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2 ELR 20463 | Environmental Law Reporter | copyright © 1972 | All rights reserved United States v. Michaelian72 Civ. 1964 (S.D.N.Y. June 6, 1972)Pursuant to the Environmental Protection Agency Report of April 17, 1972, Westchester County, New York, is ordered to take affirmative steps to protect the Hudson River from pollution emanating from the County's garbage dump. The preliminary restraining order issued here requires the County to build a system of dikes to end leachate pollution, and to consult with experts on methods for reducing garbage pollution by considering alternate dumping sites and by examining methods for recycling. In addition, Westchester County is required to do the following to protect the Hudson River during the pendency of he ligitation: (i) Cover the garbage dump with a satisfactory cover; (ii) Spread and compact the garbage according to the modern techniques; (iii) Construct an all-weather access road to the dumping faces, and unload garbage in a restricted working area; (iv) By July 26, 1972, cease accepting industrial liquid wastes until the County has provided adequate facilities for liquid wastes, and implement procedures for identifying and evaluating all industrial wastes; (v) Clean out the garbage in the tidal marshes and stream adjacent to the dump, and retain qualified personnel to study the effects on the Hudson of the present dump and any extension into new areas; (vi) Regain a consultant to construct a dike to contain the leachate pollution; (vii) Install fencing and increase the quality of the garbage-handling equipment; and (viii) Retain consultants to study alternate sites and recycling possibilities. Counsel for Plaintiff Counsel for Defendants Paul R. Coughlin Corporate Attorney Marvin E. Frankel, J. This action by the United States concerns the suddenly awesome problems of garbage disposal. The setting is a Westchester County garbage dump at Croton Point on the Hudson River. The United States sues the County, two of its officials and the State's Environmental Facilities Corporation under the so-called Refuse Act, 33 U.S.C. § 407, to restrain the discharge of leachate into the Hudson River, to end alleged pollution of tidal streams and other areas around Croton Point, and to compel further measures said to be physically necessary and [2 ELR 20464] legally compulsory for ending or mitigating the noxious discharges and deposits described in the complaint. With the complaint plaintiff served a motion for a preliminary injunction, which is now before the court. At the initial hearing of the motion the court made the obvious point that all-out adversary encounters between federal and state officials, leading to "victories" and "defeats" in court, might not lead necessarily to the most salutary resolution of complex environmental problems. Responding constructively to this observation, counsel for the several governmental parties met and sought agreement upon interim arrangements for dealing with the most pressing aspects of the refuse problems. The thought was that an agreed set of temporary measures, leaving some decent period for work toward longer-range solutions, might come closer than a standard court order to furthering what should be, after all, essentially shared objectives. Despite that cheerful prospect, initial negotiations for temporary consent arrangements were not wholly successful, and the parties came to court on May 27, 1972, for an adjudication upon the outstanding differences. At the session of May 27, the proceedings took another gratifying turn, though this was not to be quite the last turn of all. Meeting together at first, without judicial intrusion, counsel discovered a far larger area of agreement than they had perceived earlier. Two hours or so of such discussions produced agreement on all but a few aspects of an order proposed by plaintiff. At that point, the hearing proceeded upon the record, with the court undertaking point by point to resolve the limited matters still open. As a result of this final hearing (more in the nature of discussion than argument), it became clear that (a) there were no triable issues of fact on the pending motions, (b) there were no legal issues of any consequence either, and (c) the problems of research and financing, probably the crux of the case, were subject to largely undisputed ordering for purposes of preliminary disposition. It appeared, in short, that the pending motion for a temporary injunction was almost totally susceptible of resolution on stipulated terms, at least as between the County and the United States. This was not true, however, for defendant Environmental Facilities Corporation, which had made a motion to dismiss and wished to preserve its position that it was not properly here as a defendant at all.* Having regard to that problem, and for other sufficient reasons, while we proceeded to dispose of the small number of unsettled points almost entirely by agreement, the Westchester County Attorney insisted that "the whole thing [be] included in an order rather than [a] stipulation." The day's business was completed on that footing; the County Attorney did not formally "stipulate," but expressed the view for his clients that the terms resulting from the detailed exchange were ones the County "can live with" for the transitional period in question. To make the living easier for the affected summer months, counsel and the court agreed that the undersigned should retain jurisdiction for the purpose of resolving any disputes under the order. The self-congratulatory air of consensus on which that session ended did not survive in 100% purity. In lieu of the joint order the court had been led to expect, two versions have been submitted. The divergences are for the most part retractions by the County of things consented to on May 27. In some instances, however, the County properly corrects details in the version tendered by the United States Attorney. Without dwelling further upon the accountability for discrepancies, the court has reviewed each detail of the proposed orders. Only one such item merits specific comment. Provisions in the order submitted by the United States relating to the designing of a leachate treatment system, para. (f) (i) and (ii), were the subject of some considerable attention on May 27. The clauses now submitted by the United States Attorney record precisely the detailed and agreed resolutions resulting from those efforts. Now, the County Attorney's letter reports he is "unanimously advised" that the scientific or engineering