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ORGANIZATIONS UNITED FOR ECOLOGY v. BELL

January 30, 1978

ORGANIZATIONS UNITED FOR ECOLOGY, et al., Plaintiffs
v.
GRIFFIN B. BELL, Attorney General of the United States, et al., Defendants



The opinion of the court was delivered by: MUIR

 MUIR, District Judge.

 I. Introduction.

 Plaintiffs filed this action on August 10, 1977, alleging that Griffin B. Bell, Attorney General of the United States, Norman A. Carlson, Director of the United States Bureau of Prisons, Department of Justice, and Eldon Jensen, Superintendent of Allenwood Prison Camp, had violated the National Environmental Policy Act, (sometimes hereafter NEPA), 42 U.S.C. A. §§ 4331 et seq. because they had not prepared an Environmental Impact Statement (sometimes hereafter EIS), before the decision was made to grant a permit allowing the Commissioners of Lycoming County, Pennsylvania to build a landfill on land owned by the United States of America and used in connection with the operation of the Allenwood Prison Camp. On October 31, 1977, this Court granted the motion of the Department of Environmental Resources of the Commonwealth of Pennsylvania (sometimes hereafter DER) to intervene as a Defendant. On November 9, 1977, this Court granted the motion of the Lycoming County Commissioners to intervene as a Defendant to this action. The Plaintiffs request that the Court enjoin construction and use of the landfill at the Allenwood Prison Camp for the disposal of solid wastes until an Environmental Impact Statement is prepared by the United States Bureau of Prisons.

 On November 1, 1977, a pre-trial conference was held to determine what issues should be decided by the Court in order to rule upon the Plaintiffs' request for an injunction. The parties agreed that the Court should decide the following five issues:

 (1) Standing of the Plaintiffs to bring this action;

 (3) Whether the permit of June 5, 1973 was a major federal action significantly affecting the human environment;

 (4) Whether the procedure used by the Bureau of Prisons in allowing the Environmental Protection Agency (sometimes hereafter EPA) to conduct the environmental review met the Bureau's responsibility under the applicable statute; and

 (5) Whether the equities are in favor of the project as opposed to the Plaintiffs' claim.

 This case was originally listed for trial in November, 1977. However, because the entire month of November was devoted to the trial of a single case, the above-captioned action was transferred to the January, 1978 list. The trial concerning the issue of laches commenced before the undersigned judge sitting without a jury on January 12, 1978 and ended on January 20, 1978, a period of seven trial days. Counsel for the Plaintiffs agreed that this hearing was to be both for the Plaintiffs' request for a preliminary injunction and a permanent injunction. The Court informed the parties on the last day of trial that if a decision favorable to the Plaintiffs concerning laches was rendered, the next issue would be tried in March, 1978 because the Court is scheduled to try 22 cases in Scranton in February, 1978. The following are the Court's findings of fact, discussion, and conclusions of law concerning laches.

 II. Findings of Fact.

 1. In 1942 and 1943 the United States of America acquired title to approximately 4,238 contiguous acres of land located in Brady Township, Lycoming County, and Gregg Township, Union County, Pennsylvania. The land was subsequently made a part of the Federal Prison System of the Department of Justice and is generally referred to as "Allenwood Prison Camp." (Undisputed)

 2. In 1969, Federal Bureau of Prison officials initiated planning to develop a sanitary landfill at Allenwood Prison Camp for the exclusive use of Allenwood Prison Camp and the Federal Penitentiary at Lewisburg, Pennsylvania. (Undisputed)

 3. On or about February 13, 1972, the Bureau of Prisons entered into a contract with Gilbert Associates, Inc. to investigate possible sites for a landfill at Allenwood Prison Camp to receive the solid wastes from the Camp and from the penitentiary at Lewisburg.

