United States District Court, Southern District of New York
June 14, 1990
UNITED STATES OF AMERICA, PLAINTIFF,
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
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.
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
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.
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
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
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
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. The Resolution described the purpose of the
1974 Plan as follows:
The County of Westchester will assume the total
responsibility for the disposal of all solid waste
generated within the municipalities of the County.
Gov't Ex. 3, p. 006975. (emphasis added)
22) Paragraph V of the Consent Decree was predicated on the
County's prior assertions as to the scope of its
responsibility for disposal of all of its waste and the
Government relied on these assertions when it entered into the
23) At a May 24, 1987 meeting with the mayors of several
cities and a private resource recovery facility vendor, County
Executive O'Rourke stated, in response to suggestion that the
County, not municipal government, was responsible for
disposing of garbage, that:
The responsibility, indeed, is the County's and
we live with that responsibility. We appreciate
your help, but in the final
analysis you all may go back to your other duties
tonight and we have to burn 100 tons of garbage.
And we have to do it and everybody expects us to
do it and we will do it.
Videotape shown at April 28, 1989 Oral Argument.
24) None of the evidence in the record suggests that the
County informed the New York State Supreme Court, Westchester
County, of the existence or substance of the Consent Decree in
Industrial Refuse Systems Inc. v. O'Rourke, 134 Misc.2d 45, 509
N YS.2d 988 (Sup.Ct. Westchester County 1986), modified on
other grounds 129 A.D.2d 76, 516 N.Y.S.2d 940 (2d Dept. 1987).
25) The Government's only participation in Industrial Refuse
was limited to informing the state court by submission of a
four page letter of the existence of the Consent Decree. Gov't
26) The state court ruled
In their memorandum of law, plaintiffs claim that
the rules established by Weber violate County Law
article 5A. The underlying argument advanced in
support is that it is the county's obligation
[pursuant to New York state law] to transport and
dispose of county-generated refuse. For reasons
hereinafter discussed, the court disagrees with
plaintiffs' position on this point.
Parenthetically, the court notes that the United
States Attorney has taken the position that prior
Federal District Court litigation was resolved by
imposition of this very obligation on the County.
However, the United States Attorney's position
was advanced by letter to the Court, the U.S.
Attorney does not represent a party to this
action, the material presented by him does not
support the claim advanced by him and the issue is
not before this court in this action.
Industrial Refuse Systems v. O'Rourke, supra, 509 N.Y.S.2d 988,
992 (emphasis added).
27) In 1978, when the County claims to have offered the
municipalities and the private carters the opportunity to use
the proposed but not yet built Charles Point facility, the
Landfill was still open for some additional eight years later.
28) The Charles Point facility commenced operations in
October 1984. Gov't Ex. 44, p. IX.
29) The County did not announce the closing of the Landfill
until June 1986. Gov't Ex. 41, Weber Aff. (second in exhibit),
30) The private carters cannot dispose of their construction
and demolition debris at the Charles Point facility. Oral
Argument Transcript (April 28, 1989), p. 39.
31) There is no evidence in the record to demonstrate that
the County began devising adequate long range plans at any
time prior to the filing of the instant contempt motion in
August 1987. See, e.g., Plaintiff's Proposed Findings of Fact,
paragraphs 9, 15, 16, 23, 24, 27, 28, 39, 50-62.
32) The County admits that it did not formulate any plans to
construct a recycling plant until 1989. County's Proposed
Facts, paragraph 20.
33) There is no evidence in the record of such plans for a
34) There is no evidence in the record to indicate when the
County will complete its "formulation" of the "plans" for the
recycling plant, or when the County expects the recycling
plant to be operational.
35) The County admits that the capacity of the recycling
plant will be limited to only 52,000 tons of refuse per year.
County's Proposed Facts, paragraph 20.
36) Because the new facility will not be a landfill, it will
not be capable of disposing of construction and demolition
debris. Oral Argument Transcript (April 28, 1989), p. 39.
