U.S. v. Hooker Chemicals & Plastics Corp., Nos. 104

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: Before FRIENDLY, MESKILL and PIERCE; FRIENDLY
• Citation: 749 F.2d 968
• 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.
• Decision Date: 15 November 1984
• Docket Number: 186,Nos. 104,D

Page 968

749 F.2d 968 21 ERC 1961, 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. Nos. 104, 186, Dockets 84-6110, 84-6112. United States Court of Appeals,
Second Circuit. Argued Sept. 24, 1984.
Decided Nov. 15, 1984.

Page 969

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.

FRIENDLY, Circuit Judge.

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.

Page 970

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.

The action concerns Hooker's use of an approximately four-acre landfill on the American bank of the Niagara River (the "S-area") to dispose of more than 70,000 tons of hazardous chemical wastes between 1947 and 1975. The complaint of the United States, as amended on June 18, 1980, alleged that migration from the S-Area of a number of dangerous chemicals, many of them carcinogenic, was contaminating the Niagara River and, in some cases, the public drinking water supplied by the Niagara Falls Drinking Water Treatment Plant (the "Plant"), which is located approximately 200 yards east of the S-area dump site. According to the allegations made in the complaint, the porous nature of the soil in the S-Area landfill permits toxic wastes dumped by Hooker to mix with shallow subsurface water and then "leach out" eastwards toward the Niagara River. The complaint alleged further that, given the nature of the soil in the vicinity of the S-area and the Plant, and the load-bearing capacity and age of the Plant's pipes, there is a high probability that some of the Plant's subsurface pipes would crack or leak within the next 50 years, with the additional consequent danger that Hooker's chemical wastes might directly enter the water supply in high enough concentration to cause "a human health disaster." The complaint alleged that Hooker's conduct created "an imminent and substantial endangerment to the health of persons" under Sec. 1431 of the Safe Drinking Water Act ("SDWA"), 42 U.S.C. Sec. 300i; ¹ "an imminent and substantial danger to health or the environment" under Sec. 7003 of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. Sec. 6973; ² and "an imminent and substantial endangerment to the health of persons or to the welfare of

Page 971

persons" under Sec. 504 of the Clean Water Act ("CWA"), 33 U.S.C. Sec. 1364. ³ It also alleged that Hooker's "unreasonable interference" with the interest of the United States in protecting the health of its citizens, including those traveling in interstate commerce, constituted a public nuisance. ⁴ Finally, the complaint alleged that Hooker had deposited wastes in navigable waters of the United States without obtaining a permit from the Secretary of the Army in violation of Sec. 13 of the Rivers and Harbors Act of 1899, 33 U.S.C. Sec. 407. We summarize the rather complex and specific relief sought in the complaint:

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.

Page 972

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,...