adversely affect human health, welfare or amenities, or the
marine environment, ecological systems, or economic
potentialities." 33 U.S.C. § 1401. In 1974 and 1975, the United
States Environmental Protection Agency ("EPA") required ocean
dumpers to apply for permits. In 1976, only nine major
municipalities including Nassau continued ocean dumping on EPA
permits which provided a schedule with a view to end ocean
dumping by December 31, 1981. Congress reinforced the goal to
end ocean dumping by amending the MPRSA in 1977 by requiring an
end to ocean dumping of sewage sludge by December 31, 1981,
P.L. 95-153 and by requiring an end to ocean dumping of
industrial waste by December 31, 1981, P.L. 96-572.
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.
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
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
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 Fidelity &
Guaranty Company, 817 F.2d 6, 9 (2d Cir. 1987) (citing 11 C.
Wright & A. Miller, Federal Practice and Procedure, §
The oft-quoted Swift standard for modifying a consent decree
provides that "[t]he inquiry for us is whether the changes are
so important that dangers, once substantial, have become
attenuated to a shadow. . . . Nothing less than a clear showing
of grievous wrong evoked by new and unforeseen conditions
should lead us to change what was decreed after years of
litigation with the consent of all concerned." United States v.
Swift & Co., 286 U.S. 106, 119, 52 S.Ct. 460, 464, 76 L.Ed. 999
(1932). See also United States v. American Society of
Composers, 586 F. Supp. 727, 728-29 (S.D.N.Y. 1984); Air
Transport Association of America v. Professional Air Traffic
Controllers Organization, 516 F. Supp. 1108, 111 (E.D.N Y
1981.), aff'd, 667 F.2d 316 (2d Cir. 1981). As explained in
United States v. United Shoe Manufacturing Corp., 391 U.S. 244,
88 S.Ct. 1496, 20 L.Ed.2d 562 (1968), a decree may be changed
by an appropriate showing, but may not be changed in the
"interests of the defendants if the purposes of the litigation
as incorporated in the decree . . . have not been fully
achieved." Id. at 248, 88 S.Ct. at 1499.
In determining whether modification is appropriate, the
analysis must begin by identifying the "essential purpose or
purposes of the decree in question, and weighing the impact of
the proposed modification on that ultimate objective."
Kozlowski, supra, at 247. The party seeking modification bears
the burden of clearly showing that modification "`is essential
to attaining the goal of the decree.'" Id. at 247 (quoting New
York State Association for Retarded Children v. Carey,
706 F.2d 956, 969 (2d Cir. 1983) (Friendly, J.)). Once done, the movant
must then show that "each change prunes the decree deftly,
changing only as much as is required and leaving the ability to
obtain the ultimate goal intact." Id. at 248.
Determining the goal of the decree turns on its
construction. Although enforced as judicial acts, consent
decrees are construed as contracts. United States v. ITT
Continental Baking Co., 420 U.S. 223, 236-37, 95 S.Ct. 926,
934, 43 L.Ed.2d 148 (1975); Canterbury Belts Ltd. v. Lane
Walker Rudkin, Limited, 869 F.2d 34, 38 (2d Cir. 1989). Thus,
the meaning and purpose of a consent decree should be discerned
from the "four corners" of the decree. United States v. Armour
& Co., 402 U.S. 673, 681-82, 91 S.Ct. 1752, 1757, 29 L.Ed.2d
256 (1971); Canterbury Belts, supra, at 38. The explicit
language of the decree is given its plain meaning and is
afforded great weight. Berger v. Heckler, 771 F.2d 1556, 1568
(2d Cir. 1985). See also United States v. Atlantic Refining
Co., 360 U.S. 19, 22-23, 79 S.Ct. 944, 946, 3 L.Ed.2d 1054
(1959); Vertex Distributing, Inc. v. Falcon Foam Plastics,
Inc., 689 F.2d 885, 892-93 (9th Cir. 1982); Artvale, Inc. v.
Rugby Fabrics Corp., 303 F.2d 283, 284 (2d Cir. 1962). If terms
in the decree are ambiguous, the court may consider evidence
surrounding its negotiation. ITT Continental Baking Co., supra,
at 238 n. 11, 95 S.Ct. at 935 n. 11; Canterbury, supra, at 38.
Additional considerations inform the construction of a
consent decree adopted to enforce a statute. Just as a court
must consider whether the decree adequately protects the
public interest in approving the consent decree, it must also
consider the public interest in modifying that decree.
