United States v. Marathon Battery Company

70 Civ. 4110 (S.D.N.Y. June 8, 1972)

A stipulated judgment in a civil action to enforce the Refuse Act and the New York Harbor Act requires the defendants — present and prior owners of the discharging plant — to dredge the Hudson River of 20 years accumulation of the toxic metal, cadmium, which resulted from their illegal discharges. The removal process is to be completed by September 30, 1972, and the dredged material is to be treated and disposed of in a manner approved by the Environmental Protection Agency.

Counsel for Plaintiff
Whitney North Seymour, Jr. U.S. Attorney
T. Gorman Reilly Asst. U.S. Attorney
U.S. Courthouse
New York, New York

Counsel for Defendants
J. Evans Atwell
Vinson, Elkins, Searls & Smith
21st Floor, First City National Bank Building
Houston, Texas 77002

Shearman & Sterling
53 Wall Street
New York, New York 10005

Lord, Day & Lord
Cunard Building
25 Broadway
New York, New York 10004

Thomas F. Harrison Asst. Attorney General
Office of the Attorney General
Albany, New York

Carter, Lidyard & Milburn
2 Wall Street
New York, New York 10005

[2 ELR 20402]

Bonsal, J.

FINAL JUDGMENT

Plaintiff, United States of America, having filed its complaint herein on September 25, 1970, naming Marathon Battery Company, Inc. ("Marathon") and M. L. Cassotta ("Cassotta") as defendants, and both Marathon and Cassotta having appeared, and a Partial Final Judgment with respect to the claim for relief set forth in paragraph (a) of the prayer for relief in the complaint having been entered by consent of each of the parties thereto on January 20, 1971, and an order amending the said Partial Final Judgment having been entered by consent of the parties thereto on January 10, 1972, and an answer with respect to the remaining claims for relief having been filed by Marathon and Cassotta on July 7, 1971, and a counterclaim against plaintiff as well as a third party complaint against Gould, Inc. ("Gould"), Clevite Corporation ("Clevite"), and Sonotone Corporation ("Sonotone") having been filed by Marathon on the same date, and Gould, Clevite and Sonotone having filed their answer to the third-party complaint on August 11, 1971, and the plaintiff having filed its answer to the counterclaim of Marathon on September 3, 1971, and the plaintiff having filed an amended complaint naming Marathon, Cassotta, Gould, Clevite, Sonotone, the State of New York ("the State") and Old Foundry Realty Corporation ("Old Foundry") as defendants on September 21, 1971, and Marathon and Cassotta having answered the amended complaint on October 15, 1971, and Marathon having realleged its counterclaim against plaintiff as well as its thirdparty complaint against Gould, Clevite and Sonotone on the same date, and Gould, Clevite and Sonotone having answered the amended complaint on October 15, 1971 and having asserted a counterclaim against the plaintiff on the same date, and the State having answered the amended complaint on October 18, 1971, and Old Foundry having answered the amended complaint on October 19, 1971, and Gould, Clevite and Sonotone having answered the realleged thirdparty complaint of Marathon on November 8, 1971, and the plaintiff having answered the counterclaim of Gould, Clevite and Sonotone on November 23, 1971, and each of the parties to this action by their respective attorneys having consented to the making and entry of this Final Judgment with respect to each of the claims for relief set forth in the amended complaint, the counterclaim of Marathon, the third party complaint of Marathon, and the counterclaim of Gould, Clevite and Sonotone, without trial or adjudication of any issue of fact or law herein, and without this Final Judgment constituting any evidence or admission by any party hereto with respect to any such issue, and the Court having considered the matter and being duly advised,

NOW, upon the consent of the parties hereto, it is hereby ORDERED, ADJUDGED AND DECREED as follows:

The entry of this Final Judgment in no way alters, modifies or rescinds the force and effect of the Partial Final Judgment previously entered herein on January 20, 1971, as amended on January 10, 1972, and in no way excuses or relieves the defendants Marathon and Cassotta from their obligations thereunder.

This Court has jurisdiction of the subject matter of this action and of the parties hereto. The amended complaint herein states a claim against defendants under Section 13 of the Rivers and Harbors Act (33 U.S.C. § 407) commonly known as the Refuse Act and under Section 1 of the New York Harbor Act (33 U.S.C. § 407) commonly known as the Refuse Act and under Section 1 of the New York Harbor Act (33 U.S.C. § 441).

III

The provisions of this Final Judgment applicable to defendants Marathon, Gould, Clevite and Sonotone shall also apply to each of their directors, officers, agents and employees acting for such defendants, their affiliates, subsidiaries, successors and assigns, and to all other persons in active concert or participation with said defendants who shall have received actual notice of this Final Judgment by personal service or otherwise.