37) By the County's estimates, the County generates
approximately 200,000 tons of waste per year in excess of the
capacity of the Charles Point Plant, which includes
approximately 100,000 tons of construction and demolition
waste. Gov't Ex. 54, p. 11; Gov't Ex. 57, pp. 3 (Table 1), 14
(Table 9), 15.
38) Even if there were a new plant, the County has not
devised adequate long term solid waste disposal plans.
39) In the County's Proposed Facts, it states, without any
citation to the record, that it has now
finalized an application for submission to the
Department of Environmental Conservation ("DEC")
to designate the County as the "planning unit" on
a regional basis, for the entire County of
and recites New York State's "planning requirement," which
must be complied with to be eligible for a grant to fund such
planning. County's Proposed Facts, paragraphs 22, 24.
40) There is no evidence in the record to demonstrate that
the County planned, prior to the filing of the instant
contempt motion, to apply for "planning unit" status.
41) There is no evidence in the record, nor does the County
state, whether the County has yet submitted its application to
DEC or whether DEC has granted the County status as a
41a) In a Committee Report to the Board urging the Plan's
approval, the Public Works Committee of the Board made clear
that the 1974 Plan was developed pursuant to this court's 1972
The [1972 Federal] suit resulted in a court order
requiring the County to upgrade the operations at
the landfill and to investigate county-wide
systems of resource recovery.
Gov't Ex. 2, p. 006970.
42) In December 1978, the site of Charles Point in the town
of Peekskill was proposed as the location of a mass-burning
waterwell incineration resource recovery facility (the
"Facility"). To obtain the necessary financing for the
Facility, the County needed to obtain commitments from
municipalities that a guaranteed quantity of refuse would be
delivered to the Facility. Gov't Ex. 44, pp. 105-06.
43) The County negotiated inter-municipal agreements
("IMAs") with the municipalities that agreed to commit a
minimum quantity of refuse to the Facility. By October 1979,
the County had entered into IMAs with 33 municipalities. This
represented a commitment of an average tonnage of 370,000 tons
per year and a minimum 330,000 tons per year. Subsequently,
two additional municipalities entered into IMAs, thereby
increasing the total quantity of municipally collected solid
waste guaranteed under the IMAs to 419,000 tons per year.
44) The IMAs required each municipality to pay a specified
fee for each ton of refuse delivered to the Facility ("tipping
fee"). Under the IMAs the County agreed to accept and dispose
of all municipally collected solid waste of each participating
municipality up to a specified maximum tonnage equal to 110%
of the nominal commitment of the IMA participants, or an
aggregate maximum amount of 461,150 tons per year. Based upon
these estimates of committed tonnages, the County determined
that a refuse recovery facility with a capacity of 550,000
tons per year would be necessary to accommodate the solid
waste of the 35 municipalities who signed IMAs. Presently 36
municipalities have signed such IMAs. Id. at 121, Gov't Ex. 41,
Gibbs Aff., p. 2.
45) The County of Westchester also approached the various
private carters doing business within Westchester County to
negotiate similar agreements in order that the tonnage handled
by such private businesses could be added to the total tonnage
commitment for the proposed Facility. Gov't Ex. 41, Gibbs
Aff., pp. 6-7; Gov't Ex. 44, p. 115.
46) In June of 1981, a solid waste disposal agreement
regarding the proposed development of the Facility was entered
into between an agency of the County (the County of
Westchester Industrial Development Agency) and Wheelabrator
Frye, Inc. Thereupon, an entity known as "Resco" was formed to
construct and operate the Facility. The Facility began
accepting solid waste on October 22, 1984. Gov't Ex. 41, Gibbs
Aff., pp. 4-5.
47) In conjunction with the construction of the Facility,
the County was to design and implement an efficient system of
located transfer stations. The County also was to acquire a
fleet of tractors and transfer trailers for waste hauling, and
a landfill solely for the deposit of ash residue generated by
the burning of solid waste at the Facility. There is no
evidence in the record that these requirements have been met.
Gov't Ex. 44, p. ix; Gov't Ex. 41, Miles Aff. (third in
exhibit), pp. 4-5.
