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United States v. Hooker Chems. & Plastics Corp.

Citation: 12 ELR 20701
No. No. CIV-79-989 C, 540 F. Supp. 1067/17 ERC 1808/(W.D.N.Y., 04/30/1982) Settlement agreement approved for Hyde Park landfill

The court approves a proposed settlement establishing procedures and standards governing the clean up of the chemical-wastefilled Hyde Park Landfill near Niagara, New York. The court first notes that its review of the proposed settlement is limited to a determination of whether it is fair and adequate and not unlawful, unreasonable, or against public policy. In cases arising under environmental statutes, the court must also consider whether the proposed settlement protects the public interest and is consistent with the dictates of Congress. In this case, the court's concern is to ensure that the agreement protects public health and the environment to the greatest extent feasible under existing technology. The court finds that, given the uncertainty as to whether toxic chemicals from the landfill may have migrated in the groundwater, the settlement reasonably provides first for extensive groundwater monitoring studies. Although the document is not specific as to corrective measures to be taken in every contingency, it adequately protects the public health and the environment, addressing both the threat to worker health and the danger of groundwater contamination. It requires the use of "Requisite Remedial Technology," a new decision-making standard defined in the agreement, which will ensure that any public health threat will be countered with the most advanced practical clean up measures available. By providing for continuing oversight of defendant's compliance by the government agencies and the court, the document ensures that its necessarily general provisions will not be abused. The stated goal of the settlement to protect against "endangerment to human health and the environment" provides these overseers with authority to require more effective clean up measures should actions specified in the agreement prove not to be completely effective. The court concludes that the decree offers at least as much protection to the public interest as would any alternative likely to result from litigation of the matter and that it is the product of good faith bargaining among the parties and thus must be approved. The court next grants the motions of one individual and two citizens' organizations to intervene as of right under the citizen suit provision of the Federal Water Pollution Control Act and Rule 24(a)(1) of the Federal Rules of Civil Procedure. They have standing to intervene since they have established that their substantial interests may be adversely affected by the settlement. The petitions for intervention were not untimely since their purpose was to challenge the provisions of the proposed decree and they were filed two months after it was issued. However, because intervenors had adequate opportunities to object to the proposed decree before the court approved it, the court rules that their objections may not block the settlement. Finally, the court rules that the fact that a government witness and member of the government negotiating team had falsified his credentials does not required rejection of the agreement because his testimony was only cumulative and corroborative of other qualified witnesses and the negotiating team had sufficient other scientific expertise that its conclusions were not tainted.

[The settlement agreement approved by the court is reprinted at the end of the opinion — Ed.]

Counsel for Plaintiffs
Michael S. Elder; Carol E. Dinkins, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5252

Roger P. Williams, U.S. Attorney; Jack S. Penca
502 U.S. Chtse., Buffalo NY 14202
(716) 846-4811

Robert Abrams, Attorney General; Marcia J. Cleveland, Lorelei Joy Borland, Mary Ellen Burns
Two World Trade Ctr., New York NY 10047
(212) 488-7490

William T. Walsh
Office of Waste Programs Enforcement
Environmental Protection Agency, Washington DC 20460
(202) 382-3107

Counsel for Defendants
Thomas H. Truitt, Keith S. Watson
Wald, Harkrader & Ross
1300 19th St. NW, Washington DC 20036
(202) 828-1200

Robert Paul Merino
P.O. Box 187, Niagara Falls NY 14301
(716) 282-2400