US v. Pepper's Steel and Alloys, Inc.

Citation658 F. Supp. 1160
Decision Date23 April 1987
Docket Number85-571-CIV-EPS.,No. 83-1717-CIV-EPS,83-1717-CIV-EPS
PartiesUNITED STATES of America, Plaintiff, v. PEPPER'S STEEL AND ALLOYS, INC.; Florida Power and Light Company; Norton Bloom; Thomas A. Curtis; William Payne; Flora Payne; and Lowell Payne, Defendants.
CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida

F. Henry Habicht, Asst. Atty. Gen., Land and Natural Resources Div., U.S. Dept. of Justice, Washington, D.C., Leon B. Kellner, U.S. Atty., S.D. Fla. by Marc Fagelson, Asst. U.S. Atty., S.D. Fla., Thomas L. Adams, Jr. Asst. Adm'r for Enforcement & Compliance Monitoring, U.S. E.P.A., Washington, D.C., Lee A. DeHihns, Jack Ravan, Regional Adm'r, U.S. E.P.A., Region IV, Atlanta, Ga., for plaintiff U.S.

David B. Weinberg, Fox, Weinberg & Bennett, Washington, D.C., John Barkett, Steel, Hector & Davis, Miami, Fla., for defendant Florida Power & Light Co.

John Wilcox, Tampa, Fla., for defendants Curtis & Payne (all).

R. Hugh Lumpkin, Miami, Fla., for defendant Pepper's Steel.

Paul Ezatoff, Jr., Deputy Gen. Counsel, Tallahassee, Fla., for plaintiff-intervenor Florida Dept. of Environmental Regulation.

Robert A. Duvall, Asst. Co. Atty., Miami, Fla., Robert R. Homiak, Environmental Enforcement Section Land and Natural Resources Div., U.S. Dept. of Justice, Washington, D.C., Pamela Sbar, Office of Enforcement & Compliance Monitoring, U.S. E.P.A., Washington, D.C., for amicus curiae Dade County Dept. of Environmental Resources Management.

MEMORANDUM OPINION AND ORDER GRANTING MOTION FOR ENTRY OF CONSENT DECREE

SPELLMAN, District Judge.

This CAUSE comes before the Court on Plaintiff's, UNITED STATES OF AMERICA, Motion for Entry of Consent Decree filed in the above-styled case. This action was originally filed by the United States of America at the request of the Administrator of the Environmental Protection Agency ("EPA"), pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9601 et seq., against the Defendants, PEPPER'S STEEL AND ALLOYS, INC., FLORIDA POWER AND LIGHT COMPANY, NORTON BLOOM, THOMAS A. CURTIS, WILLIAM PAYNE, FLORA PAYNE and LOWELL PAYNE. The Complaint originally sought injunctive relief to gain access to the property which is the subject matter of this Consent Decree, to arrange for the removal of polychlorinated biphenyls ("PCB's") which had been discovered on the property and which were being released into the underlying groundwater, threatening it with serious contamination. PCB's have been designated as hazardous substances within the meaning of § 101(14) of CERCLA. The underlying area is also quite precious, insofar as it comprises the Biscayne Aquifer, the primary source of drinking water for southeast Florida. The original action was later consolidated with case number 85-571-CIV-EPS, which is an action under § 107 of CERCLA wherein the Government is seeking recovery of the costs expended by the EPA during the immediate removal phase of the cleanup at the site.

Perhaps more than any other Order issued by this Court, this one is truly entered on behalf of the public; in particular the citizens of Dade and Broward counties, who are the primary beneficiaries of the united efforts of the parties herein. The Court takes this opportunity to express thanks to the UNITED STATES, FLORIDA POWER AND LIGHT COMPANY and all the other named parties and signatories to the Consent Decree for their efforts and for their ability to place by the wayside their individual desires for the sake of a more universal result. This record reflects a result that comes from cooperation, dedication and, above all, a firm desire to avoid time consuming expensive litigation. This is a case where the public's interest was placed paramount to the private interests of those called upon to engage in the battle.

