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United States v. Vertac Chem. Corp.

ELR Citation: 29 ELR 21060
Nos. LR-C-80-109, 33 F. Supp. 2d 769/(E.D. Ark., 10/23/1998) Claims for response costs

The court holds that two chemical manufacturers must pay $102 million in U.S. response costs incurred at the Vertac Plant site in Jacksonville, Arkansas. The court first holds that the U.S. Environmental Protection Agency's (EPA's) decision to use a conservative cancer potency factor in the calculation of dioxin cleanup standards for the soil and sediments at the site was not arbitrary, capricious, or not in accordance with the law. In light of the scientific uncertainty about a safe level for dioxin, EPA's choice was reasonable. The court also holds that EPA's cancer potency factor need not be overturned because it was not subject to notice and comment. The health assessment document that set forth the cancer potency factor does not impose any rights or obligations, and EPA exercised discretion in deciding whether to apply the cancer potency factor to the cleanup of the site. Moreover, EPA provided the manufacturers an opportunity to comment on the application of the cancer potency factor. The court further holds that EPA's exposure assessments and cleanup standards were not arbitrary and capricious. EPA was justified in assuming that residents could be exposed to dioxin contaminants from the site. The court then rejects the argument that the remedies were not cost effective because EPA failed to consider the risks of injuries and fatalities to workers involved in response activities. Nothing in the administrative record shows that EPA did not consider worker safety, and the national contingency plan (NCP) does not require an assessment of the risks associated with traveling to and working at the site.

The court next holds that the incineration of the drummed wastes was not arbitrary or capricious and was in accordance with the NCP. EPA's characterization of the D-wastes as F-listed waste was not arbitrary and capricious. Contrary to the manufacturers' assertions, the wastes at the site met the requirements of the F023 listing. Furthermore, the waste did not meet the treatment requirements for landfill offsite. Thus, incineration was appropriate under the circumstances. In addition, the court holds that EPA appropriately performed the response action as a series of removal actions to mitigate the imminent threat posed by the leaking drums. The administrative record adequately documents the continuing risk to human health and environment of the drummed wastes. Further, the length of time or permanency of the remedy does not preclude finding that EPA conducted a removal action at the site.

The court then holds that retroactive application of the Comprehensive Environmental Response, Compensation, and Liability Act was not unconstitutional. The manufacturers already have been found liable for the contamination at the site in previous litigation, and they are responsible, jointly and severally, for the costs of the cleanup. Last, the court holds that the United States is entitled to judgment against the manufacturers in the amount of $102 million plus any additional response costs incurred and to be incurred in this case. The manufacturers failed to demonstrate that the costs incurred by the United States are inconsistent with the NCP.

[Prior decisions in this litigation are published at 10 ELR 20709, 15 ELR 20002, 21 ELR 20925, 22 ELR 21210, 24 ELR 20760, 25 ELR 20491, and 27 ELR 21351.]

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

Counsel for Defendants
Charles L. Moulton
Attorney General's Office
200 Tower Bldg.
323 Center St., Little Rock AR 72201
(501) 682-2007