 4. On or about February 29, 1972, the Bureau of Prisons ordered ten staff houses located in close proximity to the proposed landfill site to be vacated for razing. (Undisputed)

 5. On April 27, 1972, the Director of the Bureau of Prisons cited as another factor which entered the picture with regard to disposition of the houses that:

 
"One of the sites under consideration for the possible regional sanitary landfill requested by Susquehanna Economic Development Association (SEDA) comes dangerously close to the present housing site. If the regional landfill concept is ultimately approved and located at the proposed prime site, it would make the present housing area somewhat undesirable." (Undisputed)

 6. On March 27, 1972 a meeting was held in the office of the Bureau of Prisons' Supervising Architect, George W. Aderhold, attended by representatives of SEDA, of the Leonard S. Wegman Company, Inc., consulting engineer for the Association, and of the Pennsylvania Department of Environmental Resources, at which the Bureau of Prisons advised that Allenwood Camp lands would be made available if the Bureau Director approved the permit subject to appropriate environmental review and approval by relevant federal and state agencies. (Undisputed)

 7. On March 29, 1972, SEDA wrote to the Bureau of Prisons stating that the envisioned landfill at Allenwood would be used as a deposit site for municipal solid waste generated by "at least 250,000 of our region's population." SEDA further stated: "In this manner we could foresee as much as 900 tons per day of waste materials coming to the camp site." (Undisputed)

 8. In April, 1972 certain residents of the townships in close proximity to the Allenwood Prison Camp wrote to the Bureau of Prisons expressing concern over the establishment of a regional municipal landfill. (Undisputed)

 9. By letter dated June 19, 1972, addressed to the Bureau of Prisons, the Bureau's engineers, Gilbert Associates, Inc., concluded as follows:

 
"In summary it is the opinion of the consultant that Site B can be made into an acceptable sanitary landfill facility provided certain measures are taken to prevent surface and ground water pollution. Without such controls, however, the site would be unacceptable."

 The letter also observed:

 
"As noted in the report, we feel that Site B can be used as a regional facility provided that a number of measures are taken to prevent ground and surface water pollution."

 (Undisputed)

 10. Under date of October 16, 1972, Gilbert Associates, Inc. submitted both to the Lycoming County Commissioners and to SEDA a report on the economic feasibility of using a certain site at the Allenwood Federal Prison Camp as a regional sanitary landfill facility. (Undisputed)

 11. The project involved is the Lycoming County Solid Waste Facilities Complex, commonly known as the Allenwood Sanitary Landfill, situated on the south slope of Penny Hill west of U.S. Route 15 in Brady Township, Lycoming County, Pennsylvania. (Undisputed)

 12. The project is being constructed by the Lycoming County Commissioners as a result of the obligations incurred under the Lycoming County Solid Waste Management Plan and contracts between municipalities and the Board of County Commissioners.

 13. Obligations incurred under the Lycoming County Solid Waste Management Plan and the contracts with municipalities require the County Commissioners to develop those facilities and manage a system which will solve the solid waste problems in Lycoming County.

 14. The Lycoming County Commissioners, in planning and constructing this landfill, have acted on behalf of certain municipalities in the county to comply with the mandates of the Pennsylvania Solid Waste Management Act, Act of July 31, 1968, P.L. 788, No. 241 § 1, 35 P.S. §§ 6001 et seq. which is administered by DER.

 15. The project site constitutes some one hundred thirty (130) acres, more or less, as referenced in the extract of the U.S. Geodetic Survey Map shown as Attachment "A" to the Bureau of Prisons Permit, with the ownership of said site vested in the Federal Bureau of Prisons, United States Department of Justice. (Undisputed)

 16. The Lycoming County Solid Waste Facilities Complex is being constructed pursuant to the provisions of a permit to use land owned by the Bureau of Prisons, issued by the Bureau on June 5, 1973. The permit agreement contained the following language in paragraph 6:

 
"THAT the Commissioners shall be permitted to use such lands for a public landfill and related uses (solid waste processing and leachage [ sic ] treatment), conditioned upon the approval of said site and operation, by the Pennsylvania Department of Environmental Resources and the Federal Environmental Protective [ sic ] Agency, so long as such site, or any additional sites added thereto, shall be needed as landfill, and so long as such landfill continues to have the approval of the Pennsylvania Department of Environmental Resources and the Federal Environmental Protective [ sic ] Agency." (Undisputed)