48) In 1986, the capacity of the Facility available to the
County by permit was increased to 657,000 tons per year from
550,000 tons per year. This represents 80% of the total
potential capacity of the facility. Id. Gov't Ex. 41, p. 2. The
County claims that it has since requested the New York State
Department of Environmental Conservation to increase the
operating permit for the Facility to 740,000 tons per year.
49) County Executive O'Rourke appointed a Solid Waste Task
Force (the "Task Force") to investigate further and update
past studies regarding the County's future solid waste
disposal needs and alternatives for such disposal, including
recycling. The consulting firm of Henningson, Durham &
Richardson was retained to assist the County in conducting
this study. The Task Force has investigated, among other
things, the feasibility of constructing a second resource
recovery facility or adding a fourth boiler to the Facility.
Gov't Ex. 57.
50) This planning for the future, according to the County,
has been, and still is, being conducted in conjunction with
the New York State Department of Environmental Conservation.
51) Although no plans were submitted, the County claims that
plans are now being formulated to construct a Material
Recovery Plant within Westchester County at a cost of
approximately ten million dollars. This type of facility, the
County says, is intended to be utilized to remove all
materials from the solid waste stream which can be reused and
to recycle those materials which cannot be reused. The
proposed two-story, 30,000 square foot center to be built in
Yonkers, would cost an estimated 1.8 million dollars a year to
operate and would handle 52,000 tons of refuse a year.
52) Charles Miles, the Solid Waste Division Director of
Tonnage, estimated that the solid waste generated within the
County during 1986 could exceed the County's annual
contractual commitment at the Charles Point Plant by as much
as 474,500 tons (1300 tons per day). Gov't Ex. 41 (Miles Aff.
53) In 1984, soon after Charles Point opened, County
Executive O'Rourke engaged the services of Mr. Ogden Reid to
act as a Special Commissioner to investigate various matters
relating to the Charles Point Plant, including whether it "was
adequately planned to meet the needs of the County and whether
it has sufficient capacity to meet the County's current and
future needs." Gov't Ex. 44, p. x.
54) Commissioner Reid concluded that the County did not have
the capacity to meet the County's current and future solid
waste disposal needs. Id. pp. xi-xii.
55) After an extensive review of the County's estimate of
its own waste disposal needs, the Reid Report noted, inter
[t]he 657,000 ton capacity of the Charles Point
facility is not sufficient for the disposal of
all of the solid waste generated by the IMAs, the
municipalities who have not yet signed IMA
agreements and the private carters. Thus, if the
County considers itself under a legal or moral
obligation to dispose of the solid waste
generated by the private carters, immediate
attention must be given to building an additional
plant or obtaining some other means to dispose of
the excess solid waste. . . . In sum, we have
concluded that completion of the Charles Point
facility has not solved Westchester's solid waste
problems and that those issues are going to
require a great deal of attention in the years
Id. pp. xi-xii.
56) The Reid Report, citing the County's 1974 Plan for solid
waste disposal and the responsibility the Plan recited for the
disposal of 900,000 tons per year, observed "an important
change in focus from the prior attention given [by the County]
total amount of solid waste generated in the county."
Id. p. 105.
57) Rather than move ahead with the 1974 Plan submitted to
this court, the Reid Report noted that the then-County
Executive Alfred Del Bello instead proposed in 1978 that the
County construct a plant capable of handling only 550,000 tons
of waste per year and eliminated from the County's efforts
any planning for commercially-generated solid waste. Id. at pp.
58) According to the Reid Report, the County has been aware
since at least 1977 that such a plant as the facility at
Charles Point would be insufficient to dispose of all the
solid waste generated within Westchester County and in 1986
the County abandoned its obligations under the Consent Decree
to provide for solid waste disposal county-wide. Id.
59) Malcolm Pirnie, Inc. ("MPI"), a consultant retained by
the County, estimated that, by 1985, the County would generate
approximately 783,000 tons per year of municipal and private
solid waste. Id. p. 104.
60) Based upon this projection, MPI recommended that the
County program include two resource recovery facilities, with
a combined capacity of 2600 tons per day, to plan for the
County's long-term waste disposal needs through the year 2000.
