U.S. v. Hooker Chemicals & Plastics Corp.
Citation | 749 F.2d 968 |
Decision Date | 15 November 1984 |
Docket Number | 186,Nos. 104,D,s. 104 |
Parties | , 53 USLW 2285, 40 Fed.R.Serv.2d 269, 14 Envtl. L. Rep. 20,875 UNITED STATES of America, the State of New York, Plaintiffs-Appellees, v. HOOKER CHEMICALS & PLASTICS CORP., Hooker Chemical Corp., Occidental Petroleum Investment Co., Occidental Petroleum Corp. & City of Niagara Falls, N.Y. ("S"-Area Landfill), Defendants, Hooker Chemicals & Plastics Corp., City of Niagara Falls, New York, Defendants-Appellees, Niagara Environmental Action, Ecumenical Task Force of the Niagara Frontier, Inc., Pollution Probe Foundation, and Operation Clean Niagara, by its President, Margherita Howe, Appellants. ockets 84-6110, 84-6112. |
Court | U.S. Court of Appeals — Second Circuit |
Beryl Kuder, Asst. Atty. Gen., New York City, Robert Abrams, Atty. Gen. N.Y., and Eileen Ordover, Law Student Intern, New York City, for plaintiff-appellee, the State of N.Y.
Joel E. Schweitzer, Niagara Falls, N.Y., Gellman, Brydges, Schrof & Schweitzer, Niagara Falls, N.Y., for defendant-appellee, City of Niagara Falls, N.Y.
Howard R. Berman, Cambridge, Mass., Barbara Morrison, Buffalo, N.Y., for appellants, Ecumenical Task Force of the Niagara Frontier, Inc., Pollution Probe Foundation, and Operation Clean Niagara.
Robert J. Sugarman, Philadelphia, Pa., Sugarman, Denworth & Hellegers, Philadelphia, Pa., Lewis Steele and John E. Galeziowski, Buffalo, N.Y., for appellant Niagara Environmental Action.
George Berger, New York City, Louis Nizer, Martin H. Wasser, Phillips, Nizer, Benjamin, Krim & Ballon, New York City, Thomas H. Truitt, William R. Weissman, Donna Brown Grossman, Wald, Harkrader & Ross, Washington, D.C., David K. Floyd, Phillips, Lytle, Hitchcock, Blaine & Huber, Buffalo, N.Y., for defendants, Hooker Chemicals & Plastics Corp., Hooker Chemical Corp., Occidental Petroleum Inv. Co. and Occidental Petroleum Corp.
Lloyd S. Guerci, Asst. Chief of the Environmental Enforcement Section, Land and Natural Resources Div., Washington, D.C., F. Henry Habicht, II, Asst. Atty. Gen., Washington, D.C., Salvatore R. Martoche, U.S. Atty., Buffalo, N.Y., Dirk D. Snel and Wendy B. Jacobs, Dept. of Justice, Washington, D.C., for plaintiff-appellee, U.S.
Before FRIENDLY, MESKILL and PIERCE, Circuit Judges.
The appellants are four environmental organizations. Two, the Ecumenical Task Force ("ETF") and Niagara Environmental Action ("NEA") are New York organizations; many members of ETF and all members of NEA are directly affected by industrial pollution of the Niagara River. The two others, Pollution Probe Foundation ("PPF") and Operation Clean Niagara ("OCN") are Canadian organizations; many members of PPF and all members of OCN live in the Niagara region of the Province of Ontario and are directly affected by pollution of the Niagara River both by itself and as it flows into Lake Ontario. The appeals are from an order of Chief Judge Curtin of the District Court for the Western District of New York denying the appellants' applications to intervene under F.R.Civ.P. 24(a). 101 F.R.D. 451. ETF, PPF and OCN appealed only insofar as the order denied intervention as of right under F.R.Civ.P. 24(a); NEA appealed from the denial both of intervention as of right under Rule 24(a) and of permissive intervention under Rule 24(b), but has not briefed the latter point, which we regard as waived.
This action was begun on December 20, 1979, when the United States filed a complaint against Hooker Chemicals & Plastics Corporation, its parent, Hooker Chemical Corporation, Hooker Chemical Corporation's parent, Occidental Petroleum Investment Corporation, and the latter's parent, Occidental Petroleum Corporation (collectively, "Hooker"); and the City of Niagara Falls, New York (the "City"). The State of New York (the "State") was soon joined as a defendant upon a motion by Hooker pursuant to F.R.Civ.P. 19(a); having requested and received permission to be realigned as a plaintiff, the State filed its own complaint against Hooker and the City. The City and Hooker also filed cross-claims against one another.
1. A mandatory injunction requiring Hooker, inter alia,
(a) to install and maintain a perpetual monitoring program for all subsurface water at the S-area;
(b) to install grout curtain vaults down to and penetrating the bedrock encircling both the S-area and the Plant;
(c) within the grout curtain vaults, to cover the entire area with a suitable clay cap, graded with top soil and seeded;
(d) to install a leachate collection system and destroy any leachate subsequently collected by it;
(e) to vent the area within the grout curtain in a specified manner, and filter gas that is vented;
(f) to isolate all pipes and structures of the Plant, seal off the current water intake system, construct an alternative intake system that will be free of leachate migrating from the S-area, and pay for the installation and operation of an optimized pilot granular activated carbon treatment system at the Plant; (or, as an alternative to these measures, construct a new drinking water treatment plant); also, to pay for continuous monitoring of the public drinking water supply until the remedial measures are completed;
(g) to clean the water distribution system used to provide water to the public, and replace all systems for which cleanup cannot be accomplished to the levels required by the EPA and the State of New York;
(h) to perform in perpetuity any additional remedial measures which the EPA determines to be necessary on the basis of the monitoring reports.
2. An order to the City of Niagara Falls to cooperate fully with the implementation of all the remedial measures required by the mandatory injunction.
3. An order requiring Hooker either to deposit $50,000,000 in an annuity trust account to assure accomplishment of these measures or to obtain a bond insuring the availability of the necessary funds.
4. An order requiring Hooker to reimburse the United States for all funds expended for remedial actions related to the discharge of wastes in the S-area landfill.
5. Retention of jurisdiction by the court until all remedial measures had been effectuated.
6. An award of costs and any other relief the court should find just and appropriate.
See Joint App. at 35-38.
The complaint of the State of New York alleged "on behalf of itself and as parens patriae on behalf of all residents and citizens of the State of New York" seven causes of action for public nuisance and three causes of action for violations of N.Y. Environmental Conservation Law Secs. 17-0501, -0701, -0803. For relief the State sought a judgment directing Hooker to:
abate the nuisance at the S-area landfill ... by taking such actions as the court shall find to be necessary and sufficient to completely and permanently abate the migration and threat of migration of these chemical wastes, including all actions necessary and sufficient to protect permanently the safety of the water furnished by the City of Niagara Falls Water Treatment Plant.
The State also sought compensatory and punitive damages, as well as civil penalties for the alleged violations of the Environmental Conservation Law. See Joint App. at 58-59.
Finally, the City filed cross-claims for relief, essentially borrowing allegations made by the United States and the State. Seven claims were alleged against Hooker for creating a "continuing public and private nuisance." In addition, the City alleged an eighth claim for statutory violations of Secs. 17-0501, -0701, and -0803 of the N.Y. Environmental...
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