On April 30, 1982 United States District Court Judge John T. Curtin of the Eastern District of New York issued his decision and order approving a settlement agreement between plaintiffs and defendants in United States v. Hooker Chemicals & Plastics Corp.,¹ — the Hooker Hyde Park Landfill case. This was one of four cases filed in December 1979 by the federal government against the company for its waste disposal practices in Niagara Falls, New York. The decision, issued more than sixteen months after the parties submitted the agreement to the court for approval, followed several public meetings and hearings, including an eight day "trial" in which opponents of the agreement were given the opportunity to present evidence and cross examine the witnesses of the parties in support of the agreement. The attempt of the parties to address all the uncertainties inherent in controlling pollution from hazardous chemical disposal sites, as well as the unprecedented testing and eventual wholehearted judicial approval of the Hyde Park settlement agreement, suggest that it will become a standard against which to gauge the resolution of subsequent disputes concerning the clean up of hazardous waste disposal sites.

This article describes the historical context in which the Hyde Park case arose, summarizes the most significant technical and legal mechanisms of the settlement agreement, and identifies the critical factors leading to the success of the negotiations among the parties.

Historical Context

In December 1979, after a year-long investigation of inactive hazardous waste landfills, the Environmental Protection Agency and the United States Department of Justice brought the first of several "imminent and substantial endangerment" cases under § 7003 of the Resource Conservation and Recovery Act.² Four of the first six cases concerned the waste disposal practices of the Hooker Chemicals & Plastics Corporation in Niagara Falls, New York. Hooker had operated at least four waste disposal sites in the area during a period of more than thirty years. The problems associated with one of the sites, Love Canal, had vaulted into the nation's attention in August 1978 when the New York State Department of Health declared a public health emergency at the site. Hooker had at one time owned the site and used it for waste disposal until it ceased its activities there and sold the property to the Niagara Falls School Board. Hooker continued to own three other sites: the Hyde Park, S-Area, and 102d Street landfills. The federal government filed suit over conditions at each of the four landfill sites.

Almost immediately after the filing of these lawsuits representatives of Hooker and the federal government³ met to attempt to reach a settlement to resolve the issues raised in these cases. Each of the sites posed its own difficult legal and scientific problems. The problems at Love Canal had already engendered private party litigation against Hooker with claims of over two billion dollars, which could be seriously affected by a Hooker settlement with the government. In addition, the legal uncertainties surrounding the issue of Hooker's liability for acts committed twenty years in the past on the Love Canal property in no longer owned raised a serious barrier to reaching an early settlement concerning this site. None of the other three sites posed these problems. With regard to each, it was at least clear that Hooker continued to own and exercise control over at least part of the affected property. Hooker and the United States commenced the negotiation process with the Hyde Park site.

Although almost everyone has heard of Love Canal, few have heard of the Hyde Park landfill. Hooker had disposed of the waste products generated by its manufacture of agricultural chemicals, fertilizers, plastics, and various industrial chemicals in Niagara Falls, New York, at Love Canal from 1942 to 1953. When it ceased using Love Canal, it switched most of its waste disposal operations to Hyde Park. From 1953 until 1975 Hooker used the Hyde Park site to dispose of the toxic byproducts of its chemical manufacturing processes. For a period of more than two decades at Hyde Park, Hooker disposed of over four times the volume of chemicals it disposed of at Love Canal, while the Hyde Park site was only one-fourth the size of Love Canal. An estimated 80,000 tons of chemical wastes were deposited at the site, including 3,300 tons of trichlorphenol "still bottoms,"⁴ the combination of which could contain as much as one thousand pounds of dioxin, the most dangerous chemical ever synthesized.⁵ Thus, it was with a definite sense of urgency [12 ELR 15014] that the negotiators proceeded to deal with the Hyde Park landfill.

On January 19, 1981, after about one year of almost continuous negotiation, the parties submitted a proposed settlement agreement to the court for its approval. The agreement provides a mechanism for ascertaining the migration of chemicals from the site, for the containment of waste within the site, and for monitoring and maintenance of the containment program. In addition, the agreement sets up performance standards and dispute resolution mechanisms.

The Agreement

The agreement embodies a combination of existing state-of-the-art technologies to address known problems at the site with a new concept called "Requisite Remedial Technology" to address potential undefined or unanticipated problems. Further, the agreement sets up mechanisms for the resolution of disputes that could arise under the agreement, keyed to explicitly articulated goals, principles, and standards of review.