United States v. Wheeling Pittsburgh Steel Corporation,
866 F.2d 57, 59-60 (3rd Cir. 1988) (modification of decree entered
under the Clean Air Act, as amended, 42 U.S.C. § 7502(a)(1)
(1983); Citizens for a Better Environment v. Gorsuch,
718 F.2d 1117, 1126 (D.C. Cir. 1983) (approval of settlement agreement
pursuant to Federal Water Pollution Control Act Amendments of
1972, §§ 101 et seq.);
State of New York v. Town of Oyster Bay, 696 F. Supp. 841, 843
(E.D.N.Y. 1988) (approval of consent decree pursuant to the
Comprehensive Environmental Response, Compensation & Liability
Act (CERCLA), 42 U.S.C. § 9601 et seq.); United States v.
Seymour Recycling Corp., 554 F. Supp. 1334, 1337 (S.D.Ind. 1982)
(approval of consent decree pursuant to the Resource
Conservation and Recovery Act, 42 U.S.C. § 6901 et seq., the
Clean Water Act, 33 U.S.C. § 1251 et seq., and CERCLA). Thus,
in construing the decree, the congressional policy decision
embodied in the statute it was adopted to enforce is given
great weight. Wheeling-Pittsburgh, supra, at 60. See System
Federation No. 91 v. Wright, 364 U.S. 642, 651, 81 S.Ct. 368,
373, 5 L.Ed.2d 349 (1961) ("[J]ust as the adopting court is
free to reject agreed upon terms as not in furtherance of
statutory objectives, so must it be free to modify the terms of
a consent decree when a change in law brings those terms in
conflict with statutory objectives."). In addition, the
language of the statute and the legislative history
accompanying may limit the court's equitable discretion to
modify the decree in contravention of the statute.
In support of its request to modify the schedule for
construction and operation of the dewatering plant, Nassau
argues that its primary intention is "to find an alternative
solution to constructing dewatering facilities at either its
Bay Park or Inwood Sewage Treatment Plant sites because proper
time has not been allowed to evaluate long-term facilities at
any of the County facilities or long-term proposals from
private vendors." (Fangmann Aff., ¶ 3). Nassau also states that
its intent in seeking modification is "to produce a reusable
product at the earliest possible date to avoid the limited
short term aspect of landfilling of dewatered sludge."
(Fangmann Aff., ¶ 4). However, the county recognizes that "even
the private vendors must utilize dewatering and landfilling on
an interim basis," but argues that the private vendors are
better able than the county to contract with available
landfills and pursue other options. (Fangmann Aff., ¶ 30).
In addition, Nassau argues that the schedule set forth in
Article V of the decree is too "tight" and does not allow
enough time for "a thorough planning effort or public
involvement program to consider the construction of a
dewatering facility." (Fangmann Aff., ¶ 6). Finally, the county
argues that there are substantial adverse environmental impacts
from constructing dewatering facilities at either Inwood or Bay
Park. (Fangmann Aff., ¶¶ 38-41). In particular, the increased
truck traffic through the "narrow residential streets" of Bay
Park "leaves the Bay Park site as unacceptable." (Fangmann
Aff., ¶ 39). Construction of the dewatering plant at Inwood is
unacceptable because of the "limitation on available property"
at the site, due in part to the sewage plant's proximity to
tidal wetlands. (Fangmann Aff., ¶ 40).
The county also argues that the decree contemplates "a
two-stage plan that the County must follow to cease the ocean
dumping of sewage sludge." (Def. Brief, p. 3). The first stage
of the plan is the interim requirements: 50 percent of the
county's sludge must be disposed of in a land-based management
by June 30, 1991, and 100 percent of the county's sludge must
be disposed of by December 31, 1991.*fn5 According to the
county, this first stage also has two tracks. (Nassau brief,
p. 4). The first track requires Nassau to submit requests for
proposals (RFPs) from the private sector for land-based
management. The purpose of these requests is to locate a
private vendor that can meet the county's obligations. As
Nassau notes, the decree itself specifies that the parties are
to meet and discuss the proposals. Article IV, para. A. In
addition, if the proposals are "sufficiently promising," then
either party may request modification of the schedule for
implementing the land-based sludge management. Article IV,
para. B, sec. 4.
