U.S. v. O'Rourke

• Decision Date: 21 August 1991
• Docket Number: No. 925,D,925
• Citation: 943 F.2d 180
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Andrew P. O'ROURKE, as County Executive of the County of Westchester; Joseph Caverly, as Commissioner, Parks, Recreation and Conservation of the County of Westchester; and the County of Westchester, Defendants-Appellants, New York State Environmental Facilities Corporation, Defendant. ocket 90-6263.
• Court: U.S. Court of Appeals — Second Circuit

Page 180

943 F.2d 180

UNITED STATES of America, Plaintiff-Appellee, v. Andrew P. O'ROURKE, as County Executive of the County of

Westchester; Joseph Caverly, as Commissioner, Parks,

Recreation and Conservation of the County of Westchester;

and the County of Westchester, Defendants-Appellants,

New York State Environmental Facilities Corporation, Defendant.

No. 925, Docket 90-6263.

United States Court of Appeals, Second Circuit.

Argued Jan. 23, 1991.

Decided Aug. 21, 1991.

Carol L. Van Scoyoc, Deputy Westchester County Atty., White Plains, N.Y. (Marilyn J. Slaatten, Westchester County Atty., of counsel), for defendants-appellants.

Nancy G. Milburn, Asst. U.S. Atty., S.D.N.Y., New York City (Otto G. Obermaier, U.S. Atty., S.D.N.Y. and Richard M. Schwartz, Asst. U.S. Atty., S.D.N.Y., of counsel), for plaintiff-appellee.

Before VAN GRAAFEILAND, MINER and MAHONEY, Circuit Judges.

MAHONEY, Circuit Judge:

Defendants Andrew P. O'Rourke, County Executive of the County of Westchester, Joseph Caverly, Commissioner, Parks, Recreation and Conservation of the County of Westchester, and the County of Westchester (the "County") appeal from an order of the United States District Court for the Southern District of New York, Constance Baker Motley, Judge, finding them in contempt of a consent decree and imposing, inter alia, a $1,000,000 fine. See United States v. O'Rourke, 740 F.Supp. 969 (S.D.N.Y.1990). The County had entered into the consent decree in February 1975 in order to settle a lawsuit in which the United States sought primarily to close a garbage dump that was polluting the Hudson River. This appeal turns upon a provision of the consent decree that requires the County "to devise long range plans for solid waste disposal for Westchester County." The district court determined that the County was thereby obligated to develop the capability to dispose of "all solid waste in the County including municipal, commercial, and construction and demolition waste," 740 F.Supp. at 982, and had failed to do so. See id.

We disagree with the district court's interpretation of the consent decree, and consequently reverse the judgment of contempt.

Background

The instant contempt proceeding arises from an action that the United States commenced against the County and related defendants in May 1972, in the United States District Court for the Southern District of New York, pursuant to sections 10 and 13 of the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. §§ 403 and 407 (1988), and section 1 of the New York Harbor Act of 1888, 33 U.S.C. § 441 (1988). The complaint alleged that a garbage dump operated by the County at Croton Point was discharging a noxious liquid known as leachate into the Hudson River and surrounding tidal areas. The complaint primarily sought to enjoin this pollution, halt all garbage dumping at Croton Point as soon as practicable, and require the County to locate and utilize alternative, environmentally safe dump sites.

In response to a motion by the United States for a preliminary injunction, the district court entered an order in June 1972 (the "1972 Order") that required the County to take a number of remedial actions with respect to Croton Point, including: covering areas of the dump with soil, compacting waste in shallow layers, barring or specially treating certain industrial wastes, removing wastes from the tidal streams and marsh, and constructing a protective berm and fencing. The 1972 Order also mandated that the County submit a report of its progress each month until the remedial measures were complete. Of greatest relevance to this appeal, the court further:

ORDERED that the County shall prior to July 1, 1972 retain, and continue to use reputable consultants acceptable to the United States to examine and report on (1) the location and 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....

Over the next two years, the County submitted monthly reports detailing its compliance with the 1972 Order. During this period, the County engaged the services of the New York State Environmental Facilities Corporation (the "EFC") and its consultant, Leonard S. Wegman Co., for the "formulation of a comprehensive County-wide solid waste management disposal plan for review and adoption by the County." Based upon these consultations, the County formulated a Plan for Solid Waste Management in Westchester County (the "1974 Plan") that was annexed to the County's twenty-fourth report to the district court in May 1974.

