Arkansas Peace Center v. Arkansas Department of Pollution Control & Ecology

No. LR-C-92-684 (E.D. Ark. March 17, 1993)

The court grants environmental groups' motion for a preliminary injunction to stop the Arkansas Department of Pollution Control and Ecology (ADPCE) and its contractor from incinerating cleanup wastes from the Vertac site that contain dioxin. In response to the environmental groups' suit, the court issued a temporary restraining order (TRO) allowing the state and its contractor to conduct a test burn of dioxin-contaminated waste, but prohibited further burning of such waste pending a hearing. The hearing was held to determine whether the applicable U.S. Environmental Protection Agency (EPA) regulations governing such incineration required a 99.9999 percent destruction removal efficiency (DRE) to be achieved on the dioxin component in the waste. After the court ruled that the regulations do require such a DRE, the contracting incineration facility instigated an interlocutory appeal and the U.S. Court of Appeals for the Eighth Circuit stayed the court's TRO pending this appeal.

The court first finds that the record shows that dioxin is a hazardous chemical substance and carcinogen, which EPA's regulations require must be destroyed by incineration to a level of 99.9999 percent DRE, rather than the standard for hazardous wastes of 99.99 percent DRE. Moreover, the contract between the ADPCE and the incinerator contractor contains a specification for 99.9999 percent DRE on dioxin, not just on the principal organic hazardous constituent of hexachlorabenzene. The court also finds that the defendants failed to attempt to prove such a DRE on dioxin during the test burn and various EPA documents appear to concede that 99.9999 percent DRE cannot be achieved on dioxin when it is present in low concentrations. The court also finds that the incineration is being conducted within a few hundred feet of a well-populated residential area, the risk assessment studies presented by the defendants did not take the above problems into account, and the danger of a natural calamity can never be ruled out.

Based on this proof, the court holds that the environmental groups have established the risk of irreparable harm from incineration sufficient to sustain issuance of a preliminary injunction. The defendants have not demonstrated that dioxin is being burned at a 99.9999 percent DRE level and seem to admit that dioxin is leaving the incinerator stack at a level exceeding that standard. Given the ability of dioxin to cause cancer and noncancer effects and the incinerator's location in a residential area, there is a very real risk that humans may be exposed to unacceptable levels of dioxin if the current incineration is allowed. In addition, the risk of harm to the defendants is almost solely monetary, and the risk of harm falls more heavily on the environmental groups' members. Further, the environmental groups' probability of success on the merits is tied to their showing of potential irreparable harm, and the court must infer from defendants' failure to attempt to calculate a DRE for dioxin that a 99.9999 percent level cannot be achieved. Finally, the court holds that although both plaintiffs and defendants have the interest of the general public at hand, the fact that incineration may cause irreparable harm to the residents outweighs the uncertain conclusion that the residents may eventually be served best by incineration.

Counsel not available at this printing.

[23 ELR 20808]

Reasoner, J.:

Order

Presently before the Court is plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction (#2). Responses have been received, and hearings were held on October 29, 1992; February 12, 1993; March 4-5, 1993; March 11-12, 1993; and March 15, 1993.

I. Facts and Procedural History

Vertac Site Contractors operates an incineration facility in Jacksonville, Arkansas. This facility has been approved by the Arkansas Department of Pollution, Control and Ecology, and the Environmental Protection Agency to conduct a clean-up of wastes that were stored on the site. These wastes contain certain materials, such as dioxin, that force their characterization as F-listed wastes. 40 C.F.R. § 261.31.

After the October 29, 1992, hearing in Batesville, the Court issued a Temporary Restraining Order (#8) which allowed defendants to conduct a test burn of the 2,4,5-T waste. However, the Court held that no further burning of 2,4,5-T waste would be allowed pending a hearing on the preliminary injunction.

The hearing on February 12, 1993, was held to determine the legal issue of whether a 99.9999% destruction removal efficiency (DRE) must be achieved on dioxin itself. After the Court ruled the regulations require that it must be so demonstrated and expanded the temporary restraining order to prohibit the burning of any wastes containing dioxin,¹ defendant Vertac Site Contractors instigated an interlocutory appeal.² The Eighth Circuit Court of Appeals then stayed this Court's temporary restraining order pending appeal. Arkansas Peace Center v. Arkansas Department of Pollution Control and Ecology, No. 93-1447 slip op. (8th Cir. March 2, 1993). Also, the Eighth Circuit expressed in its order that it wished the district court to continue with its scheduled hearings because "the findings and conclusions made following these hearings will materially affect the expedited appeal we have scheduled. The district court is requested to transmit its findings and conclusions to this court as soon as they have been made." Id. at 6.

