The opinion of the court was delivered by: Motley, District Judge.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This action is now before the court as the result of a
contempt motion made by the plaintiff, United States of
America, pursuant to Rule 43 of the Civil Rules of this
court.*fn1 The contempt motion seeks to hold the defendant,
Westchester County (the "County"), in contempt for failure to
comply with its obligations set forth in the Consent Decree
entered by this court in December 1975. For the reasons set
forth below, this court grants the motion of the plaintiff,
finds the defendant in contempt of the 1975 Consent Decree, and
gives the defendant six months to purge itself of contempt.
The portion of the Consent Decree that is at issue is
Paragraph 5 which provides as follows:
The County is permanently enjoined and required
to continue to completion the consultation
agreement now being performed by the
Environmental Facilities Corporation with respect
to recycling of solid waste and resource recovery
and on the basis of this study by the
Environmental Facilities Corporation and any
other pertinent and available studies and in
consultation with DEC to devise long-range plans
for solid waste disposal for Westchester County,
which plans shall include resource recovery, if
In 1972, the United States filed a Complaint against the
County of Westchester, seeking to enjoin the County from
continuing to operate the Croton Point Landfill and to force
the County to close the Landfill. The Landfill is located next
to a marsh which is on the banks of the Hudson River. Since
1934 the Landfill had served as the only solid waste disposal
site in the County for municipal, commercial, and construction
and demolition waste for all solid waste generators in the
In the 1960s and '70s, the County's use of the Landfill
greatly increased. The Landfill continued to be the repository
for most of the solid waste from the County. The various
municipalities within the County and over 100 private carters
used the Landfill for municipal waste, commercial waste and
construction and demolition debris.
The Complaint filed by the Government in 1972 alleged that
the manner in which the County operated the Landfill resulted
in the pollution of over one hundred acres of marsh lands and
tidal streams; specifically, a noxious and dangerous liquid
byproduct of solid waste, referred to as leachate, flowed out
into the marsh lands and the Hudson River. The ground water
below the Landfill was also polluted with this leachate which
in turn had polluted the adjacent low lying marsh lands and
the Hudson River.
In response to the Complaint, the County opposed the closing
of the Landfill, claiming it would be irreparably damaged if
it was closed because the Landfill was the only repository for
solid waste for the County.
In 1972, the County submitted to the court (Frankel, J.) a
letter outlining the County's solid waste problems. The first
problem was to provide for the end of the Croton Point
Landfill. The second problem was to build upon the Landfill
some kind of public recreational facility. The third problem
was to find some substitute for the
Landfill, i.e., some substitute repository for solid waste.
For purposes of the instant motion, the most significant
thing the County told the court in 1972 was that the County
had assumed full responsibility for the disposition of all of
the solid waste for Westchester County. Although there was no
statute that required the County to assume full
responsibility, the County nevertheless assumed this
Pursuant to the foregoing representations by the County, the
court issued an order that provided, among other things, that
the County was to use consultants to generate reports and
devise some plan for solid waste disposal.
In 1974, two years later, the County submitted to the court
a plan for solid waste management, whereby the County again
assumed full responsibility for all solid waste in Westchester
County. This plan was predicated on the temporary use of the
Landfill. The plan provided that the Landfill would be used for
a period of three or four years, at which point the Landfill
would be closed and some other facility would be used as the
repository for solid waste.
In 1974, the County Board of Legislators adopted a
resolution to the effect that it would introduce a solid waste
program. It expressly stated that the County would assume
responsibility for all solid waste within the County.
In 1975, three years into this litigation, and after
extensive negotiations, the County and the Government entered
into a Consent Decree. The Consent Decree required, among
other things, that an expert be appointed by the court who
would determine the capacity of the Landfill, how high it
could go, and to what extent the Landfill could still be used.
In the meantime, it required the County to devise long-range
plans for solid waste disposal.
At some point after 1975, the County decided it would
increase the capacity of the Landfill. The court-appointed
consultant had concluded that the Landfill could be 110 feet.
The County hired a different consultant and that consultant
found the Landfill's capacity to be 140 feet. After
negotiations, both the Federal and State governments agreed
that the Landfill could properly reach 140 feet. However, it
was never agreed by any of the parties that the Landfill could
continue to remain open for a very long period of time. The
agreement remained that the Landfill was to be closed as
expeditiously as possible and that some other solid waste
repository would be found.
In 1984, the County contracted with a private facility known
as Charles Point in Peekskill. This facility is an
incinerator. The County contracted with Charles Point so that
the County could burn 550,000 tons of solid waste at Charles
Point per year. In 1974, the County estimated that it had
generated 900,000 tons of solid waste per year. Charles Point
would only take care of 550,000 tons. The County began using
Charles Point in 1985 for solid waste disposal. Charles Point
does not accept construction and demolition debris, which
accounted in 1985 for 58,000 tons. Other than the Landfill,
there is no place in Westchester County for construction and
In 1985, the County diverted 150 tons of solid waste which
could not be received at Charles Point, to the Croton Point
Landfill. In short, the County was still using the Landfill in
1985, ten years after the Consent Judgment was entered, when
it contracted with Charles Point.
