Town of Greenwich v. Department of Transportation

No. B-76-193 (D. Conn. November 7, 1979; January 21, 1980)

The court grants plaintiffs' motion for partial summary judgment in a suit charging defendants with violating an Environmental Protection Agency (EPA) compliance order and appoints an administrator to oversee closure of the antiquated Cos Cob Power Plant by Dec. 31, 1980 in accordance with an amended abatement schedule. The court finds that the Connecticut Department of Transportation has admitted that it is "running" the plant and the commuter railroad line that it powers. There is, moreover, no dispute that defendants are in violation of the EPA order and the applicable air pollution control regulations. Ruling that continued "slippage" in the schedule for completing reelectrification of the railroad and closure of the plant is unacceptable in light of the potential for further air pollution and jeopardy to the continuation of commuter rail service, the court determines that judicial supervision, control, and management of the compliance process are needed. As an exercise of its broad remedial power, the court appoints an administrator vested with the powers necessary to achieve expeditious compliance with the EPA order.

Counsel for Plaintiff
Haynes N. Johnson
Parmelee, Johnson, Bollinger & Bramblett
460 Summer St., Stamford CT 06901
(203) 327-2650

Counsel for Defendants
Bryan E. O'Neill, Ass't Attorney General
State Office Bldg., Rm. 147, Hartford CT 06115
(203) 566-2090

[10 ELR 20179]

Daly, J.:

Partial Ruling on Plaintiff's Motion for Partial Summary Judgment

Plaintiffs seek partial summary judgment against the Connecticut Department of Transportation (CDOT) and its Commissioner for

(1) Violation by CDOT of the Order of The Environmental Protection Agency (EPA) of January 7, 1976, as amended, relating to, inter alia, steps to be taken by CDOT to permit expeditious closing of the Cos Cob Power Plant.

(2) Violation of the following air pollution regulations of EPA:

(a) § 19-508-18(a)(1) relating to opacity of emissions;

(b) § 19-508-18(d) relating to emissions of particulate matter;

(3) Violation of the EPA primary ambient air standards for suspended particulate matter, § 19-508-24(f) (adopted by EPA 40 Fed. Regis. 3279-80).

(P. motion for summary judgment June 8, 1979 at 1-2.)

There is no dispute that CDOT has failed to comply with the EPA order of January 7, 1976, or that CDOT has violated the EPA air pollution regulations mentioned above. The only issue in dispute is whether CDOT is "'running' the commuter railroad line or the Cos Cob electrical plant that is the power source for that commuter railroad line, in any meaningful sense . . . ." (D. Memo. in opposition to P. motion for summary judgment June 26, 1979 at 1.)

Standard for Summary Judgment

On a motion for summary judgment pursuant to FED. R. CIV. P. 56 the Second Circuit requires the trier of fact to determine that "the moving party . . . [show] that there is no genuine issue of material fact and the he is entitled to judgment as a matter of law." Robertson v. Seidman & Seidman, No. 78-7278, slip op. at 4403 (2d Cir. Aug. 29, 1979). In addition "the inferences to be drawn from the underlying facts [must be] in the light most favorable to the [non-movant] . . . [and] [w]hen conflicting inferences can be drawn from the facts, . . . summary judgment is inappropriate." Id. at 4407, 4404.

On June 26, 1979 defendant responded to plaintiff's request for admissions pursuant to FED. R. CIV. P. 36 dated June 6, 1979. Defendant specifically admitted to D.3.(b) which states that "[p]rior to issuing said Order, EPA found that the contractual relationship between CDOT [CTA] and ConRail [Penn Central] made it clear that: '. . . both are principals whose actions directly affect the operation of the Cos Cob plant.' (Interim Ex. 2, p. 3)." (D. answers to P. request for admissions June 26, 1979 at 2.) Defendant failed to respond to plaintiff's request to admit D.4.(b) & (c) which state "(b) that [CDOT] has and has had its own consultant inspect and report on the plant on a regular basis . . . and (c) that [CDOT] meets on a monthly basis with personnel of ConRail and others to make decisions as to details of operation of the railroad, including the power plant." (P. request to admit June 6, 1979 at 9.)