premises of these provisions are fallacious. This is not a matter, however, for revision by last-minute letters to the court. If the asserted fallacy or fallacies are as certain and uniformly attested as counsel says, their existence should be demonstrable by competent submissions, in affidavits of otherwise, from knowledgeable experts. Such submissions, if received, may require reconsideration of the affected paragraphs. As of now, however, the detailed requirements deliberately fashioned, and accepted will not be altered. And the burden of persuading that alterations are required will rest, of course, upon the party proposing them. In other respects, the order as signed sufficiently reflects the court's rulings on the few subjects of revived dispute. While court memoranda and opinions serve characteristically to memorialize conflicts, this may not be the most apposite note to end on. Our meeting of May 27 concluded with the court's expressions of appreciation and respectful commendations for the extensive contributions of counsel to a broadly constructive working arrangement. Those views reflect the primary ones the court would wish to record. While the document being signed today is formally an "order," it appears to reflect for the most part an encouraging instance of intergovernmental cooperation. The court sits, to be sure, for participation in less harmonious relationships. It may be hoped, nevertheless, that these initial steps will set the pattern for this difficult and delicate lawsuit. WHEREAS, the Plaintiff United States of America moved this Court on May 23, 1972 for an Order pursuant to Rule 65 of the Federal Rules of Civil Procedure preliminarily restraining defendants from (1) discharging refuse into the Hudson River, and its tidal marshes and streams (2) from excavating additional areas at Croton Point or depositing garbage in any new excavation or new area until the Hudson River is protected from contamination from such excavation or deposit, and requiring defendants (3) to remove refuse from the remaining streams and marshes at Croton Point, and (4) to take appropriate steps to reduce the adverse impact of the Croton Point garbage dump on the Hudson River, and The Motion for a preliminary injunction having come on for oral argument before this Court on May 23 and 27, 1972, and the plaintiff, United States of America having appeared by its Attorney, Whitney North Seymour, Jr., United States Attorney for the Southern District of New York by Assistant United States Attorneys, Daniel Riesel and Ross Sandler, and the defendants Edwin G. Michaelian, Charles E. Pound and the County of Westchester (hereafter collectively referred to as the "County") by the County Attorney, John J. S. Mead, Esquire, and defendant New York State Environmental Facilities Corporation by the Corporation Attorney, Paul R. Coughlin, Sr. Esquire, and The defendants having opposed the motion for a preliminary injunction and in addition the defendant County having made application for a three month adjournment in order to further evaluate certain aspects of plaintiff's motion for a preliminary injunction, and having read the affidavits and memorandum submitted by the parties, and The parties having agreed that there are no material issues of fact before the Court, and the Court having rendered an opinion at a hearing held on May 27, 1972 encompassing its findings of fact and conclusions of law, and such opinion having been duly recorded in the stenographic transcript of the proceedings of May 27, 1972, NOW on motion of Whitney North Seymour, Jr. United States Attorney for the Southern District of New York, it is hereby ORDERED that plaintiff's motion for a preliminary injunction is adjourned to a day convenient to the Court and the parties during the week of September 18, 1972, and it is ORDERED that the County, its successors and assigns shall take the following steps to implement the Environmental Protection Agency Report of April 17, 1972. (i) All surface areas of the existing dump that are at permanent grade, or which have not received deposits of garbage for two weeks or more, and do not have a compacted cover of 24 inches of soil shall receive a compacted cover of 24 inches of suitable soil. All such [2 ELR 20465] areas shall receive such final covering material by July 26, 1972; (ii) An initial daily cover of at least 6 inches of compacted soil shall be placed on deposits of garbage; (iii) Areas not used for one to two weeks, and not at final grade, will receive an intermediate layer of compacted soil of not less than 12 inches; (iv) All areas whether at final grade or not will be graded, in an acceptable engineering manner, to promote proper drainage and eliminate ponding; (v) Cover material shall be a soil or other material of medium to moderately coars texture of such a character that it compacts well, does not crack upon drying, and is free of decomposable materials; (vi) Suitable amounts of cover material to cover seven (7) days of operation will be stockpiled contiguous to, or on, the site of the sanitary landfill at all times. (b) Compaction of Solid Wastes The County shall immediately institute operational procedures whereby all wastes will be spread and compacted in shallow layers, not exceeding depth of two (2) feet and repeated passages of compaction equipment over waste deposited on the working face will be utilized. (i) The County shall complete construction of an all weather access road to the dumping faces by June 9, 1972; (ii) The County will institute the ramp or limited area method of unloading prior to June 26, 1972; (iii) Commencing June 5, 1972, unloading areas will be specified and restricted to the near vicinity of the working face; (iv) The size of the working face will be confined to an area no greater than can be easily compacted and covered daily with the available equipment. The width of the working face should be as narrow as possible consistent with available compacting equipment; (v) Systematic filling and dumping practices will be employed, thus allowing maintenance of a surface slope to accelerate runoff. (i) Liquid Wastes — By July 26, 1972, the County shall cease accepting any industrial liquid waste until such time as the County has designed and constructed an adequate installation for the disposal of liquid industrial wastes. Both the design and construction of such a facility must receive prior approval from the United States. In addition, the County must adopt and put into practice under the supervision of trained and competent personnel such procedures for identifying