In the hearings beginning on March 4, 1993, and concluding the day before yesterday, the Court shifted the burden of going forward to defendants to show that despite their noncompliance with EPA regulations, they should be allowed to proceed with the incineration of dioxin-containing wastes. The decision to shift the burden was based on the Court's ruling at the February 12, 1993, hearing and the fact that a 99.9999% DRE for dioxin had not been represented as having been achieved. During the hearings held in March, the Court heard testimony concerning the various factors required in Dataphase Systems, Inc. v. C.L. Systems, Inc., 640 F.2d 109, 113 (8th Cir. 1981), for the issuance of a preliminary injunction.

II. Finding of Fact

1. Dioxin is an extremely hazardous chemical substance (See, Plaintiffs' Exhibit #83 at 5.1, last sentence, second paragraph) which has been scientifically linked to increased cancer risks, and other possible adverse health effects. See, Plaintiffs' Exhibit #92.

2. Due to its hazardous nature, the Environmental Protection Agency (EPA) drafted regulations which placed dioxin in a category of dangerous substances that must be destroyed by incineration to a level of 99.9999% destruction removal efficiency (DRE) rather than the standard for hazardous waste of 99.99% DRE. 40 C.F.R. § 264.343(a)(1)-(2).

3. In view of the above, the Court cannot accept the attempts by EPA and the other defendants to suggest through witnesses that dioxin's only known danger is causing a skin condition known as chloracne. In fact, EPA characterizes dioxin as a B-2 carcinogen because it has determined that it is probably carcinogenic to humans. Tr. at 293.

4. In addition to the regulation, the contract between the Arkansas Department of Pollution, Control and Ecology (ADPC&E) and defendant Vertac Site Contractors (VSC) contains a specification for 99.9999% DRE on dioxin, not just upon the principal organic hazardous constituent (POHC) of hexachlorabenzene. See, Plaintiffs' Exhibit 16 at D-8. The Court cannot accept the contract interpretation of defendant Randall Mathis that the specifications were not part of the contract. Further, EPA made this statement in a document entitled "Proposed Exclusion from RCRA Coverage of Vertac Site Wastes":

In 1985, a series of incineration experiments were performed using wastes from the Vertac site at the EPA Combustion Research Facility (CRF) in Jefferson, Arkansas. The primary objective of the tests was to evaluate the treatability of the waste generated from the 2,4,5-T manufacturing process. The results of the tests indicated that incineration is capable of achieving 99.9999 percent destruction removal efficiency for 2,3,7,8, tetracholorodibenzo-p-dioxin [sic] (TCDD) as required by 40 C.F.R. 264.343, making the incineration of the waste a viable treatment alternative.

See, Plaintiffs' Exhibit #90 at 220 (emphasis added).

5. From the proof at the hearing, the Court must conclude, that defendants have not, and probably cannot, demonstrate 99.9999% DRE on dioxin. In October, the Court allowed a test burn during which the defendants could have attempted to prove such DRE on dioxin, but chose not to do so.

6. A DRE was calculated on some dioxin that was accidentally-burned. That DRE was 99.96%. Indeed, various documents by EPA appear to concede that 99.9999% DRE cannot be achieved on dioxin when it is present in low concentrations. While the difference between 99.9999% and 99.96% may appear in most affairs of life to be insignificant, when it comes to the destruction of extremely hazardous materials such as dioxin, it is critical to public health and safety.

7. Testimony suggested that dioxin may be reforming in the stack as a product of incomplete combustion (PIC). This has been offered as an explanation of why 99.9999% DRE cannot be achieved on dioxin itself. However, whether the calculation of less than 99.9999% DRE is the result of a failure to destroy dioxin in the waste feed or the result of the reformation of dioxin in the stack, the ultimate effect is the same, i.e., what comes out of the stack will be more than .0001% of the dioxin in the waste feed. Additionally, EPA expert Barry Dellinger testified that a 99.9999% DRE cannot be achieved if PICs are considered in the calculations. TR. 526-27. Also, ADPC&E has stated that the requisite 99.9999% DRE calculation would include dioxins formed as PICs. See, Plaintiffs' Exhibit #4 at 21.

8. In addition to 2,3,7,8 TCDD, the most dangerous of the dioxins, the Vertac waste contains other congeners and isomers of dioxins and furans which, while not as dangerous, may nonetheless present significant health hazards.