FED. R. CIV. P. 36(a) requires each matter for which an admission is requested to be answered by a denial or detailed reasons why the answering party cannot truthfully admit or deny the matter. Failure to respond results in an admission which shall be deemed conclusively established under subsection (b).

Thus, while a party may respond in any one of three ways, (1) file an admission, (2) file a specific denial, or (3) file a statement setting forth why he cannot truthfully admit or deny the requests, nevertheless he must take affirmative action if he wants to avoid the consequences of failing to respond in accordance with the Rule.

20 ALR3d 756, 759 (1968).

The courts have held that the clear import of Rule 36 is that failure to respond to a request to admit results in having the party upon whom the request was made be deemed to have admitted the request as true. Chess Music, Inc. v. Tadych, 467 F. Supp. 819, 820 (E.D. Wisconsin 1979); Comm'rs of Hwys. of Towns of Annawan et al. v. U.S., 466 F. Supp. 745, 748 n.1 (N.D. Illinois, E.D. 1979). On the basis of defendant's admissions and the arguments of counsel on November 6, 1979 this Court finds that CDOT participated in the operation and financing of the commuter railroad line and the Cos Cob electrical plant in material part so as to be "running" these two facilities. Therefore, there is no genuine issue of material fact to be resolved and the plaintiff is entitled to partial summary judgment as a matter of law.

It is so ORDERED.

Order Appointing Administrator

On July 8, 1976 and September 21, 1976 plaintiffs' respectively filed lawsuits seeking to restrain the defendants from repeated and continuing violations of the United States Environmental Protection Agency (EPA) regulations, promulgated pursuant to The Clean Air Act, 42 U.S.C. §§ 7401-7642,¹ and an EPA Order issued on January 7, 1976, as amended July 21, 1976, requiring, inter alia, that the Cos Cob power generating facility terminate operations by September 15, 1978, in order to achieve compliance with applicable regulations, and the established interim timetable to ensure compliance.

The plaintiffs in B-76-193 seek the appointment of an Administrator following this Court's granting of plaintiff's motion for summary judgment on November 7, 1979.²

The plaintiff in B-76-282 seeks the appointment of an Administrator to effect compliance with the work schedule set forth in Schedule B of the consent judgment filed in its action on May 2, 1979 which amended the September 15, 1978 shut down date to extend the closing of the Cos Cob electric generating plant to December 31, 1980.

Findings of Fact

The Cos Cob Power Plant is used to supply electricity to operate the commuting railroad to New York. It is antiquated and subject to temporary and possibly permanent failure. The plant is operated under the terms of the New Haven Suburban Passenger Train Service Agreement of October 27, 1970, between the Connecticut Transportation Authority, now succeeded by the Connecticut Department of Transportation (CDOT), and the Penn Central Transportation Company, now succeeded by the Consolidated Rail Corporation (ConRail).

The Cos Cob Power Plant, for more than ten years, has been charged by the Town of Greenwich and its residents with polluting the air in the surrounding area with substantial quantities of particulate matter, fly ash, and sulfur. This pollution, it is claimed, will not entirely cease until the Power Plant is closed.

The United States Environmental Protection Agency (EPA) adopted regulations relating to the air polluting emissions from the Cos Cob Power Plant. See note 1, supra. These regulations were held valid in Blanchette v. U.S. Environmental P.A., 551 F.2d 906 [7 ELR 20282] (2d Cir. 1977). Those portions of the regulations dealing with opacity of emissions, emission of particulate matter and emission of sulfur are as follows:

(1) § 19-508-18(a)(1) on opacity of emissions:

No person shall cause or permit the emission of visible [10 ELR 20180] air pollutants of a shade or density equal to or darker than that designated as No. 1 on the Ringelmann chart of 20 percent opacity.

(2) § 19-508-18(d) on particulate matter:

No person shall cause or permit the emission from fuel-burning equipment of particulate matter in excess of 0.20 pounds per million BTU . . . of heat input.

