However, I hope the door isn't closed on this possibility. I am hoping that the Commissioners will pursue it further. I feel that it would be a waste of good Federal property in Muirkirk when there is other private property available that already has been defaced, and would probably be improved by a sanitary land fill. Mr. Chairman, there are several legal points involved in this issue which I wanted cleared up before I reached a decision about the Muirkirk proposal. Briefly, they involve the rights of citizens of Prince Georges County to seek relief in the courts if the sanitary land fill became a public nuisance. Some time ago I was asked by an official of the town of Cheverly to get a legal opinion on the possibility of the town seeking an injunction against the open-air burning at Kenilworth dump. At my request, the American Law Division of the Library of Congress considered the question and forwarded an affirmative opinion, with the usual apprehensions. Briefly, the opinion stated "that the question on seeking temporary injunctive relief from the courts turns on the town of Cheverly establishing in effect, that the air pollution menace is the greater of two evils: the evil of the health hazard from accumulating refuse and the evil of air pollution from the burning of refuse." At this point I would like to offer for the record the Library of Congress legal opinion. (The document referred to follows:) OPINION OF LIBRARY OF CONGRESS, AMERICAN LAW DIVISON, ON INJUNCTIVE RELIEF FOR TOWN OF CHEVERLY Subject: Can the Incorporated Town of Cheverly, Md., File for Injunctive Relief To Enjoin the District of Columbia from the Open-air Burning of Trash at Its Kenilworth Dump? As per our telephone conversation concerning the above problem, this is to advise you that under the provisions of D.C. Code § 1-102, the District of Columbia is constituted a body-corporate for municipal purposes with powers, among others, "to sue and be sued, plead and be impleaded". In consequence of this provision, it would appear that the incorporated town of Cheverly, Maryland, could file suit in the appropriate courts of the District of Columbia to enjoin the latter from the apparent nuisance of "open-air" trash burning at the Kenilworth dump, provided, however, that, under its corporate charter, the town of Cheverly, in turn, has a charter power to sue and be sued. As to the burden of proof required, it is presumed that the basic action will be one for injunctive relief to restrain the operation of a public nuisance. In this context, and generally speaking, it would appear that on an application to the court for a preliminary injunction, the plaintiff must establish that the benefits which will accrue to him if the preliminary injunction is granted greatly exceed the hardships that will befall the defendant upon the granting thereof; otherwise, in balancing the hardships, if the hardships resulting to the defendant greatly exceed any benefits which will accrue to the plaintiff from the granting of temporary relief, the courts will usually refrain from interfering with the defendants' operations until there can be had a full and complete hearing on the pleadings and proofs. Upon a hearing of the application for the injunction to restrain a public nuisance, the central issue is whether or not a right is being invaded, i.e., questions concerning the presence of an actual injury and damages are not essential elements. In such a case, the injunction will issue upon a clear showing that the act or thing threatened would result in the invasion of a public right, no matter how slight. In the establishment of these matters relating to the nuisance of open-air garbage burning, it must be noted that such operation is not a nuisance per se. To make it so, it should be shown and proven that said operation results in offensive odors, or smoke or gas which affects a populous district, or that there is danger of fire spreading to neighboring property. (Moulton v. Fargo, 39 N.D. 502, 167 N.W. 717; Nashville v. Mason, 137 Tenn. 169, 192 S.W. 915.) As to the degree of effect upon the surrounding areas that such elements of the nuisance must have, there appears to be no general rule affording a precise method of measurement. All that can apparently be said in this respect is that if the effect is slight the hardship to the plaintiff town of Cheverly must also be slight and the balance of the hardships involved would be weighted in favor of the defendant in the absence of substantial facts demonstrating the contrary. The next legal question was propounded by the District Commissioners and the opinion was written by Charles Duncan, the Corporation Counsel. It was based on the assumption that the District received the necessary Federal funds to proceed with the sanitary landfill at Muirkirk and the question was "Is there any legal impediment to the District's disposing of some of its refuse in the manner described above (sanitary land fill at Muirkirk) ?” Inasmuch as Mr. Duncan's answer is rather lengthy I shall just quote his conclusions. He said that: I therefore conclude that the District might be subject to being enjoined from engaging in the proposed refuse disposal operation if it should be determined to the satisfaction of a court that such operations are creating a nuisance, whether it be in the jurisdiction in which the landfill operation is carried on, in a jurisdiction through which the refuse is transported, or in the District. However, such a determination must be based on substantial evidence, and the injunction would only affect disposal operations to the extent necessary to alleviate the nuisance. I note, in passing, that I have been informed that present plans for this refuse disposal include transportation of the refuse in covered trucks over main truck routes and daily covering over of the refuse at the landfill, thereby reducing to a minimum the possibility of the creation of a nuisance. Under such circumstances, it would appear doubtful that a case could successfully be made out for an injunction on the basis of a nuisance having been created by the