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August 11, 1986

UNITED STATES OF AMERICA, et al., Plaintiffs,

The opinion of the court was delivered by: CURTIN

In April of 1982, this court approved a settlement agreement and proposed judgment [Settlement Agreement] dealing with the Hyde Park Landfill § the Landfill) cleanup. United States v. Hooker Chemicals & Plastics Corp., 540 F. Supp. 1067 (W.D.N.Y. 1982). *fn1" It is now called upon to decide whether the parties' proposed Requisite Remedial Technology Stipulation [RRT Stipulation) (Item 379) should be approved.

As was stated in the 1982 order, the Hyde Park Landfill was used for more than two decades as a disposal site by defendant Hooker *fn2" for waste materials and by-products from its chemical manufacturing plant in Niagara Falls. It is estimated that some 80,000 tons of chemicals are deposited there, including between 0.6 - 1.6 tons of 2, 3, 7, 8-tetrachlorobenzo-p-dioxin [TCDD), an extremely toxic organic substance. Item 352, Affidavit of Charles Faust [Faust Affidavit], [P]43. See also Item 355, Affidavit of Dr. Neil S. Shifrin [Shifrin Affidavit], [P]23. *fn3" In recent years, studies have indicated that some portion of these chemicals have migrated and continue to migrate away from the Landfill site and into adjacent properties in the general direction of the Niagara River. *fn4" This migration has taken place in one of two manners: either dissolved in groundwater in the form of aqueous phase liquid [APL] or as a heavier separate chemical phase known as non-aqueous phase liquid [NAPL]. Faust Affidavit, [P]44; Shifrin Affidavit, [P][P]12-13.

 In light of these circumstances, the Department of Justice, on behalf of the Environmental Protection Agency [EPA] filed a lawsuit against Hooker seeking cleanup of this Landfill on December 20, 1979, pursuant to, inter alia, section 7003 of the Resource Conservation and Recovery Act, 42 U.S.C. § 6973 and section 504 of the Clean Water Act, 33 U.S.C. § 1364. The court joined the State of New York [the State) as a party, pursuant to a motion by OCC, on May 11, 1980. The court granted the State's motion to realign as a plaintiff on July 8, 1980.

 On January 19, 1981, the EPA, the State, Hooker, and the Towns of Lewiston and Niagara lodged the Hyde Park Stipulation and Judgment Approving Settlement Agreement *fn5"

 To briefly summarize, the court-approved 1982 Settlement Agreement prescribed a phased approach to remediation at the Landfill which, first, required Hooker to conduct various field studies and surveys to determine the extent of chemical migration in the overburden and the Lockport Dolomite bedrock layers of the Landfill area. After accurate geological and hydrogeological data was obtained, Hooker was also required to provide a definite plan for remediation of the overburden and bedrock which would provide for the containment of the chemical waste as well as the monitoring and maintenance of this containment program. The parties agreed that compliance with this decree was to be measured in terms of a performance factor. A summary of some of the most important aspects of the Settlement Agreement can be found at 540 F. Supp. at 1074-76.

 Further, all parties agreed that both aspects of the Settlement Agreement were to be carried out under the observation and supervision of the governmental parties and the court. It was also understood that, when the proposed plan was ultimately accepted by the parties, Hooker would be required to execute it, again under the supervision of the appropriate federal and state agencies and the court.

 As was made clear in this earlier agreement, it was agreed that Requisite Remedial Technology [RRT] was to be a crucial component of an approved consent decree. 540 F. Supp. at 1077. Stated another way, the parties were directed to develop acceptable engineering and construction practices for the Landfill site in light of the nature of the endangerment to human health and the environment, the extent to which application of the remedial technology would reduce such endangerment, as well as the economic cost required to apply the possible remedial technology.

 To this end, Hooker was ordered to submit 1) a study to determine what RRT was required, and 2) a statement of alternative technologies it had examined, as well as the company's reasons for disregarding them as RRT. It was agreed--and thereafter approved by this court--that once such determinations had been made, Hooker would apply these procedures, unless it was determined by this court that the technology was unnecessary or that it would be arbitrary and capricious to mandate Hooker to implement that technology.

 This court is now requested by the parties to approve the proposed RRT Stipulation in this case. As the parties set out in their Joint Memorandum in Support of Order Approving Hyde Park Stipulation Concerning the Requisite Remedial Technology Program [Joint Memorandum§ (Item 378) from 1982 to May 1984, Hooker performed various field surveys and other data-gathering to determine the extent of chemical migration from the Landfill and thereafter submitted an RRT Study to EPA and the State. EPA and the State responded to this proposal on September 5, 1984.

 Thereafter, the parties began intensive negotiations on the appropriate remedial programs to be implemented in this case. During the course of these negotiations, EPA and the State continued to meet with and inform concerned members of the public about relevant issues through regularly scheduled public meetings. In addition, EPA and the State met specifically with certain citizen groups and arranged various meetings between these citizen groups and Hooker, and between the governments of Canada, the Province of Ontario and Hooker. See Item 364, Affidavit of Ann Goldweber; Item 363, Affidavits of Matthew J. Forcucci and William J. Walsh. During these same period, EPA and the State informed the public of the status of negotiations and responded to public comments. Id.

 The parties' negotiations proceeded under the supervision of the court through frequent status conferences. By order of this court, the period of negotiations was extended from January 4, 1985, to November 26, 1985, when a proposed Agreement and a proposed RRT Stipulation were lodged with this court (Item 350). In December, 1985, EPA filed its extensive Memorandum in Support, including affidavits and other documents explaining and supporting the remedial choices made in the RRT Stipulation. In summary, the RRT Stipulation requires Hooker to:

 Implement a source control program, i.e., install wells to remove NAPL from the historic landfill for destruction by incineration (section 2.0 of the RRT Stipulation);

 Implement remedial measures to contain and collect APL and NAPL in the overburden, particularly by installation of a tile drain system (section 3.0 of the RRT Stipulation);

 Implement a prototype bedrock NAPL Containment System. This system is to involve operation of purge and recirculation wells designed to contain further lateral migration of the NAPL plume (and any APL within this region) and to withdraw NAPL (section 4.0 of the RRT Stipulation);

 Install purge wells at the Niagara Gorge Face to collect a substantial portion of the bedrock APL plume (outside the NAPL plume) (APL Plume Containment System, section 4.0). The parties agree that additional remedial action is to be required if the residual loading (pounds per day) of certain chemicals to the Niagara River exceed action levels specified in the RRT Stipulation (section 4.3, "APL Plume Flux Action Levels.") This program also includes a TCDD bioaccumulation study (section of the RRT Stipulation).

 Perform additional surveys in the bedrock below the Lockport Dolomite in order to determine what additional loadings, if any, of chemicals attributable to Hyde Park may be entering the Niagara River and require additional remedial action, inter alia, if the sum of all chemicals from Hyde Park exceed the APL Plume Flux Action Levels (sections 5.0 and 6.0 of RRT Stipulation);

 Perform a series of remedial activities along the Niagara Gorge Face to protect human health and the environment ...

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