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UNITED STATES v. HOOKER CHEM. & PLASTICS CORP.

April 15, 1985

UNITED STATES OF AMERICA, THE STATE OF NEW YORK, Plaintiffs, and THE PROVINCE OF ONTARIO, CANADA, and THE MINISTER OF THE ENVIRONMENT OF THE PROVINCE OF ONTARIO, CANADA, Plaintiff-Intervenors,
v.
HOOKER CHEMICAL & PLASTICS CORP., HOOKER CHEMICAL CORPORATION, OCCIDENTAL PETROLEUM INVESTMENT CO., OCCIDENTAL PETROLEUM CORPORATION, and THE CITY OF NIAGARA FALLS, NEW YORK, Defendants.



The opinion of the court was delivered by: CURTIN

I.

The United States Environmental Protection Agency [EPA] commenced this action in December, 1979, against Hooker Chemicals and Plastics Corporation and related corporate entities. *fn1" Hooker then moved to have the State of New York [the State] joined as a party defendant. Later, the State was realigned as a plaintiff. The State filed its complaint in June, 1980. The City of Niagara Falls [the City] is also a defendant in this case.

 This action was commenced for the purpose of remedying the dangerous conditions existing at a chemical dump site in Niagara Falls, New York, known as the S-Area Landfill. The S-Area is one of many chemical dump sites in the City. Indeed, this case is only one of four lawsuits against Hooker filed on the same day. *fn2" Since then, other environmental lawsuits concerning the Niagara Falls area have been filed. What makes this case particularly serious is the possibility that chemicals migrating from S-Area will contaminate the City's drinking water supply. S-Area is very close to the Niagara River, which is the source of the City's drinking water. The Niagara Falls Drinking Water Treatment Plant is just to the east of the landfill.

 A settlement agreement and a proposed judgment approving the settlement have been filed with the court. At this time, the court must decide whether this agreement ought to be approved.

 II.

 The Landfill Site and the Water Treatment Plant

 The S-Area Landfill site is a seven-acre section of land situated upon the premises of Hooker's chemical manufacturing plant on Buffalo Avenue in Niagara Falls, New York. The landfill is bounded on the north by Adams Avenue and on the west by property owned by Niagara Mohawk Power Corporation. The southern boundary consists of a power line easement and the Robert Moses Parkway. The Niagara River is just south of the parkway and is only 400 feet from the landfill's southern boundary. In fact, the S-Area is situated upon land which was reclaimed from the Niagara River in the late 1930s and early 1940s. The factor that distinguishes this lawsuit from the others filed against Hooker is the proximity of the Niagara Falls Drinking Water Treatment Plant to the landfill site. Only 53rd Street, S-Area's eastern boundary, separates the plant from the landfill.

 Hooker used the landfill between 1947 and 1961 as a repository for chemical wastes and thereafter as a site for washing equipment. The S-Area was closed in 1975. Hooker estimates that 63,000 tons of chemical wastes, primarily chlorinated hydrocarbons used to manufacture plastics, pesticides, and chemical intermediates, were dumped at S-Area during this period. About 40 percent of the chemical wastes are non-aqueous phase liquids [NAPL]. NAPL are liquids which are very dense and essentially incapable of mixing with water. There are 15 compounds which make up about 99 percent of all NAPL. The potential for NAPL migration is a major area of concern in the settlement agreement.

 Geologically, the area of the landfill consists of "overburden" and "bedrock." The overburden consists of three layers of materials which differ greatly in thickness and permeability. At the top of the overburden is a porous mixture of wood, cinders, rocks, and gravel, mostly manmade. Underlying this is a layer of sand and silts approximately 16 feet thick. Below this is a layer of clay till. This bottom layer of the overburden is of low permeability, but it varies greatly in thickness. It is thicker in the northern portion of the landfill and thinner towards the south in the direction of the Niagara River. It also has areas of "discontinuity." Discontinuities are cracks and holes through which chemicals deposited in the site can flow into the bedrock below. The direction of groundwater flow in the overburden is to the south, towards the river.

 The first layer of bedrock is called the Lockport Dolomite and is about 125 feet thick. The upper 10 - 15 feet of the Lockport Dolomite contains many fractures and is therefore highly permeable. See, e.g., Government Exhibit [GX] #13. There are fewer fractures, and the bedrock is less permeable, in the lower regions of the Lockport Dolomite. Below the Lockport Dolomite is a rock formation called the Rochester Shale. The Rochester Shale is about 60 feet thick in the area of the landfill and has a very low permeability.

 The slope of the bedrock is southward at a rate of about 30 feet per mile. However, the water within the bedrock flows north, away from the river, and slightly to the west. The direction of the water flow, opposite that of the bedrock slope, is explained by the slope of the planes within the bedrock through which the water flows.

 The Niagara Falls Drinking Water Treatment Plant is located across 53rd Street, just east of the S-Area. Its facilities include intake shafts and tunnels in and near the Niagara River, plus the treatment facilities located to the east of the landfill. The system provides water for about 70,000 persons.