District of Columbia. He finally concluded that— On the basis of the foregoing, that there is no legal impediment to the disposal of refuse by the District of Columbia in a sanitary landfill in an adjoining jurisdiction. If, however, the operation should be found by the court to constitute a nuisance, there is the possibility that an injunction will lie against the District's disposing of its combustible refuse in this manner. Mr. Chairman, I want to make it clear that I am not recommending that any legal action be taken against the District in this matter. I am citing these opinions in order to demonstrate that if the land fill operation is not carried out in a manner meeting the highest possible standards for protection of the public health and welfare in that area of the county, the homeowners in that area may have their rights protected through the possibility of court relief. The third legal question deals with the acquisition of the Muirkirk site itself. It might affect it if it is used, the question of later use of the land, because of the enabling legislation for the purchase of the land for which it was purchased. I think the idea of off-site recreational areas are fine, but I am not so certain the District government is going to go out there and operate a golf course and recreational area for the people of Prince Georges County unless we make that part of the consideration. This goes back to the District Appropriations Act of 1923, Public Law 67-457, which directed the President of the Board of Trustees of the National Training School for Girls to "purchase a tract of land of not more than 160 acres, situated in the District of Columbia or in the State of Maryland or in the State of Virginia, as a site for the use of said school ***." The law said that the title to the tract would be in the name of the United States and it is at this time. I asked the Comptroller General's office to give me an informal opinion about the legality of the District using this property as a sanitary land fill. The Comptroller General's office replied that, because of short notice and lack of jurisdiction, it could not provide a thorough answer. The question, in large measure, rests on the language of the title itself. and I have not seen the title. The Comptroller General's office suggested that the question I raised would properly be one for the Attorney General to determine, and, in order to clear up any possible questions about the proposed use of the Muirkirk site I strongly recommend that the subcommittee and the District of Columbia government secure an opinion on this point. Nevertheless, I would like to insert in the record the informal statement of the Comptroller General's office. (The document referred to follows:) INFORMAL OPINION OF COMPTROLLER GENERAL'S OFFICE ON LEGAL USE OF Question. May land located in Muirkirk, Maryland, which was originally ac quired for use by the National Training School For Girls, with title in the United States, be used by the D.C. Government for a sanitary fill? In the act of February 28, 1923, 42 Stat. 1327, 1358, P.L. 67-427, there was appropriated $62,000 to enable the President of the Board of Trustees of the School to purchase land and construct buildings for the use of the National Training School for Girls. The act further provided that title to the land should be taken in the name of the United States; and that the Attorney General could acquire the land by condemnation if necessary, the costs thereof to be paid out of the $62,000. This appropriation act was a D.C. Appropriation Act, composed of 60 per cent D.C. revenues and 40 percent Federal funds (Federal payment to D.C.). Also, it could be that title to land was vested in Federal Government to avert a legal question in case condemnation was necessary. Section 3-101, D.C. Code (Act of March 16, 1926, 44 Stat. 108) abolished Board of Trustees of National Training School (School) for Girls. Section 3-103 of the same Code created a Board of Public Welfare for the D.C. transferred to such Board all powers, authority and property, duties and obligations formerly vested in the Board of Trustees of the School. Section 32-902 of the D.C. Code, as amended in 1926, provides, in effect, that upon the dissolution of the Board of Public Welfare, or if it should cease for a space of six months to maintain a training school for girls, all the property. real and personal (of the corporation) shall rest in the United States. It should be noted that section 32-309 is concerned with Training School within D.C. Section 32-907 of the D.C. Code, provides that all provisions relating to National Training School for Boys (chapter 8 of title 32, D.C. Code) not inconsistent with provisions of chapter 9 of Code (Girls School provision) are for application to Girls School. Section 32-805 of D.C. Code provides that Board of Trustees of National Training School for Boys shall hold property in a trust for United States. In 1939 Board of Trustees for Boys School was abolished and all its functions turned over to Department of Justice to be administered by Bureau of Prisons. The D.C. Board of Public Welfare which administered the Girls School was abolished by Reorganization Order No. 58, as amended (issued in accordance with Reorganization Plan No. 5 of 1952). Order No. 58 established under the direction and control of a D.C. Commissioner a Department of Public Welfare and transferred the functions of the former Board of Public Welfare to the Department. H We understand that the funds made available in the D.C. Appropriation Act of 1923, were used to acquire a site and construct buildings at Muirkirk, Maryland, for use as a Training School for Girls. Apparently at a later date the property was not needed for such a purpose. However, the appropriation act says nothing as to the use of the property if eventually not needed for a training school for girls. Further, the Department of Public Welfare, the successor to the Board of Public Welfare (successor to the Board of Trustees) was never dissolved, nor are we in a position to state that the Department of Public Welfare has