United States v. Vertac Chemical Corp.

• Citation: 489 F. Supp. 870
• Decision Date: 12 May 1980
• Docket Number: No. LR-C-80-109,LR-C-80-110.,LR-C-80-109
• Parties: UNITED STATES of America, Plaintiff, v. VERTAC CHEMICAL CORPORATION; and Hercules, Inc., a corporation, Defendants. ARKANSAS DEPARTMENT OF POLLUTION CONTROL AND ECOLOGY, Plaintiff, v. VERTAC CHEMICAL CORPORATION; and Hercules, Inc., a corporation, Defendants.
• Court: U.S. District Court — Eastern District of Arkansas

489 F. Supp. 870

UNITED STATES of America, Plaintiff, v. VERTAC CHEMICAL CORPORATION; and Hercules, Inc., a corporation, Defendants.

ARKANSAS DEPARTMENT OF POLLUTION CONTROL AND ECOLOGY, Plaintiff, v. VERTAC CHEMICAL CORPORATION; and Hercules, Inc., a corporation, Defendants.

Nos. LR-C-80-109, LR-C-80-110.

United States District Court, E. D. Arkansas, W. D.

May 12, 1980.

Ronnie Shorenstein Alkire, Dept. of Justice, Washington, D. C., Markham Lester, Asst. U. S. Atty., Little Rock, Ark., for United States of America.

Richard H. Mays and Paul N. Means, Jr., Little Rock, Ark., for State Dept. of Pollution Control and Ecology.

John P. Gill and David Allan Gates, Little Rock, Ark., for Vertac Chemical Corp.

Alston Jennings and Gus B. Walton, Jr., Little Rock, Ark., for Hercules, Inc.

MEMORANDUM OPINION AND ORDER

WOODS, District Judge.

The Pleadings. The Arkansas Department of Pollution Control and Ecology and the United States of America on March 4, 1980 filed separate suits against the Vertac Chemical Corporation and Hercules, Inc., both Delaware corporations, in the United States District Court for the Eastern District of Arkansas. The complaint filed by the United States is pursuant to Section 7003 of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6973, et seq., §§ 302(a), 402, 309(b) and (d) and 504 of the Clean Water Act, 33 U.S.C. §§ 1312(a), 1342, 1319(b) and (d) and 1364; Section 13 of the Refuse Act, 33 U.S.C. § 407. It seeks civil penalties and injunctive relief to abate a continuing discharge of toxic and hazardous wastes and pollutants into navigable waters, soil, atmosphere and ground water. The Arkansas Department of Pollution Control and Ecology is an agency of the State which is given statutory authority to compel compliance with the Arkansas Water and Air Pollution Control Act, Solid Waste Management Act, and Hazardous Waste Management Act, and to require the taking of such remedial measures as may be necessary or appropriate to implement or effectuate the provisions and purposes of said acts. Ark.Stat. Ann. §§ 5-908, 82-1909(b), 82-1935(n), 82-2707(j) and 84-4204(i). For the purposes of the request for preliminary injunctive relief, the allegations of the state's complaint and those of the United States are virtually the same and substantially the same relief is required.

The State in its original pleading asked for a preliminary injunction requiring the defendants to (a) cease the discharge of toxic chemicals into Rocky Branch Creek from the landfill areas on the site; (b) to cease the discharge of toxic chemicals into Rocky Branch Creek and into the air from the surface storage and spill areas; and (c) to cease the discharge of toxic chemicals into the groundwater, Rocky Branch Creek and the Jacksonville Sewage system from the existing equalization basin (also referred to as the oxidation pond during the course of the proceedings) by discontinuing active use of the equalization basin; draining and securely storing the liquids contained therein; removing and securely storing the contaminated sludges therein; and closing the site to prevent future run-off and percolation of toxic chemicals. On April 14, 1980 the United States filed a motion for a preliminary injunction requiring defendants to do the following:

1. Immediately cease the discharge of hazardous wastes to the equalization basin on defendant's property from the pipe from the central plant area.

2. Immediately cease the discharge of hazardous wastes from the pipe which runs from the equalization basin on defendants property to the Jacksonville sewage treatment plant.

3. Within 45 days drain the equalization basin and sump below it and store the drained material in containers which will not allow leakage of the materials. Place the containers in an area protected from the elements by a concrete pad on the floor, a roof, curbing and diking.

4. Close the drained equalization basin and sump areas in a manner acceptable to EPA which will ensure no further contamination of the Vertac site due to contact of the drained areas with surface water or the escape of wastes from the drained areas into the air.

5. Within 30 days rebarrel any drums of wastes, including those resulting from 2,4-D production, which are leaking or which appear to be susceptible to leakage. Put them in containers which can reasonably be expected to withstand corrosion from the wastes for five (5) years.

6. Store all drums of waste on site in the existing roofed and diked area or in an area offering equal or greater protection from the elements.