 There are actually three intake and tunnel systems now in place. One consists of a vertical intake in the East Branch channel of the Niagara River. This intake is connected to a 48-inch steel pipe laid in the overburden beneath the river. The overburden pipe is laid in a north-south direction and is connected to the forebay of a raw water pump station located just north of the Robert Moses Parkway. The distance from the East Branch intake to the pump station forebay is about 1800 feet. The East Branch overburden system was used until 1937. GX 57, App. 1.

 A second intake system was built in 1937. It consists of a vertical intake structure in the East Branch connected to a tunnel laid 30 feet into the bedrock beneath the river. The tunnel is shaped like an inverted horseshoe and is 5 feet wide and 5 1/2 feet high. The tunnel is connected to a vertical shoreshaft located just north of the Robert Moses Parkway and adjacent to 53rd Street. The raw water pump station is a short distance to the north of the shoreshaft. The shoreshaft is connected to the pump station forebay by a raw water pipe laid in the overburden.

 In 1953, the bedrock tunnel was extended approximately 3,500 feet south through the bedrock underlying the river. The combined length of the 1937 and 1953 bedrock tunnels is about 5,250 feet. The extended tunnel is connected to another vertical intake shaft in the river's "Emerald Channel." See, GX 57, App. 1. The East Branch intake which had been built in 1937 was sealed off in 1953 due to bacteriological contamination. The City's water supply was thereafter drawn from the Emerald Channel intake. Use of the Emerald Channel bedrock system was discontinued in April 1983.

 In August 1978, a chemical substance was discovered in the shoreshaft adjacent to 53rd Street and also in the forebay of the raw water pump station. This discovery prompted the City to resume use of the overburden intake and pipe system in 1979. (The shoreshaft is not part of the overburden system.) The overburden system supplied the City with about 80 percent of its water, with the bedrock system supplying the other 20 percent. However, in April 1983, the city sealed off the Emerald Channel intake and shut down the bedrock system altogether. The overburden system has supplied the City of Niagara Falls with all of its water since then.

 The treatment facilities located on the property to the east of S-Area include the raw water pump station mentioned previously, two treatment plants (Plant A, built in the 1950's, and Plant B, built in 1911), and a filtered water reservoir. GX 49, App. 2. After the water travels from the East Branch intake and through the overburden pipe, it arrives at the pump station forebay, where large debris such as sticks and tree limbs are removed. Smaller debris are removed by rotating screens, and then the water is pumpted to a high elevation from which it flows by gravity to Plant A. Chemicals, such as chlorine, are added to the raw water at pre-treatment channels in Plant A. From there the water flows by gravity to points in either Plant A or Plant B for more refined filtration. When the filtration process is completed, the water is stored in storage compartments in Plants A and B.

 The filtered water flows by gravity from the storage compartments to a structure called the filtered water reservoir. The reservoir is a 15-foot deep reinforced concrete structure with a storage capacity of four million gallons. From the reservoir the water is directed to a pump station which distributes the water to the people of Niagara Falls. The capacity of the water intake and distribution system is 64 million gallons per day, but the City's average daily requirement is about 35 million gallons.

 III.

 Procedural History of the Case

 The EPA commenced this lawsuit in December 1979 pursuant to section 1431 of the Safe Drinking Water Act, 42 U.S.C. § 300i, section 7003 of the Resource Conservation and Recovery Act, 42 U.S.C. § 6973; section 504 of the Clean Water Act, 33 U.S.C. § 1364; section 13 of the Rivers and Habors Act, 33 U.S.C. § 407. The EPA's complaint also contains a public nuisance claim. *fn3"

 On December 10, 1982, the EPA filed a motion for leave to file a second amended complaint adding claims under §§ 104, 106, and 107 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §§ 9604, 9606, and 9607. The prospects for settling this case improved shortly thereafter. The settlement of this case has mooted this action.

 The State of New York was joined as a defendant upon a motion by Hooker granted by the court in June 1980. The State was realigned as a plaintiff and filed its own complaint later in 1980.

 Four environmental organizations and the Province of Ontario filed motions to intervene in this lawsuit in 1982 and 1983. Niagara Environmental Action [NEA] is a small group of persons who live in or near Niagara Falls, New York. The Pollution Probe Foundation is a private Canadian organization headquartered in Toronto, Ontario, Canada. Operation Clean Niagara [OCN] is a group of Canadian citizens who live near the Niagara River. The Ecumenical Task Force [ETF] is a group whose members reside in Western New York State.

 Pollution Probe, OCN, and ETF filed a joint motion to intervene in March of 1983. The motion of NEA had been filed in 1982. The Province of Ontario's motion was filed in June 1983. The court granted the Province's motion in an order filed on February 10, 1984. United States v. Hooker Chemicals and Plastics Corp., 101 F.R.D. 444 (W.D.N.Y. 1984). The motions of NEA, OCN, ETF, and Pollution Probe were denied in an order filed on March 12, 1984. United States v. Hooker Chemicals and Plastics Corp., 101 F.R.D. 451 (W.D.N.Y.), aff'd, 749 F.2d 968 (2d Cir. 1984).