The 1974 Plan consisted of a broad outline of the County's waste management objectives and a rather general description of how they might be implemented. The plan contemplated the acquisition of landfill sites as alternatives to Croton Point, the acquisition and upgrade of incinerators belonging to Westchester municipalities, and the recycling of materials separated before collection and after incineration. The County Board of Legislators (the "Board") unanimously adopted the 1974 Plan on August 19, 1974.

On February 4, 1975, the district court approved a consent decree (the "Decree") that settled the pending litigation between the United States and the County. The Decree initially recites that "the County has diligently complied or is in the process of complying with" the 1972 Order, and detailed the County's efforts in this regard. Following brief paragraphs relating to the district court's jurisdiction and the persons bound by the Decree, paragraph III permanently enjoins the County from permitting the deposit of refuse from Croton Point into the Hudson River. The paragraph contains an exception for the discharge of leachate due to natural water movements, provided that the County meets specified conditions. These include operating the landfill in accordance with regulations of the New York State Department of Environmental Conservation; determining the landfill's grade, shape, and maximum elevation; covering, seeding, and capping the areas that reach maximum elevation; studying the prospect of restoring damaged marshes; and fulfilling a series of monitoring and reporting duties. Paragraph IV provides that expansion of the Croton Point landfill will be subject to state and federal approval of plans to eliminate or collect and treat any discharge of leachate.

The present controversy focuses on paragraph V, which provides:

The County is permanently enjoined and required to continue to completion the consultation agreement now being performed by the Environmental Facilities Corporation with respect to recycling of solid wastes and resource recovery, and, on the basis of this study by the Environmental Facilities Corporation and any other pertinent and available studies and in consultation with DEC, to devise long range plans for solid waste disposal for Westchester County, which plans shall include resource recovery, if economically feasible.

(Emphasis added.)

The final three paragraphs of the Decree provide that (1) the United States is entitled to inspect the Croton Point landfill to ensure compliance with the Decree; (2) the Decree supersedes all prior court orders in the litigation; and (3) the court retains jurisdiction over the litigation.

In December 1978, then-County Executive Alfred DelBello recommended to the Board the construction within the County of a mass-burning incineration resource recovery facility at Charles Point, in Peekskill, New York. As the district court found, "[t]o obtain the necessary financing for the Facility, the County needed to obtain commitments from municipalities that a guaranteed quantity of refuse would be delivered to the Facility." 740 F.Supp. at 976. To this end, the County negotiated intermunicipal agreements ("IMAs") with thirty-five Westchester municipalities. Under the IMAs, the municipalities committed to deliver specified minimum tonnages of solid waste for the Charles Point facility, and to pay a "tipping fee" for each ton delivered. The County in turn agreed to accept and dispose of all solid waste collected by each participating municipality up to a maximum of 110 percent of its committed tonnage. In the aggregate, the thirty-five municipalities committed 419,000 tons of refuse per year to Charles Point, leaving the County potentially responsible for disposing of approximately 460,000 tons per year.

The County determined that it would need a facility with a capacity of 550,000 tons per year to fulfill its obligations under the IMAs. The district court found that the County also approached the private carters operating in Westchester in an effort to negotiate agreements that would commit additional tonnages to Charles Point. 740 F.Supp. at 976. It is undisputed, however, that during the planning stage, the private carters declined to participate.

In June 1981, the County, acting through the Westchester County Industrial Development Agency, contracted with Wheelabrator Frye, Inc. for the construction and operation of the Charles Point facility. Charles Point began accepting solid waste in October 1984. In 1986, state and federal environmental permits allowed an increase in disposal at Charles Point from 550,000 to 670,000 tons of solid waste per year, which represents 80 percent of the facility's potential capacity. When the Croton Point landfill closed in 1986, Charles Point became the County's sole means for solid waste disposal.

Meanwhile, in June 1985 the United States had begun an investigation regarding the County's compliance with the Decree. In August 1987, the United States moved to hold the County in contempt of the Decree, alleging that the County: (1) allowed...