, or longer if so stipulated, [Occidental] does not notify EPA/State in writing of its agreement to implement the further action described in EPA/State's written notice, either party may petition the Court, within 30 days after the expiration of the period for [Occidental] to notify EPA/State, seeking implementation of further action as contained in EPA/State's written advice.

 SA Addendum I, PC(9)(d). See also PC(9)(c), concerning the binding effect of an agreement on RRT programs.

 With respect to the present RRT matter, the time for negotiations expires in early January, 1985. Within 30 days of the expiration of this period, "either party may petition the Court . . . seeking implementation of ...

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