(3) § 19-508-19(a)(2)(i) on sulfur emissions:

No person shall use or burn fuel which contains sulfur in excess of one-half or one percent (0.5 percent) by weight (Dry Basis).

These regulations form part of the State Implementation Plan for ambient air quality required by The Clean Air Act, 42 U.S.C. § 7410, formerly § 1857c-5. The history of the Implementation Plan may be found in Blanchette, 551 F.2d at 908.

On January 7, 1976 after notice to, inter alia, CDOT and a hearing, the Regional Administrator of EPA for Region I issued findings and an Order against CDOT and others, jointly and severally, relative to emissions from the Cos Cob Power Plant. The Regional Administrator found that CDOT was operating the Cos Cob Power Plant in violation of those regulations cited above. Said findings and subsequent Order were not appealed by CDOT and remain in full force and effect.³ CDOT has admitted said violations and acknowledges probable continuing violations until the Cos Cob Plant is shut down.⁴

The EPA Order of January 7, 1976, as amended July 21, 1976, ordered CDOT and ConRail to do, inter alia, the following:

(a) Not later than February 1, 1976, CDOT and ConRail shall enter into a force account agreement for Phase I-1, I-2, I-3 and I-4 of the signal conversion work and commence on-site work on signal conversion. (P4).

(b) Not later than May 1, 1976, CDOT and ConRail shall submit all remaining necessary funding requests for the signal conversion work to the Urban Mass Transit Authority for approval. (P5).

(c) CDOT and ConRail shall complete work on the signal conversion of the main line from Greenwich through New Haven, including the New Canaan Branch, designated on the Construction Schedule as "j" through "ii," according to the schedule at forth below:

(i) 9% by June 30, 1976

(ii) 27% by December 31, 1976

(iii) 56% by June 30, 1977

(iv) 82% by December 31, 1977

(v) 100% by August 15, 1978 (P6(a).)

(d) Not later than September 15, 1977, CDOT and ConRail shall:

(i) Cut over to 60 hertz traction power on the Woodlawn to New Rochelle segment designated on the Construction Schedule as Major Work Items a. through d., and (ii) cease providing traction power from the Cos Cob Plant to operate this segment of the railroad. (P7(a).)

(e) Not later than January 15, 1978, CDOT and ConRail shall:

(i) Cut over to 60 hertz traction power for the East Norwalk to New Haven segment designated on the Construction Schedule as Major Work Items t. through hh; (ii) cease providing power for that segment from the Cos Cob Plant; and (iii) operate boiler units 902 and 903 individually only and not at the same time. (P7(b).)

(f) Not later than August 15, 1978, CDOT and ConRail shall:

(i) Cut over to 60 hertz traction power for the East Norwalk to Cos Cob segment designated on the Construction Schedule as Major Work Item m. through s., and (ii) cease providing power for that segment from the Cos Cob Plant. (P7(c), as amended.)

(g) Not later than September 15, 1978, CDOT and ConRail shall cease operation of the Cos Cob Plant. (P7(d), as amended.)

(h) Until all operations at the Cos Cob Plant cease, CDOT and ConRail shall:

(i) Limit visible emissions

(a) from the stack ducted to units 902 and 903 to forty percent (40%) opacity; and

(b) from the stack ducted to unit 904 to twenty percent (20%) opacity, with not greater than forty percent (40%) opacity for not more than five minutes in any sixty minutes. (P8(a).)

Compliance with the EPA Order was not made subject to receipt of federal funding.

The defendants concede that there is no dispute that CDOT has failed to comply with the EPA Order of January 7, 1976, as amended July 21, 1976, or that CDOT has violated the EPA air pollution regulations mentioned above. CDOT has been participating in the operation, decision-making, and financing of the commuter railroadline and the Cos Cob electrical plant in material part so as to be running those two facilities. See note 3, supra.

By the terms of the EPA Order defendants were to have taken steps to re-electrify the railroad so that, in thirty-two months (by September 1978), electricity could be purchased elsewhere and the Cos Cob Power Plant closed, permanently abating the air pollution and protecting continuation of the commuter service against possible failure of the plant. Contrary to the EPA Order, defendants did not commence the re-electrification project until April 1978.