Identification of Contamination and Programs for Containment, Monitoring, and Maintenance

First, Hooker must utilize "routine, long recognized methods for containment of liquid matter,"⁶ including capping the site. Capping is necessary to prevent rainwater and snowmelt from infiltrating the area of contamination, percolating through the waste, and, now heavily polluted, migrating into the surrounding groundwater. To assure that an appropriate area is capped, Hooker must engage in confirmatory soil sampling in an expanding perimeter around the site. The result of this soil sampling program will be a map of the extent of soil contamination which will determine the exact boundaries of the cap.

Although hundreds of different chemicals were disposed of at the site, only certain target chemicals will be sampled for; these chemicals will be used indicators or surrogates for the purposes of tracing migration. The "parameter" chemicals were chosen because their presence would most likely indicate the presence of others, including dioxin.

The agreement also requires Hooker to continue to operate the shallow tile drain system already in place at the site and to install two new leachate collection systems. The first new system is a tile drain installed at least ten feet below ground level and the second is a series of "purge wells" designed to draw out liquids in a deeper stratum. The combination of these systems should assure that virtually all leachate currently migrating from the site will be collected. Each collection system will be located in a different geological stratum and should act to draw back and collect migrating liquids.The collected liquid will be treated and pumped into temporary storage lagoons and, within one year, into permanent storage containers. "Non-aqueous phase" wastes will be disposed of by high temperature incineration. Another provision allows the Environmental Protection Agency to require further remedial actionif it finds that airborne particulates migrated from the site prior to the effective date of judgment.

In separate addenda, provision is made for a study of how best to clean up contamination in Bloody Run, a creek which flows near the site, and for clean up of the Niagara Gorge where Bloody Run discharges to the Niagara River.⁷ These addenda also establish rigorous monitoring, maintenance, and safety efforts and a guarantee by Occidental Petroleum Company, Hooker's parent, to assure that there will be adequate financial resources to carry out the requirements of the agreement.

Requisite Remedial Technology

The most significant aspect of the agreement is its definition and use of a concept called "Requisite Remedial Technology" (RRT) as a standard for the design and performance of the agreement's programs and to govern the resolution of problems that may arise in its implementation. Thus, if the containment and retrieval methods explicitly called for in the agreement prove inadequate to meet the goals defined for them, Hooker will be required to address the problem by using RRT.

"Remedial Technology" is defined as "engineering and construction practices used or accepted for use in landfill containment projects or other industrial projects which are applicable to the materials and hydrogeological conditions found at the landfill site."⁸ To determine if the technology is requisite, three primary factors must be considered:

The nature of the endangerment to human health and the environment which the Remedial Technology is designed to address; the extent to which application of the Remedial Technology would reduce such endangerment to human health or the environment or would otherwise benefit human health or the environment; and the economic costs required to apply the Remedial Technology.⁹

Thus, no specific known control technique has been designated to address future problems, but the agreement specifies where to look for and how to select practical, site-relevant corrective measures.

This approach was adopted because it became clear in analyzing and discussing the issues that it would be unwise, if not impossible, to prescribe a specific solution or solutions for all the problems which might arise at the Hyde Park Landfill. As noted by the court:

This need for more knowledge and specific studies was expressed time and time again throughout the proceedings by experts from every field.¹⁰

The determination of what remedy will meet an as yet undefined problem, or will be effective if monitoring demonstrates that in-place remedies are not working, can be made with confidence only when the dimensions of such potential problems are defined.

[12 ELR 15015]

When an RRT determination must be made, it shall be preceded by a study by Hooker designed to identify the problem and all potential remedies. Once the governmental parties determine what RRT is required, Hooker must then apply the RRT unless the court decides it would be arbitrary and capricious to require Hooker to do so. Thus, the judge (or special master, as appropriate) need not become an expert on such complex subjects as geohydrology and chemistry in order to rule.

The court commented on the agreement's RRT provision as follows:

While at first the terms seem ambiguous, closer examination of RRT and its use in the settlement documents reveals that the concept is an enormously flexible one which, with adequate safeguards which are written into the agreement, makes it a viable, workable solution to the problem. By the inclusion of the term in the settlement decree, the defendant has agreed to commit itself to undertake a massive investigation of the site. The defendant is obligated to map and to address the contamination to whatever extent it is found. The term RRT is necessarily loosely defined, because at this time, it is impossible for any party or non-party to know what methodology will be appropriate and will be most successful in halting the leaching process.¹¹

Thus, the agreement assures that the technology used to address future problems will be the state-of-the-art at the time it is to be implemented.

Such future-oriented flexibility could not have been achieved had the parties or the court insisted upon the imposition of an already determined technology. The process provided by the agreement can serve as a model in determining appropriate remedies for the many hazardous waste problems the dimensions of which are as yet either unknown or uncertain.