9. This incineration is being done within a few hundred feet of a well-populated residential area, some of which lies downwind from the southwestwardly winds frequently experienced in central Arkansas.

10. Defendants did put on testimony of operational safeguards and "risk assessment" studies that tended to demonstrate that the risks from exposure to dioxin released from the incinerator are small. However, all of these studies and opinions were based upon the premise that nothing would go wrong during the operation. The Court is not comfortable in accepting that premise because things have gone wrong at the Vertac site:

(a.) The wastes at Vertac have been classified as "T-wastes" (those containing dioxin) and "D-wastes" (those which were not supposed to contain any dioxin). However, it was discovered during a test burn allowed by this Court in previous litigation (National Toxic's Campaign, et al. v. Arkansas Department of Pollution Control and Ecology, No. LR-C-91-194 (E.D. Ark, June 28, 1991)), that the "D-wastes" did, in fact, contain dioxin and that dioxin was accidentally burned. This came as a surprise to Randall Mathis, Administrator of the Arkansas Department of Pollution Control and Ecology, according to his testimony in this case, and it came as a surprise to this judge. The Eighth Circuit Court of Appeals in its March 2, 1993 order staying this Court's temporary [23 ELR 20809] restraining order made reference to this Court's order in National Toxic's Campaign wherein this Court recognized that "something must be done about the situation." However, what the Eighth Circuit panel probably could not have known, because this Court did not spell it out as it should have in that order, was that this Court, as did Mr. Mathis, thought that the 360-hour test burn that was allowed then would involve the burning of no dioxin-contaminated wastes.

(b.) The incineration process is producing dioxin contaminated ash in a volume almost as great as the waste being destroyed. Moreover, when this waste is packed in barrels, the barrel volume is greater than that going into the incineration process. While the ash does not contain dioxin at as high a level as the incinerated waste, it still is a substance which will have to be safely disposed of in some way.

(c.) During the history of the incinerator, there have been seventy-four (74) "kiln puffs" which is a situation where the air pressure at some point inside the incinerator is greater than that of the outside air. Tr. at 384-85. The significance of these "puffs" needs to be explained. Under normal operation (i.e., nothing going wrong), the incinerator is supposed to be under negative pressure, which means that the ambient air pressure is greater than the pressure inside the incinerator. The important part about this, at least to the Court when it approved the test burn in National Toxic's Campaign and the earlier test burn in this case, is that this negative pressure situation would prevent leaks and ameliorate fear of explosion. In other words, if some hole or breach appeared in the system, outside air would leak in instead of toxic material leaking out and a violent eruption would be in the form of an implosion rather than an explosion. The evidence of these seventy-four "puffs" removes, in the Court's mind, this previously envisioned safeguard.

11. The risk assessment studies presented by the defendants did not take the above problems into consideration and, therefore, are of limited value to the Court.

12. The Court regrets that neither side called a responsible person with VSC so that a determination could be made by the Court of the efficiency of the incineration operation and the competence of the people running it.

13. The danger of a tornado or a fire caused by lightening can never be ruled out. However, in view of the fact that the incineration will take one and one half to three years to be completed, at least in the short run, say for the next six months to a year, events such as a tornado or a fire would threaten both the stored wastes and the incinerator, rather than just the stored wastes alone.

14. While it is not given this Court to have the ability to peer into the future, and a natural calamity may strike at any moment, after viewing all the evidence of the case, the Court is convinced that there is more danger from something going wrong with the present incineration process than there is from natural calamity.

III. Conclusions of Law

In determining whether a preliminary injunction should issue, the Court should consider:

(1) the threat of irreparable harm to the movant; (2) the state of the balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that movant will succeed on the merits; and (4) the public interest.

Dataphase Systems, Inc. v. C.L. Systems, Inc., 640 F.2d 109, 113 (8th Cir. 1981).

A. Irreparable Harm

Defendants' attempts to establish the safety of the incinerator leave the Court with the impression that [the] incinerator's ability to destroy dioxin to a level of 99.9999% is at the very best uncertain. The many explanations and opinions of how the incinerator has demonstrated its ability to achieve 99.9999% fall short of convincing the Court that incineration is safe for the residents of Jacksonville. For example, defendants make much of the assertions that the 99.9999% standard is merely a performance-based rather than a risk-based standard and that the incinerator has demonstrated this performance level on a surrogate material that is harder to burn than dioxin. However, the fact remains that they have not demonstrated that dioxin is being burned at a 99.9999% level and indeed seem to admit that dioxin is leaving the stack at a level exceeding .0001% of the waste feed.