Id. pp. 104-05.
61) Indeed, the actual quantity of waste generated in 1976,
716,000 tons, well exceeded the capacity of the Plant, which
did not open until 1984. Id. at p. 104.
62) The Reid Report also stated that, to accommodate all of
the waste generated within the County, "[the County] must
immediately begin planning for added capacity at the plant or
for some viable alternative disposition of the excess solid
waste." Id. pp. 126-27.
63) The Reid Report further said that "the County should
begin to make a realistic assessment of the solid waste being
generated within the County and the reasonable projections for
future growth . . ." Id. p. 132.
64) The Report concluded that:
[It] should be clear that the present capacity of
the plant is adequate to meet the current County
needs for the solid waste it is obligated to
accept [under its contractual commitment to the
IMA municipalities]. It is also evident that the
total solid waste generated within the County
exceeds the capacity of the Charles Point
facility. Thus, the completion of the Charles
Point facility has not solved all of Westchester
County's solid waste problems and those issues
are going to require a great deal of attention in
the years ahead.
Id. p. 134.
65) Up until June 1986, eleven years after the entry of the
Consent Decree, the Landfill remained open. Gov't Ex. 45, p.
66) From the opening of the Plant in 1984 until the closing
of the Landfill in June 1986, the private carters had access
to the Plant on a limited basis and to the Landfill. Gov't Ex.
44, p. 122.
67) When the County closed the Landfill, the private carters
were abruptly eliminated from the County's "system" because
the County had done nothing to plan for the vast amount of
waste which, until that point, the private carters had been
delivering to the Landfill. Gov't Ex. 45, p. 1.
68) The closing of the Landfill, more than eleven years
after the entry of the Consent Decree, reveals that the County
had failed to devise long range plans as required by that
Decree, and had unilaterally abandoned its representations to
the court to assume "total responsibility" for disposal of all
solid waste generated within the County. Gov't Ex. 45.
69) When the Landfill finally closed, the County's waste
disposal capacity was far short of the capacity it had
promised this court it would put in place. Gov't Ex. 41, Weber
Aff. (second in exhibit).
70) When the Landfill closed, a large and important
component of the County's waste disposal "system" was removed
and the County had devised nothing to replace it. Id.
71) With the closing of the Landfill, the County's waste
disposal system is solely dependent on the Plant. Id.
72) Prior to its closing, the Landfill was "utilized to
dispose of [such] solid waste, including construction debris
and demolition material, which could not be disposed of at
[the Plant]." Id. (Weber Aff., paragraph 4).
73) During 1985, the Landfill was the repository of 234,904
tons of solid waste that was either diverted from the Plant or
consisted of construction debris, and the same tonnage was
estimated for 1986. Gov't Ex. 44, Reid Report, p. 126; Gov't
74) The County neither owns nor controls a "back-up"
landfill to the Plant, even though its contract with the
operator of the Plant requires the County to provide a back-up
landfill to cover for breakdown and excess deliveries. Gov't
Ex. 41 (Weber Aff., paragraph 5-6).
75) The only contingency arrangement the County has is an
"informal arrangement" for the use of a landfill in Dunmore,
Pennsylvania, approximately 120 miles away from Westchester.
Id. (Weber Aff., paragraph 7).
76) The County waited until circumstances forced the
Landfill to close and then denied any obligation to replace
it. Mr. O'Rourke stated:
I don't recall the consent judgment having a big
impact on us. We knew we had to close Croton
someday. Just natural capacity limitations would
cause us to close it and we tried to get
everybody aware of what was happening.
Gov't Ex. 40, p. 113.
77) In June 1986, only a few weeks before the Landfill
actually closed, the County Executive first formed a "Solid
Waste Task Force" ("SWTF") to examine the County's
"long-range" waste disposal needs. Id. p. 60.
78) The SWTF did not hold its first meeting until June 10,
1986 — just three weeks before the closing of the Landfill.
Gov't Ex. 40, p. 58; 60-64; Gov't Ex. 53.
