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United States v. Vertac Chem. Corp.

Citation: 10 ELR 20709
No. Nos. LR-C-80-109, -110, 489 F. Supp. 870/14 ERC 1587/(E.D. Ark., 05/12/1980) Preliminary injunction granted

Granting motions for a preliminary injunction filed by the United States and the State of Arkansas, the court concludes that the discharge of dioxin from a pesticide manufacturing facility constitutes "imminent and substantial endangerment to the health of persons" under the Federal Water Pollution Control Act (FWPCA) and the Resource Conservation and Recovery Act (RCRA) and orders remedial measures. Focusing on § 504 of the FWPCA and § 7003 of RCRA, which permit the Environmental Protection Agency to restrain immediately the discharge of pollution presenting an "imminent and substantial endangerment," the court determines that although there is no proof of actual harm caused by the low levels of dioxin escaping from the premises, under a scientifically acceptable but unproved theory dioxin may create a serious risk of harm to the public. This risk falls within the intended meaning of the term "endangerment," which requires no actual injury or proof with certainty but requires only threatened danger; thus a preliminary injunction is justified. Under the same reasoning, the court rules that the defendants also violated the Arkansas Hazardous Waste Management Act, which protects against the "imminent and substantial hazard to the health of persons or the environment." There is no violation of the Refuse Act, however, since defendant is not discharging wastes into a navigable water. Although defendant had ceased production of substances containing dioxin, current discharges from defendant's facility continue to contain traces of that chemical. Nevertheless, the court declines to order that all discharges of dioxin be halted, since such an order would lead to closure of the plant. Instead, defendant must implement a set of protective measures and establish monitoring systems which eventually will eliminate the facility's threat to the public health.

Counsel for Plaintiffs
Ronnie Shorenstein Alkire
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-3332

Markham Lester, Ass't U.S. Attorney
P.O. Box 1229, P.O. and Cthse, Bldg., 600 W Capitol St., Little Rock AR 72203
(501) 378-5342

Richard H. Mays, Paul N. Means Jr.
Arkansas Department of Pollution Control and Ecology
8001 National Drive, Little Rock AR 72209
(501) 371-1701

Counsel for Defendants
John P. Gill, David Allan Gates
Mitchell, Williams, Gill & Selig
400 Gaines Pl., 3d and Gaines Sts., Little Rock AR 72201
(501) 376-3151

Alston Jennings, Gus B. Walton Jr.
Wright, Lindsey & Jennings
2200 Northern Bank Bldg., Little Rock AR 72201
(501) 371-0808