 17. The landfill has been and will be developed in fields of several acres each.

 18. The project involved arose in part because of the need for the Federal Bureau of Prisons to develop a proper disposal facility for wastes generated at the Allenwood Federal Prison Camp and at the United States Penitentiary, at Lewisburg, Pennsylvania. (Undisputed)

 20. Under date of February 11, 1972, Congressman Schneebeli referred the W.R. Kauffman letter of February 1, 1972 to Norman A. Carlson, Director of the Federal Bureau of Prisons. (Undisputed)

 21. Under date of March 6, 1972, a letter was sent to W.R. Kauffman from the Federal Bureau of Prisons scheduling a meeting for 2:00 P.M. on March 27, 1972 in Washington, D.C. to discuss solid waste disposal problems. (Undisputed)

 22. As early as April of 1972 articles appeared in both the Williamsport Sun-Gazette and Grit newspapers indicating the possibility of a sanitary landfill being constructed on Allenwood Federal Prison Camp lands. (Undisputed)

 23. The White Deer Valley Citizens Committee was aware of the fact that the Federal Bureau of Prisons was considering making available Allenwood Camp lands to Lycoming County for the purpose of a sanitary landfill as early as April of 1972.

 24. Under date of April 7, 1972, Gilbert Associates, Inc. submitted to the Federal Bureau of Prisons a preliminary engineering report concerning the development of a sanitary landfill at the Allenwood Federal Prison Camp. (Undisputed)

 25. Plaintiffs include individuals who have been members of the White Deer Valley Citizens Committee and Organizations United for Ecology (sometimes hereafter OUE). (Undisputed)

 26. Plaintiff OUE is an organization which includes the White Deer Valley Citizens Committee. (Undisputed)

 27. Plaintiffs were aware, or should have been aware, during 1973 that the Director of the Federal Bureau of Prisons had actually granted a permit to the Lycoming County Commissioners for a site on Allenwood Federal Prison Camp lands to be used as a sanitary landfill to be constructed and operated by the Commissioners and knew, or had reason to know, during 1973, of the contents of the permit.

 28. Plaintiff Organizations United for Ecology was aware of the Bureau of Prisons permit to the Lycoming County Commissioners at its second meeting, on June 4, 1974. (Undisputed)

 29. Plaintiff Organizations United for Ecology knew, as of August 8, 1974, that the Federal Bureau of Prisons had not prepared an Environmental Impact Statement (EIS) prior to executing the permit with the Lycoming County Commissioners. (Undisputed)

 30. Plaintiff Organizations United for Ecology was aware as early as August 5, 1974 of the present cause of action alleging violations of the National Environmental Policy Act, 42 U.S.C.A. §§ 4331 et seq. (NEPA) by the Federal Bureau of Prisons. (G38)

 31. All Plaintiffs were aware, or should have been aware, at least as early as August of 1974, of the complaint that the Federal Bureau of Prisons was allegedly not in compliance with the National Environmental Policy Act.

 32. To this date, the Bureau of Prisons has not prepared an EIS. (Undisputed)

 33. Attorney John C. Sullivan, then counsel for Plaintiffs, advised the members of OUE by letter shortly before OUE's meeting of August 26, 1974 that "It would be necessary to file suit on (sic) the federal court to deter further steps to construct a landfill prison camp site." (Minutes 8/26/74 O.U.E. meeting, p. 4)

 34. A motion to accept the attorney's advice was carried at the same meeting, (Minutes 8/26/74 O.U.E. meeting, p. 4) and this motion was never rescinded.

 35. Plaintiff Organizations United for Ecology complained at least as early as August of 1974 that the Federal Bureau of Prisons was not in compliance with the National Environmental Policy Act. (Undisputed)

 36. To this date, the Bureau of Prisons has not prepared a negative declaration. (Undisputed)

 37. On October 18, 1974, the Bureau of Prisons requested that the Environmental Protection Agency "act as Federal lead agency on all matters ...


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