Factors Critical to the Successful Negotiation

Three factors which were critical to the success of the Hyde Park negotiations may be broadly applicable to environmental dispute resolution: (1) commitment of appropriate time and resources to achieve a settlement, (2) mutual identification of scientific justifications and policy rationales for the selection of remedies, and (3) consideration of the concerns of the local community.

First, the parties must be willing to commit the time and resources necessary to reach an agreement which is as detailed and comprehensive as this one. In this case each party had several attorneys and at least a half dozen technical experts working on the negotiations at any one time. Some of these individuals worked on nothing else during this period. Even assuming that all the parties can afford to devote this level of resource to a single case, the monetary or non-monetary value of reaching an accommodation must justify this expense. This approach may not be feasible in small cases where a year spent at the bargaining table would exceed the amount of time it would take to litigate the case, but until we know much more about cleaning up major hazardous waste disposal sites, it appears to be the only way to devise a comprehensive, effective remedial plan.

Second, the negotiation process should be used by the parties to educate one another on both the scientific justifications of their bargaining positions and their "policy" rationales for choice of remedy. Exposition of the parties' differences in scientific position will undoubtedly bring to the surface the uncertainties that the agreement (or the court) must resolve.

For example, at Hyde Park, the parties sought to determine what approach should be taken if, after implementing the containment system, wastes continued to migrate from the site. Their experts disagreed about the hydrological flow characteristics of the geological formations which underlie the site, relying respectively on different but arguably equally acceptable scientific interpretation of known data. Agreement on such characteristics, however, was essential before a potential remedy could be imposed. That uncertainty could not be resolved among the experts at the bargaining table on the basis of existing data. It was thus clear from the scientific disagreement that the solution must entail the acquisition of additional information. Thus, resolution of the specific problem was deferred by requiring comprehensive groundwater monitoring to create the data necessary to reconcile the differences between the experts, and creating the RRT mechanism to formulate a specific response addressed to the problem, defined and delineated by the data acquired. Moreover, had it not been possible to defer the issue in this fashion, the open discussion of the issues would at least have defined the issue for the court to resolve.

Each party's understanding of the scientific justification of the other's position enabled them together to construct a system designed to reconcile their points of difference. This cannot be done, however, unless there is adequate freedom of communication between the scientists on both sides. Thus the lead negotiator must strike a balance between maintaining control over the participatory process in the negotiatons and allowing open discussion of key matters among the experts at the table. In the Hyde Park negotiations this balance was aided by the free exchange of documentary information both before and during negotiation sessions and by the formal presentation of expert positions assisted by visual aids, followed by question and answer sessions and the presentation of supplementary materials in response thereto.

It is of equal importance for the parties to identify clearly their policy rationales for choosing particular remedies. Quite simply, it is easier to reach an agreement if both sides are open about their objectives. By clearly articulating their policy rationales, the parties put one another on notice of the ultimate boundaries within which a settlement must be shaped. If the rationales differ, but are not mutually exclusive and incompatible, a settlement might be reached despite the existence of scientific uncertainties about the underlying problems.

For example, the government might postulate that it requires the assurance of "perpetual" protection against migration of waste from a landfill site. The industrial party, on the other hand, may require assurance from the government that entry of a settlement will absolve it of liability within a stated time frame. This problem in Hyde Park suggested its own solution: monitoring of the site will continue until a certain number of years have passed with no evidence of continued migration of waste from the site. If monitoring shows that wastes continue to migrate, then Hooker must implement RRT to cure the problem. [12 ELR 15016] If monitoring indicates that the wastes have ceased to migrate, the program may end. Thus, while the government's paramount interest in protecting the public health and welfare and industry's concern for achieving the most cost-effective results, were not similar, they proved not mutually exclusive and incompatible once the underlying policy concerns were understood.

Having identified the scientific uncertainties and articulated their policy rationales to find a "neutral" terrain, the parties fashioned remedies based on resolution of the uncertainties that met both rationales for choice. RRT was an outgrowth of this process. It was not imposed on the settlement from a preconceived notion of what the remedies should be. Rather, the concept evolved in the negotiations from considering both the scientific uncertainties and the parties' rationales for choice.

