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U.S. v. O'ROURKE

June 14, 1990

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ANDREW O'ROURKE, AS COUNTY EXECUTIVE OF THE COUNTY OF WESTCHESTER; JOSEPH CAVERLY, AS COMMISSIONER, PARKS, RECREATION AND CONSERVATION OF THE COUNTY OF WESTCHESTER; THE COUNTY OF WESTCHESTER; AND NEW YORK STATE ENVIRONMENTAL FACILITIES CORPORATION, DEFENDANTS.



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

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. INTRODUCTION

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
  economically feasible.

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 County.

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 responsibility voluntarily.

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 demolition debris.

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.

The County Executive testified at his deposition that the closing of the Landfill had nothing to do with the Consent Decree, that solid waste disposal was the concern of the County, and that the Landfill had reached capacity and had to close down. When the County closed the Landfill in 1986, the only repository for solid waste was Charles Point which by the County's own calculations was insufficient to handle the solid waste generated in Westchester County.

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 disposal.

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 required.

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.

II. FINDINGS OF FACT

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
  function.

Gov't Ex. 36, at p. 1.

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
  recreation facility.

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:

I. County Responsibility

  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
  facility.

Id. Section I of Plan, pp. 8-9. Del Bello letter 5/7/74 (emphasis added).

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 p. 1.

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
  landfill.

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 p. 10.

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. 15.

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. ...


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