7. Take the following steps to minimize the release of toxic materials from the Vertac site:

a. Within 30 days cover the area north of the Hercules-Transavaal landfill area known as the "old barrel storage area", with a layer of clay which will prevent any infiltration by rainfall or other surface water.

b. Complete within 30 days actions to begin abatement of discharge from the Reasor-Hill landfill areas as set forth in the "Proposed Contaminated Water Containment System" prepared for Vertac Inc., by Shreeve Engineering, Ltd. on July 6, 1979.

c. Immediately begin sampling and analyses of the water in the eight existing groundwater monitoring wells in the Reasor-Hill burial area by experts acceptable to EPA who shall be directed to report their findings on the first day of every month to EPA.

d. Complete within 60 days the actions to begin abatement of the discharge from the Hercules-Transvaal landfill area as set forth in the "Proposed Contaminated Water Containment System" prepared for Vertac, Inc. by Shreeve Engineering, Ltd. on August 9, 1979.

e. Immediately begin sampling and analysis of the water in the three existing groundwater monitoring wells on the Hercules-Transvaal burial area by experts acceptable to EPA who shall be directed to report their findings on the first day of every month to EPA.

f. Install 3 additional wells to monitor the Hercules-Transvaal landfill area and adjacent old barrel storage area, at locations approved by EPA. Upon installation of the wells, begin sampling and analysis of the water in the wells by experts approved by EPA who shall be directed to report their findings to EPA on the first day of each month.

g. If the groundwater data collected in response to # 7b-f above reveals that contamination of the site with hazardous wastes is continuing, submit a plan to cure such contamination within 30 days after EPA has identified its area of concern and implement such plan upon receipt of EPA approval.

The cases were consolidated for trial, and a three-day hearing on the preliminary injunction was begun on April 28, 1980. All the parties were represented by able and knowledgeable counsel, and a mass of expert testimony was taken. Alleged pollution from the Vertac plant and its predecessors has been a matter of great public interest. It has been the subject of extensive press coverage both in Arkansas and in periodicals of national circulation.

History and Background of the Controversy. Defendant Vertac Chemical Corporation owns and operates a chemical manufacturing plant in Jacksonville, Arkansas. The plant is located on a 92.7 acre site bounded by a major thoroughfare named Marshall Road on the east, a small residential area on the south, and undeveloped land on the north and west. Rocky Branch Creek, a tributary of Bayou Meto, flows through the western portion of the plant site.

The plant site was originally developed by the United States government in the mid-1930's as a munitions factory. In 1948 a company named Reasor-Hill purchased the site and converted it to pesticide production. Initially, Reasor-Hill used the plant to formulate¹ finished insecticide products. The products consisted primarily of DDT, aldrin, dieldrin, and toxaphene. In the mid-1950's, Reasor-Hill modified the plant and began manufacturing phenoxy herbicides, principally 2,4-D,² 2,4,5-T,³ and 2,4,5-TP.⁴

In 1961 defendant Hercules purchased the plant from Reasor-Hill. When Hercules took possession of the plant from Reasor-Hill, a large number of deteriorating drums had been stacked in an open field immediately southwest of the operations area. The precise contents of these drums are not known, but the labels suggest that the material consisted of miscellaneous insecticide wastes (i. e., DDT, aldrin, dieldrin, etc.). Shortly after taking custody of the plant in 1961, Hercules buried these wastes by digging trenches with a bulldozer, pushing the barrels in, pushing the trenched dirt on top, and compacting by repeated passes in the bulldozer (hereafter "Reasor-Hill Landfill Area"). Hercules denies that it buried any of its own waste materials in the area. However, test results indicate the presence of dioxin in this area, and it is difficult to explain the presence of the dioxin in that area except by concluding that Hercules may have, prior to the development of the toluene removal process (discussed infra) in 1963, disposed of some 2,4,5-T waste in that area which contained dioxin. By the early spring of 1979, erosion had uncovered some of the drums and small areas of discolored leachate began to appear.

From 1961 until 1971 Hercules operated the plant to manufacture 2,4-D, 2,4,5-T, and 2,4,5-TP. In particular, Hercules produced large quantities of "Agent Orange," a half and half mixture of 2,4-D and 2,4,5-T that was used widely by the United States government to clear jungle undergrowth in Vietnam.

In 1971 Hercules leased the plant site to Transvaal, a predecessor of defendant Vertac. Transvaal operated the plant as Hercules' lessee from 1971 to 1976. In 1976 Transvaal was reorganized into Vertac, and Vertac purchased the plant from Hercules. From 1976 to the present, defendant Vertac has owned and operated the plant. Throughout the Transvaal and Vertac period, the plant has continued as a manufacturing facility for 2,4-D, 2,4,5-T, and 2,4,5-TP.

The manufacturing processes used by...