The second track of this first stage requires the county to
build and implement the land-based sludge management. Articles
V and VI. The purpose of these two tracks, according to
Nassau, is to provide it with flexibility. They contend that
the modification clause in the decree must have been intended
to allow the county the option of pursuing either the private
vendor or county track, depending on which was found to be
This two track construction of the decree is incorrect. By
the plain meaning of its terms, Nassau "shall implement
dewatering measures for land-based management of sewage sludge
in compliance with the following milestone events: . . .
[c]ommence on-site construction of all sludge dewatering
facilities by June 30, 1990." Article V, para. 6. Nassau was
to solicit proposals for "land-based sludge management
options," Article IV, and to select a "land-based
alternative," Article IV, para. B, sec. 2, that is, proposals
for the disposal of the dewatered sludge.
The November 1989 Nassau County's Draft Generic Environmental
Impact Statement Interim Report No. 3, which supplements the
December 1988 Evaluation of Long-Term Sludge Disposal
Alternatives, shows that Nassau County clearly understood its
obligations under the decree to implement dewatering measures.
Nassau County environmentally analyzed four alternatives to
incineration and beneficial-use alternatives. Each of the
fourteen proposals required dewatering at Inwood or Bay Park
and Cedar. More importantly, each of the proposals identified
dewatering as the precedent to land-based management of the
sludge. (Kiselica Aff., ¶ 20 & 21).
If dewatering was considered part of "land-based
management," one would expect the RFPs deadlines to be tied to
the dewatering schedule. But they are not. For example, the
deadline for the "[c]omplete final design of all sludge
dewatering facilities" is March 31, 1990. Article V, para. 2.
However, all information gathered by Nassau as a result of the
RFPs was not to be presented to the United States and the
State until December 31, 1989.
Rather than follow the decree's mandate regarding land-based
management, Nassau's Final Request for Proposals issued on
July 10, 1989 did not provide for dewatered sludge from Bay
Park and Inwood. (DeZolt Aff, ¶ 63 & 64). In addition, Nassau
incorrectly limited the proposals to only address wet sludge
from the Bay Park/Inwood plants and by using the process only
to identify long-term options rather than to satisfy the
interim goals of land-based management. (DeZolt Aff., ¶ 67.).
Nassau is free to select a private vendor to build and
construct its dewatering equipment. Several of the responses to
the RFPs in fact offered an option for sludge management in
Inwood or Bay Park. (Kiselica Aff., ¶ 36). However, all
finalist vendors considered by Nassau involve remote-site
processing of wet sludge. Rather than follow the purpose of the
decree, Nassau appears to be pursuing its own agenda.
The essential purpose of the decree is clear: to end all
ocean dumping by December 31, 1991. The Conference Report
states: "It's clear that we cannot count on the EPA which has
earned the name the Environmental Procrastination Agency. We
need a firm deadline, in the law, to end the ocean dumping of
sewage sludge and industrial waste. Only then, will
alternatives be put in place. Only then, will the dumping
stop." Senate Debate and Conference, Vol. 134 Cong.Rec. S16685
(daily ed. Oct. 18, 1988) (Statement of Senator Lautenberg)
The Conference Report also states:
In the event that the dumper cannot meet the
deadline through the use of a long-term
alternative, the dumper must try to utilize
interim measures to meet the deadline. EPA and
the State must assist the dumper in identifying
such interim measures to meet the deadline. EPA
and the State must assist the dumper in
identifying such interim measures and EPA must
not sign an enforcement agreement to allow
dumping to continue past the 1991 date where
measures exist to end the dumping prior to the
deadline. EPA's focus in entering into agreements
with the existing dumpers must be to end the
ocean dumping of sewage sludge and industrial
waste at the earliest possible time.
Senate Debate and Conference, Vol. 134 Cong.Rec. S16685-16686
(daily ed. Oct. 18, 1988) (Statement of Senator Lautenberg).
The legislative history of the Ocean Dumping Ban Act shows
not only that Congress wanted to close every legal loophole
that the municipalities could find to delay that deadline, but
expresses its anger and frustration that the nine
municipalities had evaded the 1981 deadline for the cessation
of ocean dumping. The Conference Report states:
This legislation should never have been added.
Over a decade ago, Congress thought it had banned
ocean dumping. Unfortunately, New York City and
other dumpers took the Environmental Protection
Agency to court as the deadline approached and
won. The case not only eliminated the 1981
deadline, it also effectively ended any chance
that ocean dumping would come to a halt at any
time without a new law.
Senate Debate and Conference, Vol. 134 Cong.Rec. S16689 (daily
ed. Oct. 18, 1988) (Statement of Senator Biden).