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U.S. v. COUNTY OF NASSAU

February 26, 1990

UNITED STATES OF AMERICA AND STATE OF NEW YORK, PLAINTIFFS,
v.
COUNTY OF NASSAU AND NASSAU COUNTY DEPARTMENT OF PUBLIC WORKS, DEFENDANTS.



The opinion of the court was delivered by: Mishler, District Judge.

Defendants, County of Nassau and Nassau County Department of Public Works ("Nassau"), move to modify the Consent Decree and Enforcement Agreement ("Decree") "so ordered" on August 2, 1989 by deleting from Article V, Dewatering Measures For Land Based Management Of Sewage Sludge — the schedule requiring Nassau to construct and operate dewatering equipment capable of processing 100 percent of Nassau's sludge by December 31, 1991. The application does not affect Nassau's obligation to have dewatering equipment capable of processing 50 percent of its sludge by June 30, 1991. Article V, para. 7.*fn1

Nassau's request for modification of the Decree is based on its decision to use a private vendor to fulfill its obligations which, in turn, was a result of requests for proposals issued on March 1, 1989 and July 10, 1989. Article IV, "Solicitation of Proposals For Land-Based Management of Sewage Sludge." Paragraphs 4 and 5 of Article IV state in pertinent part:

  4. Any party may propose modification of the
  schedules for implementation of land-based
  management of sewage sludge as a result of the
  process set forth in paragraph IV.B.1, 2 and 3 by
  January 15, 1990. . . .
  5. If the parties agree to seek a modification of
  paragraph V, VI or VII hereof, they shall seek
  one as appropriate in accordance with paragraph
  XII no later than February 28, 1990. If there is
  no agreement, any party may petition the court
  for a modification or may seek relief from the
  milestone events set forth in paragraphs VI and
  VII in accordance with paragraphs XII and XIV, as
  appropriate.*fn2

Nassau's motion seeks relief from the time schedule imposed and to substitute a schedule in keeping with Nassau's decision to contract with a private vendor. Nassau argues that "[u]nder this alternative system, optimally the sludge would not be disposed of in a landfill, but would be put into a form where the sludge could be reused. The full operation of this system is to commence by December 31, 1994." (Nassau brief, p. 4)

History and Background Leading to the Decree

Between 1977 and 1981 the EPA and New York State gave financial assistance to Nassau and other municipalities for the purpose of developing alternatives to ocean dumping. Nassau constructed a dewatering facility at Cedar Creek in 1981. It did not become fully operational. The interpretation of the December 31, 1981 deadline for ending ocean dumping in the 1977 amendments to MPRSA in City of New York v. United States Environmental Protection Agency, 543 F. Supp. 1084, 1088 (S.D.N.Y. 1981) placed the effectiveness of that date in doubt. Nassau entered into a consent decree with the EPA permitting the continued dumping of sewage sludge into the ocean.

The Ocean Dumping Ban Act of 1988 ("Act") amended the MPRSA, inter alia, by prohibiting the dumping of sewage sludge into the ocean after August 14, 1989 unless permitted by the EPA. The House amendment required all dumpers, within six months of enactment, to enter into one of two types of agreements — a compliance agreement for those who could end ocean dumping by the deadline and an enforcement agreement for those who could not meet the deadline. 33 U.S.C. § 1401. The enforcement decree was to phase out such ocean dumping. The Act makes it unlawful to dump sewage sludge in the ocean after December 31, 1991.

The Decree outlines a plan in which Nassau will cease ocean disposal of 50 percent of its sewage sludge by June 30, 1991 and all dumping of sewage sludge by December 31, 1991 through implementation of interim measures. Article V sets a time schedule for dewatering the sludge.*fn3 Article VI sets the schedule for disposal or reuse of the dewatered sludge. The long-term plan contemplates the incorporation of the equipment and procedures developed in the interim plan.

Present Facilities

In 1981 Nassau constructed the Cedar Creek Wastewater Pollution Control Plant. Its operation was suspended as a result of the decision in City of New York v. United States Environmental Protection Agency, supra. Cedar Creek will be fully operational by June 30, 1991. Sewage treatment plants exist at Bay Park and Inwood, but they are not functioning as dewatering facilities.

The sewage sludge from Inwood, Belgrave and West Long Beach is hauled to Bay Park. The sewage sludge from Cedar Creek is piped to Bay Park. All the sewage sludge from these communities together with the sewage sludge from Bay Park is placed on barges and dumped in the ocean at a site off the continental shelf designated as "the 106 mile site."*fn4 Modification of a Consent Decree

Fed.R.Civ.P. 60(b) provides that a court may relieve a party from a final judgment, order, or proceeding when, inter alia, it is "no longer equitable that the judgment should have prospective application" or "any other reason justifying relief from the operation of the judgment." Fed.R.Civ.P. 60(b)(5) & (6). A court deciding a Rule 60(b) motion "must balance the policy in favor of hearing a litigant's claims on the merits against the policy in favor of finality." Kozlowski v. Coughlin, 871 F.2d 241, 246 (2d Cir. 1989); Kotlicky v. United States ...


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