Defendants Marathon, Gould, Clevite and Sonotone are permanently enjoined and directed to remove from the bottom and along the shore of Foundry Cove the deposits of cadmium which were heretofore discharged and deposited therein by Marathon and Sonotone as follows:

(a) by no later than September 30, 1972 remove all deposits of cadmium in excess of 900 parts per million from that part of Foundry Cove which is in the immediate vicinity of the Marathon outfall ("the Outfall Area"), said Outfall Area being depicted by crosshatch marks on the map annexed to this Final Judgment as Exhibit "A" and being more fully described as oval in shape, approximately 200 feet in length and 70 feet to 150 feet in width, subject to the tidal action of the Hudson River such that it is normally covered by water at high tide, and emptying by way of a channel into the main body of Foundry Cove; but, in no event shall said defendants be required to remove any deposits of cadmium from any part of the Outfall Area below a depth of 5 feet from the bottom surface thereof; provided further that in the event of any caveins or shifting of the bottom soil in the Outfall Area occasioned by the removal operation, defendants are relieved from the 5 feet requirement so long as the amount of bottom soil removed from any part of the Outfall Area is approximately equivalent to that which could have been removed from that part of the Outfall Area had defendants been able to remove deposits to a depth of 5 feet free from caveins or shifting in the bottom soil;

(b) by no later than September 30, 1972, remove all deposits of cadmium in excess of 900 parts per million from the bottom of and along the length of the channel which leads from the Outfall Area to the main body of Foundry Cove ("the Channel"), said Channel being depicted by slash marks on the map annexed to this Final Judgment as Exhibit "A", except that the requirements of this subparagraph will be deemed to be satisfied in the event that best efforts are used to remove as much of the cadmium therefrom as is economically, technically and ecologically feasible, and an affidavit to that effect is submitted to the Court by a disinterested and technically qualified engineer and/or a similarly qualified biologist; in determining the technological, economic and ecological feasibility of removing cadmium from the Channel, due consideration shall be given to any harm that could be caused to the Channel, the surrounding swamp and the acquatic and other life therein.

After removing the deposits of cadmium as required by Paragraph IV hereof, defendants Marathon, Gould, Clevite and Sonotone shall take such core samplings and make such laboratory tests as are necessary to show the concentrations of cadmium (in parts per million) remaining in the bottom of the Outfall Area and the Channel. For the purpose of this Final Judgment, the concentration of cadmium in any given sample shall be determined by the following method:

1. Each core sampling will be made with adevice which takes a volume of approximately 7/10ths liter of [2 ELR 20403] contiguous settled sediment for each single sampling. A 3 inch core tube shall be used and a 6 inch length of sediment core shall be taken with each sampling. This sediment volume specification is made to insure that the amount of metal determined as being present is representative of the metal content of that area.

2. Each core sample is thoroughly mixed and a representative sample (free of rocks) is taken, one which has a volume of at least 50 ml. If the sediment is sufficiently solid, it can be taken and expressed by a cylinderpiston arrangement; if fluid, a 10-minute settled volume measurement is adequate.

3. The sample is placed in a large excess of 1-2 M nitric acid with periodic agitation for 2 days to extract Cd and this solution is analyzed for Cd by standard atomic absorption spectrophotometric techniques.

4. The concentration of Cd in the sample will be reported as the milligrams of metal present in 1 liter of sediment volume (vol. ppm).

It shall be the responsibility of defendants Marathon, Gould, Clevite and Sonotone to obtain the necessary permits, rights of access, and permissions, including permits from local, state and federal authorities, to effect compliance with Paragraph IV hereof.

VII

The State and Old Foundry shall grant the defendants Marathon, Gould, Clevite and Sonotone reasonable access over and to their respective properties at and along Foundry Cove in order to allow the removal in a reasonable manner of any of the deposits of cadmium as required by Paragraph IV hereof, and both the State and Old Foundry waive any right or claim of title or interest in the cadmium, nickel, cobalt, earth or other matter so removed from their respective properties. In consideration of the foregoing, Old Foundry and Gould, Clevite, Sonotone and Marathon have entered into a separate indemnity agreement dated April 1972, and refer to said Agreement, a copy of which is annexed hereto as Exhibit "B", for the terms and conditions thereof.