Given the ability of dioxin to cause non-cancer effects, and in all probability cancer effects, plaintiffs have succeeded in convincing the Court that the risk of irreparable harm from incineration is sufficient under Dataphase. The incinerator is located in a residential area where there are many pathways through which dioxin may be exposed to humans. For example, humans may be exposed through the inhalation pathway, dermal pathway, and fruit and vegetable pathway among others. In the Court's opinion there is a very real risk that humans may be exposed to unacceptable levels of dioxin if the incineration is allowed to continue without more positive proof that the incinerator is operating at the efficiency which defendants allege.

B. Balance of the Harm

The risk of harm to defendants in this matter is almost solely monetary. Although the government defendants have a certain interest in protecting the health of the general public, that interest is also well represented by plaintiffs. Given the plaintiffs' showing of potential irreparable harm to human health, the Court is inclined to hold that the risk of harm falls more heavily on the plaintiffs than on the defendants.

C. Probability of Success on the Merits

Eventually the standard for this Court to determine whether plaintiffs will ultimately be entitled to permanent injunctive relief is whether defendants have "contributed or . . . [are] contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment." 42 U.S.C. § 6972(a)(1)(B) (West Supp. 1992). At this juncture, plaintiffs must only establish their probability of success under this standard.

To a great extent, plaintiffs' probability of success is tied to their showing of potential irreparable harm. "Imminent and substantial endangerment" is, in this Court's opinion, closely akin to irreparable harm. As stated before, plaintiffs have shown that incineration presents potential harm from dioxin exposure that has not been satisfactorily rebutted by defendants' efforts to assure the Court of the safety of the incinerator and its emissions.

Furthermore, as this Court has ruled in the February 12, 1993, hearing, defendants have not demonstrated that the incinerator can achieve a 99.9999% DRE on dioxin itself as is required by 40 C.F.R. § 264.343 and the contract between the State of Arkansas and VSC. Indeed, the Court must infer from defendants' failure to attempt to calculate a DRE for dioxin that a 99.9999% level cannot, in fact, be achieved.

D. Public Interest

It is obvious that both plaintiffs and defendants have the interest of the general public at hand although their ideas as to how that interest will best be served are quite divergent. It is safe to say that the interest of the general public is in using the safest and most reliable methodology available to "neutralize" the potential hazardous consequences associated with the drummed waste. Defendants' position is that incineration is the safest and most reliable methodology available. On the other hand, plaintiffs['] are of the opinion that incineration itself causes an imminent and substantial endangerment to human health.

Although the Court cannot at this point definitively adopt either position, the fact that incineration may cause irreparable harm to the residents of Jacksonville looms in the forefront of this Court's analysis. The interest of the residents of Jacksonville may well eventually be served best by incineration of the drummed waste. However, that conclusion is uncertain, and until the benefit of a trial on the merits is available to the Court, plaintiffs' showing of the potential irreparable harm must rule the day.

IV. Order

For the foregoing reasons, plaintiffs' motion for preliminary injunction is granted. Therefore, defendants, their officers, agents, employees, successors, attorneys and all those in active concert or participation with them are directed to refrain from incinerating drummed hazardous wastes at the Vertac site which have not already been shredded in preparation for incineration.³

[23 ELR 20810]

Separate Defendant Vertac Site Contractors' motions in limine regarding the use of telephone testimony and the admissibility of the draft "dioxin reassessment" from EPA were both granted from the bench during the hearing. Separate Defendant, Vertac Site Contractors' Motion to Strike Plaintiffs' Exhibits 14, 15, 17, and 18 and Other Similar Exhibits is denied. Separate Defendant, Vertac Site Contractors' Motion to Strike and Proffer of Evidence is granted in part and denied in part. The Court will deny defendant's request to strike the exhibits but will grant the request to proffer evidence.

1. Principally, this extended the October 29, 1992, Temporary Restraining Order to included [sic] the 2,4-D waste as well as the 2,4,5-T waste.

2. The Court complied with defendants' request for the necessary language under 28 U.S.C. § 1292(b) and certified the issue of whether EPA regulations require a destruction and removal efficiency of 99.9999% to be achieved on dioxin-containing wastes for interlocutory appeal.

3. In light of the Court's decision that defendants are operating the incinerator in violation of EPA regulations, no bond will be required of plaintiffs at this time. However, defendants are, of course, free to file motions on this issue.