ELR Citation: ELR 20801
No(s). CIV-79-988C (W.D.N.Y. Apr 15, 1985)

The court approves a settlement agreement providing for the containment and collection of migrating chemical wastes at defendant's S-Area Landfill chemical dump site located near the drinking water supply of Niagra Falls, New York. After extensive negotiations, the parties to a suit initiated by the Environmental Protection Agency against Hooker Chemical entered into a settlement agreement establishing various remedial programs for the S-Area Landfill site. The court first sets out the standard of review of settlement agreements. The court will not substitute its judgment for that of the parties, but must determine that the agreement is fair to the parties, lawful, and in the public interest. Since significant public interests are involved, the court must also determine whether the agreement adequately addresses the problems that Congress meant to correct when it enacted the statutes upon which this suit is based.

The court next describes the terms of the agreement, which adopts a general strategy of containing off-site migration of chemical wastes. The court finds that programs designed to prevent chemicals from migrating toward Niagra Fall's drinking water treatment plant and into its intake system adequately protect the city's drinking water supply. Although certain assumptions upon which predictions of the effectiveness of these programs are based have not been proven conclusively, Hooker is bound by the agreement to conduct tests to determine if further remedial action is necessary. The court next determines that the monitoring program established for Niagra Fall's drinking water provides adequate protection to the people of the city. Those challenging the settlement have not demonstrated that alternative remedies such as building a new water treatment plant are either necessary or feasible, and they may not be within the court's power to require. Finally, the court finds adequate the agreement's plan for protecting the structures of the water treatment plant.

The court next addresses opposition to the settlement agreement by plaintiff-intervenor Ontario, Canada. The court rejects the contention that the agreement does not adequately guard against migration of chemical wastes toward the Canadian side of the border. Ontario failed to offer any proof that the containment program would not work. The court also concludes that the program's reliance on containment is fully consistent with the public policies reflected in the Comprehensive Environmental Response, Compensation, and Liability Act and the Resource Conservation and Recovery Act. The court refuses to require that the wastes be excavated and incinerated because such a remedy would be exceedingly impractical and expensive at the S-Area site. Finally, the court notes that it will continue to consider Ontario's views on the enforcement of the agreement.

Counsel for Plaintiffs
Michael Elder, Bruce J. Berger
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5272

Marcia J. Cleveland, Beryl Kuder, Ass't Attorneys General
Office of the Attorney General
Two World Trade Center, New York NY 10047
(212) 488-4141

Counsel for Defendants
Thomas H. Truitt, Keith S. Watson
Wald, Harkrader & Ross
1300 19th St. NW, Washington DC 20036
(202) 828-1200

Joel E. Schweitzer, Earl Brydges
Gellman, Brydes, Schroff & Schweitzer
800 Main St., Niagra Falls NY 14301
(716) 285-5152

Counsel for Plaintiff-Intervenors
Philip G. Sunderland
Terris & Sunderland
1121 12th St. NW, Washington DC 20004
(202) 682-2100