Hudson River Fishermen's Ass'n v. Westchester Cty.

• Court: U.S. District Court — Southern District of New York
• Writing for the Court: GOETTEL
• Citation: Hudson River Fishermen's Ass'n v. Westchester Cty., 686 F. Supp. 1044 (S.D. N.Y. 1988)
• Decision Date: 26 May 1988
• Docket Number: No. 87 Civ. 1575 (GLG).,87 Civ. 1575 (GLG).
• Parties: HUDSON RIVER FISHERMEN'S ASSOCIATION, Plaintiff, v. COUNTY OF WESTCHESTER, Andrew O'Rourke, County Executive, Defendants.

686 F. Supp. 1044

HUDSON RIVER FISHERMEN'S ASSOCIATION, Plaintiff, v. COUNTY OF WESTCHESTER, Andrew O'Rourke, County Executive, Defendants.

No. 87 Civ. 1575 (GLG).

United States District Court, S.D. New York.

May 26, 1988.

Lower Hudson Legal Services, Inc., White Plains, N.Y. (Robert F. Kennedy, of counsel), for plaintiff.

Rosenman & Colin, New York City by Martin S. Baker, Marc E. Kasowitz, Hector Torres, Margaret M. Harding, for defendants.

OPINION

GOETTEL, District Judge:

Last year this country was treated to the spectacle of a New York garbage barge shuttling up and down the east coast in an effort to locate a receptive host for its odious cargo. The ensuing fiasco dramatized what surely is to become an increasingly difficult and testy political question in the 1990's and beyond—what is this country going to do about its solid and hazardous waste?

This case presents a variation on that theme. For years the common practice in this country was to dump its waste—consumer, industrial, and otherwise—in vast landfills. The modus operandi was "out of sight, out of mind." Unfortunately, given the crude state of waste management and scientific know-how at the time, most of these dumps are environmental time bombs waiting to leach toxic materials into our rivers and water systems. Thus, not only must we come to grips with our present and future waste problems, but past disposal practices will increasingly deserve our immediate attention as these time bombs detonate and leach pollutants into our environment. This case is brought by a group acting as "private attorneys general" under the Federal Clean Water Act seeking damages and injunctive relief relating to one such dump along the Hudson River.

I. FACTS

Croton Point is a large area of almost 600 acres on the east shore of the Hudson River. It juts for a couple of miles into the widest section of the Hudson River, forming the southeast corner of Haverstraw Bay and the northern border of Croton Bay. It was one of the largest tidal marshes on the Hudson River and was an important ecological area for various types of flora and fauna.

In 1927, a quiet time between two world wars when ecological considerations were of less significance and the Croton area less populated, Westchester County decided to put a major landfill on a part of the Croton Marsh.¹ For almost sixty years it was an active dump. Initially, only seventy acres of the marsh were used. The dump gradually expanded, however, ultimately engulfing most of the wetlands. During the same period, a county park was developed in conjunction with the landfill, with a beach maintained on the river.

Until 1973, the dump was a receptacle for not only domestic refuse but also industrial wastes. Of the thousands of tons of garbage dumped daily at this site, about 10% were industrial wastes containing chemical pollutants, volatile organic components, metals, sewage, and even radioactive materials. The dangers of having such a major environmental threat so near such an important waterway and recreational and ecological area were not recognized until the 1950's. For decades thereafter, the Westchester County Board of Supervisors and its Department of Parks, Recreation and Conservation attempted, with little success, to deal with the problem.

In 1972, the Federal Government, through the Environmental Protection Agency ("EPA"), conducted an investigation into the problem of "leachate" emanating from various parts of the landfill.² It appeared from EPA tests that the waters surrounding the landfill had high concentrations of specific organic and metallic substances. Recommendations were made concerning the operation of the landfill, including the implementation of a plan for ground-water monitoring and topographical changes to protect the marshlands. The County indicated that it agreed with the report and would proceed to implement the recommendations. Notwithstanding that fact, the Government shortly thereafter instituted a civil action against the County, United States v. Michaelian the then-County Executive, 72 Civ. 1964 (CBM), under the Rivers and Harbors Act of 1899, 33 U.S.C. § 401 et seq., the New York Harbor Act of 1888, 33 U.S.C. § 441 et seq., and under common law claims of public nuisance. The thrust of that complaint was that the County's landfill was unlawfully discharging leachate into the Hudson River without a permit.