ceased to maintain a training school for girls (other than at Muirkirk) or a substatute for such a school. Further, since legal title to the land at Muirkirk, is in the United States, it does not appear it is held in trust for the United States. However, since D.C. funds, in effect, were used to purchase the property, it may be argued that equitable title is in the D.C. and only bare legal title is in the United States. In any event, an authoritative decision as to title or at least as to whether the D.C. may use the land for any purpose it wishes, would appear to be a question for the Attorney General to decide rather than this Office. Mr. Chairman, this about concludes my presentation, except for a statement of my position on the issue. First and foremost, I feel that there has been a lack of communication and resultant misunderstanding between the District government and the residents of the Muirkirk-Beltsville-Vansville Heights area on the proposed sanitary landfill. I strongly recommend that the District officials who are most knowledgable about this proposal go directly to the homeowners of this section of Prince Georges County and give them candid and complete answers to their questions. Second, I am convinced that the homeowners in the area will have their rights protected through the courts if a public nuisance results from this proposed operation. I believe that we all stand firmly opposed to the closing down of one public nuisance and health menace at the Kenilworth Dump in order to open another one a Muirkirk. Third, I do believe that the District Commissioners are sincere in trying to do everything possible to make this proposed sanitary landfill an example for the region, and to avoid infringing on anyone's privacy, land values, and health and welfare in the Muirkirk area. They have assured me of no burning in the day-to-day operation; that the trucks will not disturb private homes and that the landfill itself will be shielded from public view by a thick borderline of trees; that the landfill itself has a short lifespan and that at its termination some consideration will be given to other public uses, possibly recreational. However, before the District requests a supplemental appropriation for this project, I strongly recommend that it secure an opinion on its legal authority to use Muirkirk for this purpose and that a program of public information at the grassroots level be initiated immediately. If these conditions are fulfilled properly and promptly I believe that we can move ahead to stop the open air burning menace at Kenilworth Dump and provide a temporary means-without treading on homeowners' rights of disposing of refuse until the new incinerator is opened and an intelligent approach to waste disposal for the region is evolved. Senator TYDINGS. Thank you, Congressman Machen for being with us. I can assure you that as long as the junior Senator from Maryland is on this committee, and I think I speak for the junior Senator from Virginia, too, we are not going to sit by and see the District of Columbia make another mess of their waste disposal projects like they have at the Kenilworth Dump. As more of the facts are unearthed the more amazed I am at the great lack of awareness of modern ways to handle waste disposal and air pollution which has been exhibited by the District government. I can assure you that we did not get into this to see one horror perpetuated someplace else, particularly in Maryland or Virginia. Mr. MACHEN. I concur in that. I think the real problem is the continual nuisance of the burning now that has got to be expeditiously closed out. I regret not to be able to go on your tour. We are meeting in a briefing session at the armed services. Senator TYDINGS. For the record I do not think we are going to be through in view of the session and votes this afternoon in time to take the tour. We have some very important witnesses yet to be heard from and the testimony is taking a little longer than I thought. We are delighted to have had you with us, Congressman Machen. I would like to have Mr. Sutton Jett of the U.S. Park Service, come forward. Senator Spong will conduct the hearings for the next couple of minutes. Mr. MACHEN. Thank you very much. (Senator Spong assumed the chair.) Senator SPONG. All right, Mr. Jett. STATEMENT OF T. SUTTON JETT, REGIONAL DIRECTOR, NATIONAL CAPITAL REGION, NATIONAL PARK SERVICE; ACCOMPANIED BY ROBERT C. HORNE, ASSOCIATE REGIONAL DIRECTOR OF THE NATIONAL CAPITAL REGION, AND G. EARLE STEELE, SUPERINTENDENT, EAST NATIONAL CAPITAL NATIONAL PARKS Mr. JETT. Mr. Chairman. My name is T. Sutton Jett, regional director, National Capital region, National Park Service in the Washington metropolitan area. I have with me two of my associates. I would like to introduce them. To my immediate left, Mr. Robert C. Horne who is the associate regional director of the National Capital region and sitting with him is G. Earle Steele, Superintendent, East National Capital National Parks. Historically, the creation of much of the existing park land within the Washington metropolitan area has been achieved through filling operations, utilizing fill material which would not prohibit or greatly restrict the type of park use made of these lands in future years. Some excellent examples of such lands include East and West Potomac Parks and that portion of the Mall west of the Washington Monument grounds. Other examples of park land made through filling operations are Gravelly Point, the enlargement of Daingerfield Island and much of the park land on both sides of the Anacostia River. In addition, lands used by other agencies have also been developed in a similar manner and examples would include portions of National Airport and the Bolling-Anacostia area. In June 1942, the District of Columbia requested permission to burn domestic trash in upper Anacostia Park. This permission was granted in September 1942 considering the great influx of people, increased trash and the scarcity of materials for construction of incinerators due to the war effort of World War II. The rapid growth following the |