United States v. Hooker Chemical & Plastics Corp.

607 F. Supp. 1052, 22 ERC 2091, 15 Envtl. L. Rep. (Envtl. Law Inst.) 20801, 22 ERC (BNA) 2091, 1985 U.S. Dist. LEXIS 20732
CourtDistrict Court, W.D. New York
DecidedApril 15, 1985
DocketCIV-79-988C
StatusPublished
Cited by21 cases

This text of 607 F. Supp. 1052 (United States v. Hooker Chemical & Plastics Corp.) is published on Counsel Stack Legal Research, covering District Court, W.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Hooker Chemical & Plastics Corp., 607 F. Supp. 1052, 22 ERC 2091, 15 Envtl. L. Rep. (Envtl. Law Inst.) 20801, 22 ERC (BNA) 2091, 1985 U.S. Dist. LEXIS 20732 (W.D.N.Y. 1985).

Opinion

CURTIN, Chief Judge.

I.

The United States Environmental Protection Agency [EPA] commenced this action in December, 1979, against Hooker Chemicals and Plastics Corporation and related corporate entities. 1 Hooker then moved to have the State of New York [the State] joined as a party defendant. Later, the State was realigned as a plaintiff. The State filed its complaint in June, 1980. The City of Niagara Falls [the City] is also a defendant in this case.

This action was commenced for the purpose of remedying the dangerous conditions existing at a chemical dump site in Niagara Falls, New York, known as the S-Area Landfill. The S-Area is one of many chemical dump sites in the City. Indeed, this case is only one of four lawsuits against Hooker filed on the same day. 2 Since then, other environmental lawsuits concerning the Niagara Falls area have been filed. What makes this case particularly serious is the possibility that chemicals migrating from S-Area will contaminate the City’s drinking water supply. S-Area is very close to the Niagara River, which is the source of the City’s drinking water. The Niagara Falls Drinking Water Treatment Plant is just to the east of the landfill.

A settlement agreement and a proposed judgment approving the settlement have been filed with the court. At this time, the court must decide whether this agreement ought to be approved.

II.

The Landfill Site and the Water Treatment Plant

The S-Area Landfill site is a seven-acre section of land situated upon the premises *1054 of Hooker’s chemical manufacturing plant on Buffalo Avenue in Niagara'Falls, New York. The landfill is bounded on the north by Adams Avenue and on the west by property owned by Niagara Mohawk Power Corporation. The southern boundary consists of a power line easement and the Robert Moses Parkway. The Niagara River is just south of the parkway and is only 400 feet from the landfill’s southern boundary. In fact, the S-Area is situated upon land which was reclaimed from the Niagara River in the late 1930s and early 1940s. The factor that distinguishes this lawsuit from the others filed against Hooker is the proximity of the Niagara Falls Drinking Water Treatment Plant to the landfill site, Only 53rd Street, S-Area’s eastern boundary, separates the plant from the landfill.

Hooker used the landfill between 1947 and 1961 as a repository for chemical wastes and thereafter as a site for washing equipment. The S-Area was closed in 1975. Hooker estimates that 63,000 tons of chemical wastes, primarily chlorinated hydrocarbons used to manufacture plastics, pesticides, and chemical intermediates, were dumped at S-Area during this period. About 40 percent of the chemical wastes are non-aqueous phase liquids [NAPL]. NAPL are liquids which are very dense and essentially incapable of mixing with water. There are 15 compounds which make up about 99 percent of all NAPL. The potential for NAPL migration is a major area of concern in the settlement agreement.

Geologically, the area of the landfill consists of “overburden” and “bedrock.” The overburden consists of three layers of materials which differ greatly in thickness and permeability. At the top of the overburden is a porous mixture of wood, cinders, rocks, and gravel, mostly manmade. Underlying this is a layer of sand and silts approximately 16 feet thick. Below this is a layer of clay till. This bottom layer of the overburden is of low permeability, but it varies greatly in thickness. It is thicker in the northern portion of the landfill and thinner towards the south in the direction of the Niagara River. It also has areas of “discontinuity.” Discontinuities are cracks and holes through which chemicals deposited in the site can flow into the bedrock below. The direction of groundwater flow in the overburden is to the south, towards the river.

The first layer of bedrock is called the Lockport Dolomite and is about 125 feet thick. The upper 10-15 feet of the Lock-port Dolomite contains many fractures and is therefore highly permeable. See, e.g., Government Exhibit [GX] # 13. There are fewer fractures, and the bedrock is less permeable, in the lower regions of the Lockport Dolomite. Below the Lockport Dolomite is a rock formation called the Rochester Shale. The Rochester Shale is about 60 feet thick in the area of the landfill and has a very low permeability.

The slope of the bedrock is southward at a rate of about 30 feet per mile. However, the water within the bedrock flows north, away from the river, and slightly to the west. The direction of the water flow, opposite that of the bedrock slope, is explained by the slope of the planes within the bedrock through which the water flows.

The Niagara Falls Drinking Water Treatment Plant is located across 53rd Street, just east of the S-Area. Its facilities include intake shafts and tunnels in and near the Niagara River, plus the treatment facilities located to the east of the landfill. The system provides water for about 70,000 persons.

There are actually three intake and tunnel systems now in place. One consists of a vertical intake in the East Branch channel of the Niagara River. This intake is connected to a 48-inch steel pipe laid in- the overburden beneath the river. The overburden pipe is laid in a north-south direction and is connected to the forebay of a raw water pump station located just north of the Robert Moses Parkway. The distance from the East Branch intake to the pump station forebay is about 1800 feet. The East Branch overburden system was used until 1937. GX 57, App. 1.

*1055 A second intake system was built in 1937. It consists of a vertical intake structure in the East Branch connected to a tunnel laid 30 feet into the bedrock beneath the river. The tunnel is shaped like an inverted horseshoe and is 5 feet wide and 5V2 feet high. The tunnel is connected to a vertical shoreshaft located just north of the Robert Moses Parkway and adjacent to 53rd Street. The raw water pump station is a short distance to the north of the shoreshaft. The shoreshaft is connected to the pump station forebay by a raw water pipe laid in the overburden.

In 1953, the bedrock tunnel was extended approximately 3,500 feet south through the bedrock underlying the river. The combined length of the 1937 and 1953 bedrock tunnels is about 5,250 feet. The extended tunnel is connected to another vertical intake shaft in the river’s “Emerald Channel.” See, GX 57, App. 1. The East Branch intake which had been built in 1937 was sealed off in 1953 due to bacteriological contamination. The City’s water supply was thereafter drawn from the Emerald Channel intake. Use of the Emerald Channel bedrock system was discontinued in April 1983.

In August 1978, a chemical substance was discovered in the shoreshaft adjacent to 53rd Street and also in the forebay of the raw water pump station. This discovery prompted the City to resume use of the overburden intake and pipe system in 1979. (The shoreshaft is not part of the overburden system.) The overburden system supplied the City with about 80 percent of its water, with the bedrock system supplying the other 20 percent.

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Bluebook (online)
607 F. Supp. 1052, 22 ERC 2091, 15 Envtl. L. Rep. (Envtl. Law Inst.) 20801, 22 ERC (BNA) 2091, 1985 U.S. Dist. LEXIS 20732, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hooker-chemical-plastics-corp-nywd-1985.