In May 1978 defendants supplied this Court with a month-by-month "Work Schedule" which provided that the electrification would be completed by December 1980, twenty-seven months after the date required by the EPA Order. In November 1978 defendants signed a Consent Judgment in B-76-282, incorporating the "Work Schedule" as Exhibit B thereto. The Consent Judgment required compliance with the "Work Schedule" and completion of the conversion project by December 1980. After due publication in the Federal Register, 28 C.F.R. § 50.7, the Consent Judgment was entered by this Court on May 2, 1979.

Defendants have failed to meet the scheduled dates required by the "Work Schedule" in each and every month subsequent to the entry of the Consent Judgment and have advised the Court that they will be unable to meet the December 1980 completion date for converting the project and closing the Cos Cob Power Plant. On December 18, 1979 defendants submitted to this Court a "New Haven-Line Revised 60 Hz Power Conversion Schedule" which looks toward July 1981 for completion. This is seven months beyond the completion date agreed to in the consent decree entered on May 2, 1979.

By defendants' own admission, in order to satisfy the July 1981 completion date, work at three substations must be deferred and "Phase I" of the conversion project, which was to be completed six months prior to the final completion of the entire project,⁵ will be completed at the same time as the rest of the project. [10 ELR 20181] By not completing the additional work at the three substations the reliability of the system may be affected and possibly cause an additional four months delay.

Out of a total ninety-eight items to be completed over a twenty month period, according to the revised schedule, fifty-four are marked with an asterisk. The defendants define the significance of as asterisk beside an item as meaning it is critical and must be completed on the date specified to avoid further delay in the schedule. In effect, over fifty-five percent of all work to be done to complete the project by July 1981 is critical and delay in any one item could set back the completion date.

The present system for meeting critical dates on the project is not working. It is likely that unless some action is taken the pattern of "slippage" will continue, seriously jeopardizing a foreseeable completion date. Such delay is unacceptable in light of the potential for further air pollution and jeopardy to the continuation of commuter service to New York on the New Haven Division Line.

In view of the continued "slippage" in converting the electrification system, irrespective of the existence of the Consent Judgment requiring conversion on a specific schedule, court supervision, control, and management are needed. The failure of the defendants to comply with existing judgments and orders warrants the relief requested by the plaintiffs. A court appointed Administrator will be selected, not as an indicia of bad faith or incompetency, to secure compliance with the law and the judgment of this Court. The authority of this Court to exercise such broad remedial power is well articulated by Judge Feikens in United States v. Detroit, 476 F. Supp. 512 (E.D. Michigan 1979), and cases cited therein.

Upon consideration of the foregoing, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED:

1. That George J. Conklin, of North Haven, Connecticut be and he hereby is appointed as Administrator to perform all acts required to be performed by defendants Connecticut Department of Transportation (CDOT) and Consolidated Rail Corporation (ConRail) for the purposes of carrying out the order of the United States Environmental Protection Agency, dated January 7, 1976, directed to permanently closing the Cos Cob Power Plant and the obligations of the defendants under the Consent Judgment entered by this Court on May 2, 1979.

2.The Administrator is responsible solely to this Court and is vested with the power and authority provided under Rule 70 of the Federal Rules of Civil Procedure to perform all acts he deems necessary to achieve expeditious compliance with:

(a) Said EPA Order;

(b) The matters set forth in the "Signal Control and Traction Conversion Schedule," identified as Exhibit B attached to the Consent Judgment of May 2, 1979 in B-76-282 and also made part of the Consent Order of June 20, 1979 against defendant ConRail in B-76-193; and

(c) The matters set forth in the "New Haven Line Revised 60 Hz Power Conversion Schedule" filed by defendants on December 18, 1979; the foregoing hereinafter being referred to as the "Conversion Project."

3. The Administrator shall forthwith procure the services of those persons and/or organizations deemed necessary by him to carry out the conversion project. Said persons or organizations shall be responsible solely to the Administrator. To this end the Administrator may solicit the advice of the parties of this action.