79) There is no evidence in the record to demonstrate that
the SWTF has yet rendered even a preliminary report merely
recommending to the County Executive "possible alternatives on
a county-wide planning basis." Gov't Ex. 40, p. 63.
80) Henningson, Durham and Richardson ("HDR"), the
consultants working with the SWTF were not retained by the
County until nearly two-and-a-half months after the Landfill
closed and then only to devise a short-term contingency plan
for the diversion of solid waste if the Peekskill plant should
break down. Gov't Ex. 54, pp. 17-21, 23-24.
81) Even this short-term plan was based on the premise that
the County is responsible only for the municipal waste it
accepts pursuant to the IMAs. Id.
82) When John Rose, a principal of HDR was asked whether HDR
had developed a long-term waste disposal plan for the County
or had been asked by the County to do so, he answered "No."
Id., p. 25.
83) As of October 5, 1987, HDR still had not been told
whether the County was going to retain HDR to develop a
long-term plan. Id. pp. 33-34; 115-116.
84) The County has hampered HDR's ability to propose the
development of a long-range plan for waste disposal, because
the County has not advised HDR of the type or amount of waste
to be accommodated by such a plan. Id. p. 29.
85) Eleven days before the Landfill closed, Calvin Weber,
Deputy Commissioner for Solid Waste, wrote to the
municipalities of Westchester that had entered into IMA
contracts with the County to dispose of waste at the resource
recovery plant. His letter informed the municipalities that
the County's capacity for waste disposal was sharply limited:
The closing of the Croton Point Landfill will
result in the reduction of the available disposal
capacity of the solid waste management system to
the permitted 657,000 tons per year capacity of
the Charles Point Facility.
Gov't Ex. 45, p. 1.
86) The County informed the municipalities that:
It must be noted that the Refuse Disposal
District does not accept responsibility for
diversion of the supplemental tons in the event of
a breakdown at the plant or if the plant cannot
handle the supplemental tons for other reasons.
Responsibility for diversion of supplemental tons
will be that of the municipality. The District will
continue to be responsible only for solid waste
tonnage under the original IMA.
Id., p. 2. (The "Refuse Disposal District" is a tax district
created by the County to fund the operation of the Plant. All
property owners within the district pay an ad valorem tax to
support the Plant, including taxpayers whose waste is collected
by private carters who have been barred from using it.) Gov't
Ex. 41 (Gibbs Aff., paragraph 5(b)).
87) The County left to their own devices (i) the
municipalities that collect waste in excess of their allotment
at the Plant; and (ii) the private carters who collect all the
waste in Westchester that is not collected by the
municipalities themselves, or does not fall within the
County's contractual obligations. Id. (Gibbs Aff.); Gov't Ex.
48, p. 4; Gov't Ex. 45, p. 2.
88) The County admitted:
The County has a finite capacity at its Charles
Point Facility to dispose of the waste brought
there. Moreover, the County has neither the
manpower nor the equipment necessary to undertake
handling the vast excess tonnage of waste which the
commercial carters seek to make the responsibility
of the County.
Gov't Ex. 41, Weber Aff., paragraph 8, p. 3.
89) In 1986, the private carters brought suit against the
County based on the County's refusal to accept the private
waste. See Industrial Refuse Systems v. O'Rourke, supra.
90) The state court dismissed the private carters' lawsuit
on state law grounds. Id. The United States was not a party to
that lawsuit. Id.
91) In that proceeding, the County admitted that
We are under a Federal Court order to close the
Croton Landfill. Croton was our more or less
pressure relief valve for the Peekskill facility.
Everything that was not able to be handled at
Peekskill was diverted to Croton. Now that we've
closed Croton, we don't have an effective means
within the County for disposal of the overflow from
Peekskill. In addition, Croton handled things that
the facility could not handle. Things like
construction and demolition material. Things that
are not capable of being burned and disposed of at
the Peekskill facility.
Gov't Ex. 46, pp. 65-66. (Emphasis added).
92) The County lacked the necessary trucks, staff,
contracts, back-up equipment and personnel to dispose of the
waste that the Plant could not accept. Gov't Ex. 41 (Miles
Aff., paragraphs 9-10).