The Consent Decree in this case is a particularly favorable result, especially when one considers the magnitude of the problems presented by hazardous waste sites throughout the United States. There are presently 25,875 potentially hazardous waste sites in the United States, of which 887 are currently on the National Priority List. Environmental Protection Agency, The Superfund Progress Report, December 31, 1986. The site involved in this case is but one of those 887. Of the 887 sites on the National Priority List, 119 civil actions have been filed by the Government under § 107 of CERCLA, and 93 have been filed pursuant to § 106 of CERCLA. Id. Admittedly, some of the actions filed pursuant to § 106 also involve actions under § 107, but that does not negate the fact that the Government is actively addressing numerous hazardous waste sites simultaneously by civil actions, not to mention those sites that are being addressed administratively. Many of the civil actions filed result in lengthy litigation, thus prolonging the effectuation of remedial action and clouding the true issue, which should always be the protection of the environment and its inhabitants.

Prolonged litigation typifies a situation where private interests and concerns obfuscate our responsibility to one another as citizens of this world to address and rectify the harms associated with contaminants. Such is not the case here, and the parties are commended for this result. If every court before whom these matters were filed could have the opportunity of working with parties and lawyers of the quality that this Court has had, the concerns for the environment and whatever pollution might have occurred as a result of the dispensing of hazardous substances would be easily resolved. The attached Consent Decree should first and foremost be a model to others of what can be achieved through the efforts of the Government and private parties to accomplish and alleviate what this Court perceives to be one of the most dangerous conditions a community can be confronted with, i.e., the loss of the aquifer in south Florida and the drinking water of this area.

One cannot begin to imagine the countless hours of work expended by the parties herein and the huge sums of money that were spent without concern for its ultimate recovery. This result reflects that keen sense of public awareness which is alive in this community. The requisite 30 day comment period has come and gone without a single objection being raised by the public. This Court can only attribute that result to the quality of work that was presented to the public to begin with.

Finally, it is important to note that the Consent Decree and the actions performed in accordance with it have a significance beyond that which has already been mentioned. A representative from the EPA announced in open Court that this project incorporates a new application of existing technology—the use of a solidification technology for metals as well as organics. This approach, we are told, is expected to have widespread use in the future. Accordingly, the EPA as well as other agencies and parties throughout the United States are monitoring the progress here in Miami.

With great pleasure this Court affixes its signature to this Consent Decree. The Motion is GRANTED.

CONSENT DECREE

Whereas, the United States of America ("United States" or "Plaintiff"), acting on behalf of the Administrator of the United States Environmental Protection Agency ("EPA"), filed a complaint in this case on July 11, 1983, and an amended complaint on March 5, 1985, pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9601 et seq., seeking to require defendants to undertake response actions at the Pepper's Steel site, located in Medley, Florida, and seeking to secure reimbursement of funds expended by the United States for investigations, clean-up activities, enforcement activities, and other actions at the Pepper's Steel site; and

Whereas, Dade County Department of Environmental Resources Management ("DERM") has been granted the status of amicus curiae and consents to be bound by the terms of this Decree; and

Whereas, the Court has encouraged the parties to enter into settlement discussions and the Settling Parties, in a spirit of compromise, have put aside their legal and equitable claims and defenses and worked cooperatively to resolve their disputes in a fair and equitable fashion, without litigation; and

Whereas, the Court finds that the partial settlement of this lawsuit without costly and protracted litigation is in the public interest; and

Whereas, the Plaintiff contends that there is a migration of hazardous substances from the site and desires that the Settling Defendant implement a remedy to prevent such alleged migration; and

Whereas, Defendant Florida Power & Light Co. ("FPL") denies the existence of such migration, but similarly desires to see a remedy implemented to resolve the disputes between the parties;

Whereas, all Settling Parties, by and through their representatives, have each agreed to the execution of this Consent Decree;

NOW THEREFORE, without any admission of any fact or law, except as expressly stated in Section II hereof, or of liability of any party to any other party or to any other person, and upon the express consent of the Settling Parties hereto, it is ORDERED, ADJUDGED and DECREED as follows:

I

ADMISSIBILITY OF THIS CONSENT DECREE

The Settling Parties have entered into this Consent Decree with the express understanding that it is the product of extended and comprehensive settlement negotiations. The Court expressly finds that the Settling Parties participated in those negotiations and have executed this Consent Decree in good faith, and that neither this Consent Decree, its attachments, nor the fact of its execution or negotiation shall be admissible against any signatory in any judicial or administrative proceeding other than one to enforce the terms of this Consent Decree. By entering this Consent Decree, FPL makes no admission as...

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