 The road to settling this case was long, difficult, and uncertain. The first steps were not taken until a settlement agreement was reached in the Hyde Park case (see n.2, supra), because the parties agreed that that case should be dealt with before this one was discussed.

 The parties to the agreement and their representatives met more than 100 times in a period of less than 3 years. My records indicate 17 meetings between the court and counsel in 1983. On more than one occasion, the Honorable Michael C. L'Laughlin, Mayor of the City of Niagara Falls, was in attendance. Members of the Niagara Falls City Council also met with the court on various occasions. Many of these meetings were convened upon very short notice to those whose participation was necessary.

 This cooperative effort produced an agreement among counsel in early December 1983. Approval by the parties followed swiftly thereafter. The Settlement Agreement was formally lodged with the court on January 10, 1984.

 In accordance with the federal government's policy of notifying nonparties about proposed consent judgments in cases of this sort, *fn4" notice of the agreement was published in the Federal Register on January 19, 1984. Interested persons not parties to the case were given the opportunity to file written comments upon the settlement and proposed judgment. The comment period is normally 30 days, but this period was twice extended upon the request of the attorneys for the applicants whose intervention motions I denied in March 1984. However, these groups did not file any comments. Only the government of Canada filed comments upon the proposed judgment. The EPA responded to these in May 1984.

 On February 1, 1984, the court announced that a hearing would be held on the question of whether the proposed judgment should be approved. The court issued its final scheduling order on March 22, 1984. In my order denying the motions to intervene in this case, I encouraged the applicants to participate in the hearings as amicus curiae. See, 101 F.R.D. at 459. They declined to do so. See, 749 F.2d at 992-93.

 The hearings extended over four days. The EPA, New York State, the Province of Ontario, and Hooker each called experts to testify about various aspects of the landfill site, the water treatment plant, and the proposed remedy. The EPA, New York State, the City of Niagara Falls, and Hooker urged the court to approve the agreement and proposed judgment without modification. Ontario's position is that the agreement should be approved only if modifications are made which would address certain areas of concern.

 These proceedings concluded with closing arguments on May 31, 1984. The appeal from my order denying intervention to the four environmental groups was decided on November 15, 1984, 749 F.2d 968, thus fully clearing the way for this court's decision on the matter now pending.

 The result of these proceedings is a fully developed record. After a review of the testimony, hearing exhibits, and the arguments of counsel, I conclude that the settlement and proposed judgment adequately address the present and future problems at the landfill and water treatment plant. Accordingly, the settlement agreement shall be approved without modification.

 IV.

 Standard of Review

 The scope of the court's review of the proposed judgment is not unlimited. The court's function "is not to substitute its own 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." United States v. Hooker Chemicals and Plastics Corp., 540 F. Supp. 1067, 1072 (W.D.N.Y. 1982) (Hyde Park Landfill).

 Among the factors to be considered by the reviewing court are the strength of the plaintiffs' case, the good faith efforts of the negotiators, the opinions of counsel, and the possible risks involved in litigation if the settlement is not approved. In a case of this sort, where significant public interests are at stake, the court must also "determine whether the decree adequately protects the public interest and is in accord with the dictates of Congress." Id. at 1072-73, quoting United States v. Ketchikan Pulp Co., 430 F. Supp. 83, 86 (D. Alaska 1977). See also, United States v. Seymour Recycling Corp., 554 F. Supp. 1334, 1337 (S.D. Ind. 1982). Accordingly, the court's function is to determine whether the proposed judgment adequately and fairly addresses the problems which Congress meant to correct when it enacted the statutes upon which this lawsuit is based.

 V.

 The Settlement Agreement

 A. General Provisions

 The Settlement Agreement consists of a "Stipulation and Judgment Approving Settlement Agreement" plus five addenda, four of which outline the technical aspects of the Agreement. The objective of the Agreement is to establish and execute remedial programs in order

 to protect against endangerment to human health and the environment in the S-Area/Treatment Plant Area and to protect the users of the City's drinking water from endangerment, utilizing Requisite Remedial Technology.

 Agreement, P4(a), p. 6.

 As was true in the Hyde Park case, the concept of Requisite Remedial Technology [RRT] is a crucial component of this settlement. See, 540 F. Supp. at 1077. Remedial Technology is defined as

 engineering and construction practices used or accepted for use in landfill containment projects or other industrial projects which are applicable to the materials and hydrogeologic conditions found at the S-Area/Treatment Plant Area.

 Agreement, P4(a), p. 6. For determining whether a remedial technology is "requisite," the parties must consider the existing health and environmental endangerments, the likely effectiveness of applying a given technology, and ...


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