93) The County had no allocation within its budget to secure
the necessary equipment and manpower to dispose of its excess
waste. Id., paragraph 12; Gov't Ex. 46, pp. 61-64.
94) On June 16, 1986 the County began arrangements to
allocate the limited remaining capacity at the Plant to waste
that previously had gone to the Landfill. Gov't Ex. 45.
95) The County's refusal to develop long-range plans for all
of the solid waste it generates leaves no plan, at all, for
the disposal of hundreds of thousands of tons of solid waste.
Gov't Ex. 42.
96) By the year 2000, the County estimated that it will
generate a total of 980,000 tons per year. Gov't Ex. 57, p. 14
97) In 1986, Westchester generated 842,000 tons of solid
waste, including IMA waste, non-IMA waste and commercial and
C & D waste. Id.
98) "Non-IMA" waste constitutes between 35-50% of the total
waste generated in Westchester. Gov't Ex. 54, p. 32.
99) Commercial and C & D waste, for which the County
disclaims any responsibility,
amounts to hundreds of thousands of tons per year. Gov't Ex.
100) C & D waste presently constitutes 100,000-150,000 tons
of waste per year. Gov't Ex. 54, p. 33.
101) 100,000 tons of C & D material will require disposal on
an annual basis, with possible peak years of as much as
150,000 tons. Id.
102) Measured against the County's allocation of only
550,000 tons per year at the Plant (or even the Plant's full
permitted capacity of 657,000 tons per year) the County's own
consultant has concluded that "the County is confronted with
a potential crisis in solid waste disposal capacity." Gov't
Ex. 57, pp. 14-15.
103) The Croton Point Facility, as the sole component of the
County's waste disposal system, is simply not capable of
disposing of all the waste for which the County should have
been planning since the Consent Decree was entered in 1975.
Gov't Ex. 54, pp. 21-23.
104) The County has recently stated that it now has plans
for a resource recovery facility but has never informed the
United States of these plans or provided these plans to the
United States. Oral Argument Transcript (April 28, 1989), pp.
105) Under one "plan," the County would publicly offer to
accept commercial waste into the County system, but on terms
made deliberately too burdensome for the municipalities to
accept. In a memorandum to file recording discussions with
County Officials Charles Miles and Anthony Carbone, HDR
Consultant John Rose wrote, with respect to this "Supplemental
One approach is to implement the policy, but with
put-or-pay provisions that would be so onerous
that the municipalities will say
thanks-but-no-thanks. That way the County will
appear to be willing to do something for the
commercial waste generators, but the municipalities
would be blamed.
Gov't Ex. 59, p. 3 (emphasis added).
106) County Commissioner for Public Works Frank Kearney
"suggested that no contingency plan be enacted, based on the
operating history of the [resource recovery plant]," and
instead, suggested that, if a failure occurred at the plant,
DEC "could be contacted . . . and petitioned to open Croton."
Gov't Ex. 60.
107) There is no evidence in the record to show that the
County ever petitioned this court for a modification of the
III. CONCLUSIONS OF LAW
1) In a motion for civil contempt, the Government must show
by clear and convincing evidence that defendants have not
complied with the court's order. N.A. Sales Co., Inc. v.
Chapman Industries, 736 F.2d 854, 857 (2d Cir. 1984). Even lack
of intent to violate the court decree is not a defense. The
issue is simply whether the Decree has been violated. See e.g.,
McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S.Ct.
497, 499-500, 93 L.Ed. 599 (1949); NLRB v. Int'l Brotherhood of
Teamsters, 428 F.2d 994, 1001 (2d Cir. 1970).
2) A finding of contempt is warranted where, as in this
case, "defendants violated their obligations under the decree
by failures of diligence, effective control, and steadfast
purpose to effectuate the prescribed goals." Powell v. Ward,
487 F. Supp. 917, 933 (S.D.N.Y. 1980), aff'd on this point,
643 F.2d 924, 931 (2d Cir.), cert. denied, 454 U.S. 832, 102 S.Ct.
131, 70 L.Ed.2d 111 (1981), quoting Aspira v. Board of
Education, 423 F. Supp. 647, 651 (S.D.N.Y. 1976).
