United States v. Vertac Chemical Corp., LR-C-80-109

Decision Date18 July 1984
Docket NumberNo. LR-C-80-109,LR-C-80-110.,LR-C-80-109
Citation588 F. Supp. 1294
PartiesUNITED 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.
CourtU.S. District Court — Eastern District of Arkansas

Anne P. Gailis, U.S. Dept. of Justice, Washington, D.C., for E.P.A.

Allan Gates, Little Rock, Ark., and Allen T. Malone, Memphis, Tenn., for Vertac.

Alston Jennings, and N.M. Norton, Little Rock, Ark., for Hercules.

Cheryl Terai, Asst. Atty. Gen., State of Ark., Little Rock, Ark., for Arkansas Department of Pollution Control and Ecology.

ORDER

HENRY WOODS, District Judge.

This Court approved the entry of a Consent Decree on January 18, 1982. This decree contemplated that the parties would ultimately reach a negotiated remedial plan for Vertac's Jacksonville plant site. Paragraph VI of the Consent Decree provides for dispute resolution by this court in the event the parties failed to reach a negotiated remedial plan. After exhaustive study of the plant site and protracted negotiations by the parties, no remedial plan has been approved by all of the parties. Vertac, Hercules and the State Department of Pollution Control and Ecology are satisfied with the plan prepared by Vertac's consultants. Additionally, Hercules and Vertac have entered into an agreement concerning the sharing of the cost associated with implementing the remedial plan. However, the Environmental Protection Agency objected to Vertac's proposal and the parties have been unable to resolve their differences. Therefore, Vertac filed a petition pursuant to Paragraph VI of the Consent Decree seeking this court's intervention in the resolution of the dispute.

The history of the Jacksonville plant site as well as this litigation is fully developed in the Court's Memorandum Opinion and Order filed May 12, 1980 wherein preliminary injunctive relief was afforded the plaintiffs in these two consolidated cases. United States v. Vertac Chemical Corporation, 489 F.Supp. 870 (E.D.Ark.1980).

Paragraph VI(A) of the Consent Decree provides as follows:

(A) In the event a dispute should arise among Vertac, EPA and the State regarding any plan, proposal or implementation schedule required to be submitted by Vertac pursuant to the terms and provisions of this Consent Decree, Vertac shall, within 45 days after the expiration of the time allowed under paragraph V(B) for response by EPA/State, file a petition with this Court setting forth the proposal in dispute. In the event of a dispute between Vertac and EPA or the State, Vertac shall also have the burden of showing that its proposal is appropriate to fulfill the terms, conditions, requirements and goals of this Consent Decree. In resolving any dispute, the Court shall consider the nature of any endangerment, and the cost-effectiveness of alternate proposals which satisfy the goals of this Decree.

Vertac has the burden, under this dispute resolution procedure, of showing that its remedial proposal is appropriate to fulfill the terms, conditions, requirements and goals of the Consent Decree. The issue before this court is whether or not Vertac has met this burden and in making this determination the Court is required under the Consent Decree to consider:

1) the nature of any endangerment to human health or the environment,
2) the extent to which the various proposals would reduce any endangerment to human health or the environment; and
3) the cost-effectiveness of alternative proposals which would satisfy the goals of the Consent Decree.

The goal of the Consent Decree is the protection against endangerment to human health or the environment arising from present or prior operations or conditions at the Jacksonville plant site; provision for orderly and systematic storage, transfer, disposal or treatment of chemical wastes at the Jacksonville plant site; protection against migration of pollutants from the Jacksonville plant site into the environment; implementation of plans and remedies for restoration and/or containment of any contaminated ground water; the study of the condition of Rocky Branch Creek, the drainage ditch running from the east side of the plant site to Rocky Branch Creek, and Bayou Meto; and the study of Lake Dupree for potential remedial measures. (See Paragraph IV of Consent Decree).

Approximately two weeks of testimony was presented by the parties at the dispute resolution hearing and the Court is now prepared to make its Findings of Fact and Conclusions of Law.

FINDINGS OF FACT

1. The alternative remedial plans address three basic sources of potential endangerment to human health and/or the environment.

a) barrelled wastes containing up to 100 parts per million dioxin which are buried in the "North Burial Area".
b) contaminants other than dioxin in the wastes buried on-site such as chlorinated phenols, anisoles, chlorinated benzenes, 2,4-D, 2,4,5-T in the "North Burial Area" and aldrin, dieldrin and DDT in the "Reasor-Hill Burial Area".
c) low level concentrations of dioxin and chlorinated phenols in the East Ditch, Central Ditch and Cooling Pond.

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11 cases
  • U.S. v. Vertac Chemical Corp.
    • United States
    • U.S. District Court — Eastern District of Arkansas
    • March 30, 2005
    ...costs consistent with this Order. 1. United States v. Vertac Chem. Corp., 489 F.Supp. 870 (E.D.Ark.1980); United States v. Vertac Chem. Corp., 588 F.Supp. 1294 (E.D.Ark.1984); United States v. Vertac Chem. Corp., 671 F.Supp. 595 (E.D.Ark.1987), vacated, 855 F.2d 856 (8th Cir.1988); United S......
  • US v. Conservation Chemical Co., 82-0983-CV-W-5.
    • United States
    • U.S. District Court — Western District of Missouri
    • April 28, 1987
    ...(emphasis added). See also, United States v. Conservation Chem. Co., 106 F.R.D. 210, 214-16 (W.D.Mo.1985); United States v. Vertac Chem. Corp., 588 F.Supp. 1294, 1295 (E.D.Ark.1984). Furthermore, the government's position apparently ignores Sections 113(d) and 113(h)(5) which grant federal ......
  • US v. Hardage
    • United States
    • U.S. District Court — Western District of Oklahoma
    • April 9, 1987
    ...review, such as United States v. Conservation Chemical Corp., 106 F.R.D. 210, 214-216 (W.D.Mo.1985) and United States v. Vertac Chemical Corp., 588 F.Supp. 1294, 1295 (E.D.Ak.1984). Plaintiff argues "the issue of record review was not before those Courts and accordingly was not ruled upon b......
  • Costner v. URS Consultants, Inc.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • September 30, 1998
    ...the state. A negotiated remedial plan was subsequently approved and enforced by the district court. See United States v. Vertac Chem. Corp., 588 F.Supp. 1294 (E.D.Ark.1984) (Vertac II ); United States v. Vertac Chem. Corp., 671 F.Supp. 595, 610-13 (E.D.Ark.1987) (Vertac III ), vacated, 855 ......
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