The third lesson from the Hyde Park settlement is that the parties should be certain to obtain and fully address the views of the locally affected community. If this issue had been handled more adroitly by the parties in Hyde Park, it would probably have considerably shortened the 16-month period it took the court to decide upon the agreement. Although the parties in the Hyde Park case did attempt to do so, the process was handled clumsily and resulted in petitions for intervention being filed on behalf of area residents to challenge the approval of the agreement. As non-parties, the local community did not have the right to participate in the settlement negotiations. It simply made good sense, however, to try to ascertain how the local community felt its interests would best be served in resolving the underlying environmental dispute and to take those concerns into account in the negotiations. The Hyde Park parties assured the local citizenry that their concerns were being addressed before the final agreement was lodged for the court's approval, but they did not succeed in convincing local groups that their interests had been protected.

Settlement negotiations necessarily require a veil of privacy that, under most circumstances, insulates the substance of those negotiations from public view. To include a consideration of the explicitly stated interests of the local community, however, does not require the parties to open the entire process to public scrutiny. In the Hyde Park negotiations the parties erred on the side of caution, not asking the local town councils for their comments until the broad outline of the remedial package had taken form. Although that outline intentionally left room to address the interests of the local community, its presentation to the community at a relatively late point in the negotiations (about nine months into the process) carried with it the sense of a fait accompli. This sense would not have arisen and the settlement might have proceeded more smoothly if, earlier in the process, either Hooker, the governmental plaintiffs, or both had simply asked the town councils to explain what they would include in a remedial package. Such an invitation for comment would not have required the towns to participate in the negotiations, or even have disclosed the parties' positions at the bargaining table.

On the other hand, it can be argued that local community organizations may never feel fully protected unless they represent their own interests in an adversary fashion, and that an invitation for comment without an accompanying invitation to participate in the negotiations will only result in petitions for intervention being filed earlier than they were in this case. Notwithstanding the difficulty of determining the best point in time to invite community comment, there can be no gainsaying the need for it at some point in the settlement process.

As it turned out, the participation of local groups by their petitions for intervention and opposition to the Hyde Park agreement may have been the catalyst for Judge Curtin's well-reasoned opinion. The active intervention allowed by the court required a discussion and exposition of the scientific merits of the settlement agreement which eventually resulted in a judicial opinion which surfaced and addressed issues that would otherwise have lain dormant. Although the intervenors' arguments did not move the judge to require modification of the agreement, had the parties not demonstrated that the agreement adequately addressed the concerns of the local groups, the court might not have approved it.

In conclusion, it is probably not unjustified to predict that the Hyde Park decision will be a landmark precedent in the resolution of hazardous waste clean-up disputes. Both Judge Curtin's decision and the agreement itself should provide standards against which to measure proposed remedies in subsequent cases. Both the agreement and the negotiation process from which it was developed, were successful in large part because the parties worked hard to educate one another concerning both the scientific justifications of their bargaining positions and their policy rationales for choice of remedy, resulting in a flexible system that could adapt to unforeseen future problems, which are the rule in hazardous waste cleanup today.

1. Civ. 70-899C 12 ELR 20701 (E.D.N.Y. Apr. 30, 1982) (hereinafter cited as "Hyde Park decree").

2. 42 U.S.C. § 6973, ELR STAT. & REG. 41921.

3. In June 1980, Hooker successfully moved to join the State of New York as a party. The State was eventually aligned as a party plaintiff and joined the parties at the bargaining table.

4. "Still bottoms" are comprised of the residue byproducts that form at the bottom of the tanks and vats in which the chemical product itself, in this instance trichlorphenol, is distilled.

5. Dioxins are associated with the waste products of, among the other products, various agricultural and pharmaceutical chemicals. Although many different dioxin compounds are known, the one about which most concern has arisen, and which is believed present in the Hyde Park Landfill is 2,3,7,8-tetrachlorodibenzo-p-dioxin (2,3,7,8-TCDD), or "TCDD," the most toxic dioxin isomer. A recent EPA-commissioned study of dioxins stated, "On a molecular basis 2,3,7,8-TCDD is perhaps the most poisonous synthetic chemical." M. ESPOSITO, T. TIERNAN, & F. DRYDEN, DIOXINS 187, U.S. Environmental Protection Agency, Industrial Environmental Research Laboratory (Cincinnati Nov. 1980).

6. Hyde Park decree, 12 ELR at 20704.

7. The prescribed clean-up measures provide either for capping or excavation of Bloody Run, depending on the outcome of a study and the cleaning of the gorge face by enclosed high pressure water jets.

8. Stipulation and Judgment Approving Settlement Agreement, paragraph 4a, 12 ELR 20710.

9. Id., paragraph 4b, 12 ELR at 20711.

10. Hyde Park decree, 12 ELR at 20705.

11. Id.

12 ELR 15013 | Environmental Law Reporter | copyright © 1982 | All rights reserved