and evaluating liquid industrial wastes as to fully protect the Hudson River and surrounding environment. Such procedures must be approved by the United States; (ii) Other Industrial Wastes — By July 26, 1972, the County shall cease accepting all industrial wastes until such time as the County has adopted and put into practice procedures for the identification and evaluation of industrial wastes under the supervision of trained and competent personnel. Such procedures must receive the prior approval of the United States prior to reinstituting the practice of accepting industrial waste at Croton Point; (e) Protection of River and Marsh (i) All refuse matter will be removed from the remaining tidal streams and marsh prior to July 1, 1972. This work will be accomplished in such a manner as to avoid further damage to the Marsh, and shall be supervised by the Department of Environmental Conservation or comparable competent scientific authority; (ii) The County shall retain the Boyce Thompson Institute or a similar scientific institution acceptable to the parties to conduct a comprehensive study of remaining marsh and tidal stream area to determine (a) effect of the garbage dump on life in the marsh including lower trophic levels of the marsh ecosystem, and (b) the scientific and practical feasibility of restoring and recovering certain areas of the marsh covered by relatively thin layers of garbage. This study shall commence prior to July 26, 1972, and an interim report shall be submitted by August 26, 1972; (iii) The County shall retain a hydrologist with suitable academic qualifications, acceptable to the parties, to conduct a comprehensive study of the movement of the ground water emmenating from and beneath the existing garbage dump, and the effect of the proposed excavation has on the surrounding ground water. The study shall include but not be limited to wells or borings drilled to a depth of five to twenty feet into the ground water at all relevant sites. This study shall commence prior to July 26, 1972 and an interim report shall be submitted by August 26, 1972. The final report of the hydrologist shall contain recommendations on how contamination of the ground water can be prevented; (i) The County shall retain a reputable consultant knowledgeable in the field of sanitary engineering and satisfactory to the United States by June 26, 1972, and said consultant shall design a berm or dike to be constructed along the southern edge of the landfill. Said berm shall be designed to contain leachate and other refuse emanating from the landfill, but shall not encroach upon the remaining tidal marsh and stream area, and the consultant shall also design a system to treat the leachate contained and channeled by the berm; (ii) All plans and designs for the berm and leachate treatment system shall be subject to the reasonable approval of the United States, and said designs and plans shall be submitted prior to July 26, 1972. (iii) Construction of the berm and leachate treatment system shall commence at a time to be agreed upon by the County and the United States but in any event not later than July 26, and said construction will be completed by September 1, 1972; (i) Portable fencing shall be obtained and used to control blowing litter in the immediate operating area. These fences should be located fifty (50) to seventy-five (75) feet downwind from the working face. Such fences are to be installed no later than June 9, 1972; (ii) The entire dump shall be adequately fenced to limit access and facilitate control of blowing litter by August 26, 1972. This border fencing, of a permanent nature, shall be adequately policed and litter routinely collected from fences; The Counth shall utilize five pieces of equipment as set forth in the EPA report, for compacting and manipulating the garbage for each day the dump operates, and such equipment usage shall commence prior to June 26, 1972; (i) All work in implementing this order shall be accomplished to the reasonable satisfaction of the United States; (ii) The County shall submit a report of its progress in implementing this agreement, as set out above, to the Court on June 26, 1972, and every 30 days thereafter until completed and furnish copies of such report to the plaintiff; (iii) Representatives of the United States shall be permitted to go upon the landfill site to conduct investigations and tests; and it is further ORDERED that the County shall prior to July 1, 1972, retain, or continue to use, reputable consultants acceptable to the United States to examine and report on (1) the location and [2 ELR 20466] feasibility of alternate and/or interim sites for garbage disposal, (2) the economic markets for recycled material available to handle recyclable resources collected by the communities of Westchester and (3) evaluate commercial offers for recycling made to the County; and all existing pertinent reports, studies, memoranda, tests and supporting material shall be delivered to the United States prior to June 15, 1972; and it is further ORDERED that the right of the parties to conduct the usual pre-trial discovery shall not be impaired by this Order; and the County and the United States will furnish each other with the name, address, and profession of all engineers, scientists, consultants or other experts retained or hired in connection with Croton Point, and will furnish each other with all test results, reports, studies or memoranda of such engineers, scientists, consultants or experts, and the County and the United States will produce such individuals for examination if requested to do so; and it is further ORDERED that the County shall not excavate additional areas at Croton Point or deposit garbage in any new excavation or any new area of Croton Point pending final determination of the plaintiff's motion for a preliminary injunction; and it is further ORDERED that the County shall include the terms of this order in any contract, lease, deed, or other instrument transfering title, control or responsibility for waste disposal at Croton Point so that the terms and conditions of this order shall be binding on the successors and assigns of the County; and it is further ORDERED that the parties may apply to the District Judge signing this order for modification of the order for good cause, or for enforcement of its provisions. Dated: New York, New York, June 6, 1972 * The motion, which does not affect the substance of the main order being signed today, is being denied simultaneously 2 ELR 20463 | Environmental Law Reporter | copyright © 1972 | All rights reserved |