3) The Supreme Court has provided explicit guidance
regarding how the meaning is to be derived from the four
corners of a consent decree:
[S]ince a consent decree or order is to be
construed for enforcement purposes basically as a
contract, reliance upon certain aids to
construction is proper, as with any other
contract. Such aids include the circumstances
surrounding formation of the consent order, any
technical meaning words used may have had to the
parties, and any other documents expressly
incorporated in the decree. Such
reliance does not in any way depart from the
"four corners" rule in Armour. [United States v.
Armour & Co., 402 U.S. 673, 91 S.Ct. 1752, 29
L.Ed.2d 256 (1971)].
United States v. ITT Baking Co., 420 U.S. 223
, 238, 95 S.Ct.
926, 935, 43 L.Ed.2d 148 (1975). Accord Taitt v. Chemical Bank,
810 F.2d 29
, 32 (2d Cir. 1987); Berger v. Heckler,
771 F.2d 1556
, 1567-68 (2d Cir. 1985); New York State Ass'n for Retarded
Children v. Carey, 596 F.2d 27
, 37 (2d Cir. 1979); Duracell
Inc. v. Global Imports, Inc., 660 F. Supp. 690, 692 (S.D.N Y
4) By the terms of the Consent Decree, the County was and is
obligated to devise and implement long range plans for solid
waste disposal, including commercial waste and construction
and demolition debris. Oral Argument Transcript (April 28,
1989), pp. 34-50.
5) The record discloses that the parties intended that the
County be responsible for the disposal of all solid waste in
the County including municipal, commercial, and construction
and demolition waste. Id., p. 47.
6) The record shows by clear and convincing evidence that
the County has not to this day devised and implemented
adequate long-term plans to handle county-wide solid waste
disposal. Id. at pp. 31-32; Gov't Ex. 44.
7) The record shows by clear and convincing evidence that
the Charles Point Plant is not sufficient to handle the solid
waste disposal for the County. See e.g., Gov't. Ex. 44.
8) Because the record shows by clear and convincing evidence
that the County has failed to devise a solid waste plan to
accommodate all county solid waste, including construction and
demolition debris, the County is in contempt of the Consent
9) "A district court has broad discretion to fashion an
appropriate coercive remedy in a case of civil contempt, based
on the nature of the harm and the probable effect of
alternative sanctions". N.A. Sales Co., Inc. v. Chapman
Industries, 736 F.2d 854, 857 (2d Cir. 1984).
10) This court is disturbed by the defendants' lack of
diligence and commitment in taking the steps necessary to
achieve compliance. Powell v. Ward, 487 F. Supp. 917, 933
(S.D.N.Y. 1980), aff'd, 643 F.2d 924, 931 (2d Cir.), cert.
denied, 454 U.S. 832, 102 S.Ct. 131, 70 L.Ed.2d 111 (1981).
11) The language of the Consent Decree in Paragraph V is
clear on its face as to the County's responsibility to devise
and implement long range plans. The court has been required to
ascertain the intent of the parties on the issue of whether
the long range plans were to encompass all solid waste,
including municipal, commercial (private) and construction and
demolition (public and private).
12) The County cannot ignore its own representations to the
court to avoid compliance with the Consent Decree. See Perfect
Fit Industries, Inc. v. Acme Quilting Co., 646 F.2d 800, 809
(2d Cir. 1981) (reference in consent decree to extrinsic
exhibits which demonstrated contemnor's "grasp of [the]
documents and its complete acquiescence in reference to them";
contempt citation affirmed).
13) The self-serving affidavits of County Commissioner of
Planning Peter Q. Eschweiler and former County counsel William
F. Koegel are nothing more than statements of "what might
satisfy the purposes of one of the parties to" the Consent
Decree and therefore are immaterial. United States v. Armour &
Co., 402 U.S. 673, 682, 91 S.Ct. 1752, 1757-58, 29 L.Ed.2d 256
14) Any rulings in Industrial Refuse, supra, are legally
irrelevant to this motion because collateral estoppel cannot be
applied against a non-party to a lawsuit. Parklane Hosiery v.