On February 18, 1975, a final consent judgment was entered in that case. The judgment acknowledged that the County had been or was in the process of complying with the EPA's requirements with respect to ending pollution in the Hudson River area from the landfill. The consent decree required the County to operate and maintain the landfill in conformance with regulations and standards promulgated by New York's Department of Environmental Conservation ("DEC").³ The consent decree also set forth plans for ending use of the landfill when it had reached an appropriate size, for covering those portions of the landfill that were already at their maximum grade, and for capping and sealing the landfill to eliminate infiltration of rain water or other sources which could recharge existing ground water. Under the consent decree, the County is required to monitor annually both the ground-water table under the landfill and the leachate flow from the landfill until five years after the date of the final capping. It also must submit annual reports to the EPA, DEC, and the United States Attorney's office describing the steps taken pursuant to the consent decree. These reports were submitted. In the interim, the County looked for alternatives for garbage disposal, raising complicated local political concerns which were not quickly resolved. The United States District Court for the Southern District of New York retained jurisdiction over the Michaelian action.

In November 1985, the Hudson River Fishermen's Association ("HudFish"), the plaintiff in this action, complained that the County was violating certain provisions of the consent decree. The United States Attorney's office for the Southern District of New York was requested to and did reopen its investigation. On June 30, 1986, the County closed the landfill and retained consultants and experts to prepare plans for the final capping and sealing of the landfill. The plans were submitted to the EPA and DEC in July of 1986 for approval.

Although the landfill is no longer receiving any form of garbage, sewage, or industrial waste, it continues to be an ecological problem of substantial magnitude. The materials dumped over the decades contained a certain amount of liquids, some of which are pollutants in and of themselves, and the remainder of which mix with toxic wastes forming leachate. In addition, as indicated supra note 2, storm water is absorbed by the landfill and, through a mixing process, also can become leachate. This leachate does not remain stable within the landfill. Some of it percolates to the surface, some of it leaches downward and outward. Due to the area's geological configuration, the tendency for all moving liquids, both on the surface and subsurface, is to gravitate toward the Hudson River. As a partial answer to this problem, the County has created a pool. The plaintiff (and at times, the County) has referred to this pool as a "leachate lagoon."⁴ The County maintains that it is primarily a storm-water collection pool and has no more than 5% leachate in it. Given the size of this pool, however, even a 5% fraction would represent an enormous amount of pollutant.

Next to the landfill, and adjacent to but below the pool, there is a drainage ditch— also on County property. The purpose of this ditch is to collect rain water from park and parking lot areas and direct it to a discharge pipe which goes underground and ultimately discharges into the Haverstraw Bay, a couple of hundred feet from the Croton Beach swimming area. The plaintiff alleges that, since at least July 10, 1981, this pipe has been discharging effluent containing metals, inorganic substances, and fecal coliform into the bay, thereby polluting the river and the nearby beach. It is the contention of the plaintiff that this pollution is escaping from the "leachate lagoon" either through or under the protective berm and into the adjacent drainage ditch. The County, based on its own chemical samples, vigorously denies this. County officials, however, acknowledge that this is a possible result due to subterranean percolation, and there is sufficient evidence from other sources who have observed the drainage ditch and the outflow to raise a substantial factual issue as to whether this has occurred. Beyond any question, the adjacent waters have been polluted on recent occasions. Although the County argues that this is caused by natural storm-water runoffs, it appears to the court that, considering the size of the landfill, there are a number of sources from which the landfill could pollute the nearby areas until and unless an effective capping of the entire surface of the landfill takes place.

In light of the various complaints from interested sources, including HudFish, the United States Government instituted proceedings against the County, charging it with contempt of court in failing to observe the terms of the earlier consent decree. Before those proceedings were brought to court, however, HudFish commenced a "citizen's suit" under section 505 of the Clean Water Act ("CWA"), 33 U.S.C. § 1365. The complaint is directed particularly to the claim that the drainage ditch and outflow pipe are illegally discharging pollutants into the river in violation of section 301 of the CWA, 33 U.S.C. § 1311.⁵ The complaint alleges that the County does not have a permit to use the ditch and outflow pipe for the discharge of pollutants. Plaintiff now seeks fines for past violations, injunctive relief, and attorney's fees. Thereafter, the government brought on its contempt proceedings...