VIII

Before undertaking treatment or other disposition of the dredged spoils generated by compliance with Paragraph IV above, defendants Gould, Clevite, Sonotone and Marathon shall submit to the Environmental Protection Agency ("EPA"), with a copy to the United States Attorney for the Southern District of New York, a detailed plan outlining such proposed treatment or disposition. Unless the EPA shall notify defendants Gould, Clevite, Sonotone and Marathon, in writing, within fourteen days of receipt of such plan, of the reasons why EPA disapproves such plan, then the aforesaid defendants shall undertake treatment or disposition of the dredged spoils in accordance with such plan. If EPA gives timely written notice of the reasons for disapproving the plan of the aforesaid defendants and if the parties are unable to agree on a mutually satisfactory plan within ten days after due notice is given, then any party may petition the Court, upon ten days written notice to all other parties, for an order directing the method of disposal. Until a method of treatment or disposal is agreed upon or approved by the Court, the aforesaid defendants shall not commence treating or disposing of the dredged spoils.

(a) Upon removal of the deposits of cadmium from the Outfall Area and the Channel as required by Paragraph IV hereof, but in no event later than October 15, 1972, defendants Marathon, Gould, Clevite and Sonotone shall submit either jointly or severally to the Court (5 copies to the plaintiff) a report, stating in detail the method(s) employed to remove the deposits, the total amount of dredged spoils removed, what disposition has been made of the removed deposits and dredged spoils, the results of the laboratory tests on all core samples taken pursuant to Paragraph V hereof, and any other steps taken in compliance with this Final Judgment;

(b) Within 45 days from the filing of the above described report, the United States Attorney shall file with the Court a statement indicating its satisfaction or nonsatisfaction with the activities of defendants Marathon, Gould, Clevite and Sonotone with the specific terms of this Final Judgment. A statement of satisfaction by the United States Attorney with respect to a specific provision of this Final Judgment shall be deemed to constitute full compliance therewith and will relieve the defendants Marathon, Gould, Clevite and Sonotone from any further obligation with respect to that provision of the Final Judgment.

(c) Within 20 days from the filing of a report indicating non satisfaction, the plaintiff shall move the Court o compel compliance with the provision of this Final Judgment involved.

For the purpose of insuring compliance with this Final Judgment, duly authorized representatives of the United States Attorney for the Southern District of New York, the United States Army Corps of Engineers, and the United States Environmental Protection Agency shall be permitted, subject to any legally recognized privilege:

(a) access to inspect the premises of defendant Marathon and any premises to which defendant Marathon has a right of access, for the purpose of inspecting the operations being taken to remove the deposits of cadmium from Foundry Cove and the disposition of said deposits and to take samples of any bottom area of Foundry Cove and of any deposits already removed therefrom;

(b) subject to the reasonable convenience of defendants Marathon, Gould, Clevite and Sonotone but without restraint or interference from them, to interview officers, directors, agents or employees of the aforesaid defendants, who may have counsel present, regarding any such matters.

The court retains jurisdiction over the parties and the subject matter of this action for the purposes of (a) making such other and further orders as may be necessary to carry out the terms hereof, and (b) upon a proper showing by the plaintiff that even after compliance with Paragraph IV hereof the deposited metals of cadmium, nickel and cobalt in the main body of Foundry Cove are still of substantial harm to man and/or the environment, granting any application by the plaintiff to remove said deposits of cadmium, nickel and cobalt from the main body of Foundry Cove, provided that in the event any such application by plaintiff is granted the total liability of defendants Marathon, Gould, Clevite and Sonotone for the removal of any such deposits from the main body of Foundry Cove shall be limited to a total joint expenditure not to exceed $100,000.00 of the actual cost of removal.

XII

Except as hereinabove provided, the United States of America hereby releases and forever discharges Gould, Clevite, Sonotone, Marathon and M. L. Cassotta, their heirs, executors and administrators, successors and assigns from all manner of civil actions, causes of action, suits, controversies, damages, claims and demands whatsoever, in law, in admiralty or in equity, arising out of or in any way related to Gould's, Clevite's, Sonotone's and Marathon's discharge of industrial waste from the Cold Spring Battery Plant which the United States had, now has or may acquire from the period January 1, 1950 to and including the day on which the within Final Judgment is entered in the office of the Clerk of the United States District Court for the Southern District of New York.

XIII

Gould, Clevite and Sonotone jointly and severally shall indemnify and hold Marathon harmless from any costs, losses or expenses of complying with this Final Judgment including any further orders issued pursuant to Paraph XI.

XIV

Except for the relief granted in Paragraph XIII above, Marathon's cross action against Gould, Clevite and Sonotone is [2 ELR 20404] dismissed without prejudice as to any claim or cause of action which Marathon may now or hereafter assert against Gould, Clevite and Sonotone, or any of them, for breaches of warranties and representations contained in the agreement between Gould, Clevite and Sonotone and Business Funds, Inc. (corporate predecessor to Marathon), dated July 28, 1969, including but not limited to any claims or cause of action in said crossaction for which relief is not granted in Paragraph XIII above.^*

* [Ed. Note — The signatures of the parties and all Exhibits are deleted.]