Shore, 439 U.S. 322, 327 n. 7, 99 S.Ct. 645, 649 n. 7, 58
L.Ed.2d 552 (1979); See Staten Island Rapid Transit Op. Auth.
v. I.C.C., 718 F.2d 533, 542 (2d Cir. 1983). Because the
Government was not a party to Industrial Refuse, it is not
bound by any rulings therein. Id.
15) In Industrial Refuse, the state court merely held that
the County is not required under state law to be responsible
for solid waste disposal; it in no way prohibits such an
16) The basis of the County's responsibility for waste
disposal is its agreement, embodied in the Consent Decree, to
undertake that responsibility. "Indeed, it is the parties'
agreement that serves as the source of the court's authority
to enter any judgment, at all . . . [m]ore importantly, it is
the agreement of the parties, rather than the force of law
upon which the complaint was originally based, that creates
the obligations embodied in a consent decree." Local Number 93,
International Ass'n of Firefighters v. City of Cleveland,
478 U.S. 501, 522, 106 S.Ct. 3063, 3075, 92 L.Ed.2d 405 (1986).
17) The state court in Industrial Refuse did not rule on the
County's obligations under the Consent Decree.
18) Even if the requirements of the Consent Decree were
somehow in conflict with state law, the County would
nonetheless be required to abide by the federal judgment under
constitutional principles derived from the supremacy clause.
Badgley v. Santacroce, 800 F.2d 33, 38 (2d Cir. 1986).
19) The County was in contempt of Paragraph V of the Consent
Decree at the time of the filing of the instant motion and is
still in contempt.
20) Because of the County's contempt of the Consent Decree,
the County will be ordered to pay a fine and to devise and
implement long-term solid waste plans for all solid waste in
Westchester County, including commercial, construction and
demolition waste, in accordance with a court-ordered schedule
of milestone events, unless within six months of the date of
the Final Order on this motion, the County has purged itself
of contempt by filing with the court an adequate, fully
developed long-range plan, containing a schedule of milestone
events with provisions for stipulated penalties in the event
of noncompliance with any event, to take care of all of the
solid waste in the County, including commercial waste and
construction and demolition waste as contemplated by Paragraph
V of the 1975 Consent Decree.*fn2
21) The County shall, within 120 days of the date of the
Final Order on this motion, furnish the United States
Attorney's Office, the United States Environmental Protection
Agency and the New York State Department of Environmental
Conservation with copies of a draft long-range plan and all
supporting documentation, including but not limited to all
plans, proposals, timetables, studies, reports,
specifications, contracts, designs, monitoring data,
blueprints, engineering drawings and any other data prepared
by the County's agents, officer, employees, experts,
independent contractors or consultants, relating to the
long-term solid waste plans required hereunder (collectively,
22) The United States shall select and retain a consultant,
at the County's expense, on terms and conditions acceptable to
the United States, for the purpose of evaluating the adequacy
of the County's Plans and any and all plans developed to
devise and implement long-term solid waste plans of all solid
waste in the County, including commercial waste and
construction and demolition waste as contemplated by Paragraph
V of the 1975 Decree and by this court.
23) Non-compliance with any of the scheduled milestone
events will be sanctioned by stipulated penalties. United
States v. City of Yonkers, 856 F.2d 444, 460 (2d Cir. 1988)
(within district judge's discretion to impose fines for
24) The parties will have 15 days from the date of the
Order, filed simultaneously herewith, to submit any proposed
amendments to these Findings and Conclusions.
The County is fined $1,000,000.00 for contempt of court and
$10,000.00 per day until compliance with this Order. The fines
take effect six months from the date of the court's Final
Order, unless the County has
purged itself of contempt, as set forth in the court's
original Findings of Fact and Conclusions of Law of June 14,
1990 as now amended.
The Government is directed to submit on 10 days notice to
the Defendant County a proposed Final Order in accordance with
the court's original Findings of Fact and Conclusions of Law
as now amended.