In the first six months of 1986 the County diverted over
60,000 tons of solid waste to the Landfill. In 1986, the
Government engaged in extensive discovery with the County over
the use of the Landfill and closing of the Landfill. There
were depositions in which employees of the County basically
had admitted to leachate being discharged into the Hudson
River. Very soon after those depositions, the County decided
to close the Landfill.
In 1987, the Government moved for contempt of the Consent
Decree based on two violations; the first alleged violation
was that the County was discharging leachate into the Hudson
River; the second alleged violation was that the County has
failed to devise any long-range plans for solid waste
In December 1989, on the eve of a hearing on the contempt
motion, the Government and the County settled the leachate
question. The County agreed to hire a leachate consultant who
would determine the extent of the leachate problem with
respect to restoration of the area. They agreed to hire a
marsh consultant who would review the degradation of the area
due to the pollution and what restoration and remediation was
The one issue that could not be settled was the solid waste
issue. The response of the County to the contempt motion was:
one, it had not assumed responsibility for all solid waste in
Westchester County and, two, even if it had assumed
responsibility, it has done all it was required to do under
Paragraph 5 of the Consent Decree. The County's claim is that
by its agreement with Charles Point, it has developed a solid
waste plan for the County and that it is continuing to do so.
The County noted that it had appointed a Solid Waste Task
Force and had hired a Solid Waste Consultant.
Having so noted its recent actions, the County then took the
position in its opposition papers that Paragraph V of the
Consent Decree simply requires that it devise a plan and does
not require the County's plan so devised to be implemented.
The court agrees with the Government that such a reading of
Paragraph V is just contrary to all common sense. In view of
the history of the case prior to Paragraph V and the Consent
Decree of which it is a part, it is obvious that the intent
was not to have the County hire a consultant to sit in a room
and to devise plans that would not be implemented.
The court also agrees with the Government that even if you
take the County's reading and say that all it had to do is
devise a plan, it still has not done so. All it has done is to
contract with Charles Point which is inadequate and does not
take into account the County's long-range solid waste disposal
needs. In 1984 the capacity at the Charles Point Facility was
670,000 tons. The County contracted to burn 550,000. The
remainder was diverted to the Landfill or shipped to a site in
Pennsylvania. The County now refuses to accept responsibility
for commercial waste and construction and demolition waste. It
believes its responsibility is limited to the waste generated
by the various municipalities in the County with which it has
contracted. It does not have a contract with all of the
municipalities in the County.
In 1984, the County generated approximately 840,000 tons of
solid waste but had estimated in 1974 that it would generate
900,000 by 1984. The Landfill was still open in 1984, into
which the additional 60,000 tons was diverted. At the time of
the hearing on the motion in April 1989, the County was still
generating approximately 840,000 to 900,000 tons of solid
waste. The actual figure in 1987 was 842,000 tons of solid
waste. The County's own consultant estimates that by the year
2,000 the County will be generating 980,000 tons of solid
waste which includes municipal waste, private commercial waste
and construction and demolition debris.
1) The Consent Decree required the County to close the
Landfill as soon as it reached its capacity, that capacity to
be decided by court-approved experts within six months of the
entry of the Consent Decree. Gov't Ex. 1, Paragraph III B.
2) In this interim phase, during which the County was
allowed to operate the Landfill until it reached the capacity
decided by the court-approved experts, the final Consent
Decree ordered the County "to devise long range plans for
solid waste disposal for Westchester County, which plans shall
include resource recovery, if
economically feasible." Gov't Ex. 1, Paragraph V.
3) The County now has admitted that the Consent Decree
obligated the County to devise and implement long range plans
for County-wide solid waste disposal. Oral Argument Transcript
(April 28, 1989), pp. 34-36; 37; 39-40.
4) There is no evidence in the record to demonstrate that
prior to 1981, the County devised or implemented any plans
whatsoever, long range or otherwise, for an alternative solid
waste repository to the Landfill.
5) In response to the Government's initial motion for a
preliminary injunction in this action seeking, among other
things, to close the Landfill, the County claimed that closing
the Landfill — its only repository for solid waste — would
cause the County irreparable harm. Gov't Ex. 15, pp. 4-5.
6) The County's immediate response to the Government's
request for preliminary relief was as follows:
The County's position is that we admittedly have
a problem, and one to which we have been seeking
a three-fold program: first, to provide for an
end of all disposal at Croton Point as quickly as
possible; second, to install recreational
facilities on the resulting fill; thirdly, to
provide a substitute method for the eventual
disposition of the county's solid waste, now 2,500
tons a day.
