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Missouri v. Independent Petrochemical Corp.

ELR Citation: 27 ELR 20594
Nos. 96-1001, 104 F.3d 159/(8th Cir., 01/03/1997) consent decree

The court holds that a county ordinance regarding dioxin air emissions is inconsistent with the standard agreed to in a Comprehensive Environmental Response, Compensation, and Liability Act and Resource Conservation and Recovery Act consent decree, and thus is inapplicable to the project that the consent decree concerns. The consent decree incorporated by reference a thermal treatment workplan that described how remedial work was to be performed. The U.S. Environmental Protection Agency (EPA) selected the appropriate workplan in its record of decision (ROD), which announced the applicable or relevant and appropriate requirements (ARARs) with which the defendants were required to comply in the installation and operation of the thermal treatment unit. The decree contemplated that defendants would apply for a hazardous waste management permit from EPA and the state to construct and operate the treatment unit. The draft permit proposed that the project could be conducted safely so long as less that one nanogram of dioxin per dry standard cubic meter of air (ng/m3) was emitted from the unit at any time. Shortly after the hearings on the draft permit, the county council enacted an ordinance imposing new standards on dioxin incineration. The county's new standard was .15 ng/m3, more than six times as restrictive as the standard that EPA and the state had adopted. Despite their knowledge of the new ordinance, EPA and the state maintained the proposed standard in the final permit.

The court first holds that the ARARs are frozen as of the date of the ROD unless EPA determines that new standards are necessary to ensure that the remedy is protective of human health and the environment. This regulatory requirement was specifically incorporated into the consent decree and its attached thermal workplan. Federal law does not permit the modification of the dioxin emission standard at this late date. EPA has not and could not logically make a determination that the county's new .15 ng/m3 standard is necessary, since it has already determined in its recent final permit that approximately 1 ng/m3 is adequate. By adopting the more lenient standard, EPA implicitly rejected the argument that a stricter dioxin standard was necessary to protect human health and the environment.

Counsel for Plaintiff
Peter Appel
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Patricia Reddington, Ass't County Counselor
County Counselor's Office
41 S. Central, 9th Fl., St. Louis MO 63105
(314) 889-2042

Before Arnold and Gibson, JJ.