4. The Administrator shall have full power to manage, control, and deal with all items, assets, properties, contracts, and other matters associated with the conversion project and shall have the authority required or necessary for the complete management and control of the conversion project, including but not limited to:

(a) The supervision of all employees of defendants associated with the conversion project, including removal of employees from the conversion project and/or hiring additional employees;

(b) Entering into and performance of existing and future contracts deemed necessary by him for the conversion project. Said contracts shall not be subject to competitive bidding if, in the judgment of the Administrator, such action would prevent delay in the conversion project and fair and reasonable contracts can be entered into;

(c) The hiring of all such special consultants, contractors, engineering firms or counsel which the Administrator deems necessary;

(d) The borrowing of such funds and the pledging of security of defendants as he deems necessary to carry out his duties relating to the conversion project;

(e) Preparing, filing, and processing all applications for Federal funds, or otherFederal approvals; and

(f) Acting without approvals or other consents or actions of the Urban Mass Transportation Agency (UMTA) in the event of delay in required actions by UMTA and/or when in the judgment of the Administrator the same might unduly delay or impede prompt and expeditious completion of the conversion project.

5. The Administrator shall initially make a full evaluation of the current status of the conversion project and report his findings to this Court.

6. All costs and expenses of carrying out this Order, including the fees of the Administrator, shall be submitted to this Court for approval and, except for those which may be paid by UMTA, shall be paid by defendants.

7. Defendants, their officers, agents, servants and employees, and all other persons in active concert or participation, are enjoined from failing to immediately comply with this Order and from interfering in any manner, or from failing to cooperate either directly or indirectly, with the Administrator in the performance of his functions and duties.

8. This appointment shall be for the period necessary to complete the conversion project unless:

(a) The Administrator recommends termination of this Order as no longer necessary, or modification thereof, and said termination or mmodification is accepted by this Court;

(b) The Administrator requests to be relieved and such request is approved by this Court; and

9. (a) The Administrator may at any time apply to this Court for instructions and/or modification of this Order;

(b) The Administrator may seek instructions as to whether funds should be expended for a particular purpose, ex parte, upon application to his Court;

(c) Any party may, for good cause, at any time apply to this Court for modification or termination of this Order or such other relief as may be appropriate.

10. This Court retains jurisdiction.

It is SO ORDERED.

1. The applicable regulations may be found at 40 C.F.R. §§ 52.377(b), 52.380 (1976), effective June 30, 1975, 40 Fed. Reg. 23279-80 (1975). 42 U.S.C. §§ 7401-7642 was the result of a complete revision of the Clean Air Act, July 14, 1955, c. 360, 69 Stat. 322, on August 7, 1977. See 91 Stat. 685. The Act was formerly codified at 42 U.S.C. §§ 1857-1858a.

2. The motion for summary judgment and the requested relief by the plaintiffs in B-76-193 only applies to the Department of Transportation of the State of Connecticut and its Commissioner. The relief sought by the plaintiff in B-76-282 includes the Consolidated Rail Corporation in addition to the Connecticut Department of Transportation and its Commissioner.

3. This Court found in its ruling of November 7, 1979 that "[t]here [was] no dispute that CDOT [had] violated the EPA air pollution regulations . . . ." The only issue in dispute for purposes of the summary judgment motion was whether CDOT was "running" the commuter railroad line or the Cos Cob electrical plant in any meaningful sense. This Court held that "CDOT participated in the operation and financing of the commuter railroad line and the Cos Cob electrical plant in material part so as to be 'running' [those] two facilities." Town of Greenwich, Connectricut et al. v. Department of Transportation of the State of Connecticut et al., Civil No. B-76-193, slip op. at 2, 4 (D. Conn. Nov. 7, 1979).

4. See letter from CDOT to EPA (August 15, 1975): "[CDOT] . . . acknowledges that it may continue to be in violation of all three of the above mentioned regulations until such time as the plant is shut down."

5. Early completion of "Phase I" would have permitted purchase of power from elsewhere and allowed early partial shutdown of the power plant.