Gov't Ex. 36 (emphasis added), p. 1.
7) The 2,500 ton per day figure included municipal,
commercial and construction and demolition waste. Gov't Ex.
36, p. 1.
8) Having thus represented to the court that the County
understood and accepted the need to replace the Landfill as
the sole repository for waste generated within the County, the
County Attorney emphasized, in opposing the Government's
application for injunctive relief, that the County had already
undertaken the obligation to dispose of all of the County's
waste as its own responsibility:
Waste disposal by state law is not a county
responsibility, but that of the cities, towns and
villages, but the county has assumed the
obligation because the local communities cannot
do so and have asked the county to handle the
9) On June 6, 1972, the court entered an order (the "1972
order") that, in essence, granted the Government's motion.
Gov't Ex. 16.
10) The County was also ordered to submit monthly reports to
the court on its compliance with the 1972 Order. In these
monthly reports, the County reported that it had engaged the
services of Leonard S. Wegman Co. ("Wegman") and the
Environmental Facilities Corporation ("EFC") for the
"formulation of a comprehensive county-wide solid waste
management plan for review and adoption by the County." Gov't
Ex. 37, Ex. A (# 1)
11) Finally, two years after the entry of the 1972 Order,
the County submitted to the court with its Twenty-Fourth
Report, a plan based upon studies conducted by Wegman and the
EFC. Gov't Ex. 38 (entire report)
12) The 1974 Plan was predicated upon temporary use of the
Landfill for a few more years until an all-encompassing solid
waste disposal plan was constructed to replace it:
The plan envisions an "interim" phase between now
and 1978 and a "continuing phase" when the full
spectrum of resource recovery systems have been
established. During the interim phase, it is
recognized that the continued use of the Croton
Point sanitary landfill will be necessary in order
to give the County sufficient time to construct a
feasible and economic system of resource recovery
facilities. However, it is contemplated that the
operations there will be ended as soon as possible
and the landfill site restored to a useful
Gov't Ex. 38, p. 2. (Emphasis added).
13) In transmitting the 1974 Plan to the Westchester Board
of Legislators for its adoption, then County Executive Alfred
B. Del Bello described the "basic elements" of the plan as
including, inter alia:
The County of Westchester will assume the total
responsibility for the disposal of the 900,000 tons
per year of solid waste generated by the County's
municipalities. The methods of disposal will be
consistent with the highest environmental
standards. The municipalities will continue to be
responsible for the collection of the wastes within
their borders, and for the delivery of the wastes
to the nearest designated county waste treatment
Id. Section I of Plan, pp. 8-9. Del Bello letter 5/7/74
14) The 900,000 figure referred to in the 1974 Plan was the
County's estimate for municipal, commercial and construction
and demolition waste. Gov't Ex. 38, Section III, DEC and EFC
Study, April 1974, p. iii, attached to Plan.
15) In the process of taking total responsibility for waste
disposal, the County planned to "take over" existing
municipally-owned solid waste disposal facilities, and to
close the Landfill once the County's plan to replace it was
put into effect. Id., p. 2-3, 4 (2nd document)
15a) The 1974 Plan emphasized that the problem of disposing
of all of Westchester's waste could be remedied "only . . .
through the development of a County-wide Master Plan."
Id., p. 13, the Plan at p. 1.
16) To maintain its economic viability, the County insisted
that the system must be "under County control, with the
operation in the hands of those who are politically
responsible for its successful implementation." Id., p. 19, the
Plan at p. 7.
17) The 1974 Plan estimated that, by 1980, Westchester would
produce over one million tons per year of residential,
commercial and industrial solid waste. Id., p. 13, the Plan at
18) In the 1974 Plan, the County expressly noted that this
undertaking was required by the 1972 Order:
Under the terms of the U.S. court order that was
issued directing the County and the EFC to take
remedial steps, the County was directed to
undertake studies, with a qualified consultant,
leading to the development of a plan for alternate
sites for waste disposal, the recovery of resources
from the solid waste stream in order to reduce that
quantity, and to undertake other technical studies
regarding the prudent operation of the sanitary
Id., p. 15, the Plan at p. 3. (emphasis added)
19) Citing "county-wide demand for the County assumption of
responsibility for solid waste disposal," the County reported
that "[s]ince this is a county-wide problem, the solutions
must be applicable county-wide. . . ." Id., p. 22, the Plan at
20) The 1974 Plan was "predicated on the concept that . . .
there is a need for the County to assume primary
responsibility for waste disposal." Id., p. 27, the Plan at p.
21) On August 19, 1974, the County Board of Legislators
unanimously adopted the 1974 Plan that had been submitted to
the court, which made clear that the County had undertaken to
dispose of all solid waste generated within the borders of
Westchester County. ...