Arkansas Peace Center v. Arkansas Dept. of Pollution Control and Ecology, s. 93-1720

Citation999 F.2d 1212
Decision Date30 August 1993
Docket NumberNos. 93-1720,93-1765 and 93-1769,s. 93-1720
Parties, 23 Envtl. L. Rep. 21,280 ARKANSAS PEACE CENTER; Environmental Health Association of Arkansas; Jacksonville Mothers' and Children's Defense Fund; Vietnam Veterans of America, Arkansas State Chapter; Mothers Air Watch, Plaintiffs-Appellees, v. ARKANSAS DEPARTMENT OF POLLUTION CONTROL AND ECOLOGY, Randall Mathis, Director; Defendant, United States Environmental Protection Agency, Carol Browner, Administrator; Defendant-Appellant, Vertac Site Contractors; Arkansas Attorney General, Defendant. ARKANSAS PEACE CENTER; Environmental Health Association of Arkansas; Jacksonville Mothers' and Children's Defense Fund; Vietnam Veterans of America, Arkansas State Chapter; Mothers Air Watch, Plaintiffs-Appellees, v. ARKANSAS DEPARTMENT OF POLLUTION CONTROL AND ECOLOGY, Randall Mathis, Director; United States Environmental Protection Agency, Carol Browner, Administrator; Defendant, Vertac Site Contractors; Defendant-Appellant, Arkansas Attorney General, Defendant. ARKANSAS PEACE CENTER; Environmental Health Association of Arkansas; Jacksonville Mothers' and Children's Defense Fund; Vietnam Veterans of America, Arkansas State Chapter; Mothers Air Watch, Plaintiffs-Appellees, v. ARKANSAS DEPARTMENT OF POLLUTION CONTROL AND ECOLOGY, Randall Mathis, Director; Defendant-Appellant, United States Environmental Protection Agency, Carol Browner, Administrator; Vertac Site Contractors; Arkansas Attorney General, Defendants.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

David C. Shilton, Dept. of Justice, Washington, DC, argued for the EPA.

Daniel Dunn, Denver, CO, argued, for Vertac; Myles E. Flint, John A. Bryson, Ronald Spritzer and Alice Mattice, Washington, DC, on the brief.

Mick G. Harrison, Washington, DC, argued (Richard E. Condit, Washington, DC, and Gregory Ferguson, Little Rock, AR, on the brief), for plaintiffs-appellees.

Before McMILLIAN, JOHN R. GIBSON, and WOLLMAN, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

The Environmental Protection Agency, The Arkansas Department of Pollution Control and Ecology, and Vertac Site Contractors appeal from a preliminary injunction entered on March 17, 1993, prohibiting Vertac Site Contractors from incinerating any drummed wastes. We reverse the grant of a preliminary injunction, and remand with directions to dismiss the case for lack of subject matter jurisdiction.

A variety of companies operated the Vertac site 1 as a herbicide and pesticide production facility from 1948 to 1987. As part of the manufacturing process, the companies produced wastes containing dioxin, put the waste in drums, and stored it at the site. In 1987, the last manufacturer abandoned the site, leaving about 28,000 drums of two types of dioxin contaminated herbicide waste, 2,4-D waste ("D waste") and 2,4,5-T waste ("T waste"). The EPA initiated an immediate removal action under The Comprehensive Environmental Response, Compensation, and Liability Act of 1980. 2 The EPA overpacked the drums and placed them in temporary storage to mitigate hazards the deteriorating drums posed.

The Arkansas Department of Pollution Control and Ecology negotiated and signed a contract for the incineration of the drummed wastes with MRK, Inc. on July 11, 1989. MRK subsequently assigned the contract to Vertac Site Contractors, a joint venture comprised of MRK and MK Environmental Services, to conduct the incineration activities. To pay for the project, the State used money from a trust fund created as a result of litigation against the manufacturer by the United States.

The EPA conducted an Engineering Evaluation/Cost Analysis for the site, and determined that it would assist the State in the incineration of the drums by maintaining the drummed waste, conducting offsite air monitoring around the site, handling and transporting the drums for incineration, and disposing of the incinerator ash.

To burn the waste, Vertac built a rotating kiln incinerator. On January 2, 1992, the Arkansas Department of Pollution Control and Ecology certified that Vertac had demonstrated its ability to meet state and federal regulatory requirements, but imposed numerous conditions regarding the incinerator's operation. Of significance to this case is EPA regulation 40 C.F.R. § 264.343(a)(2) (1992), which requires that an incinerator burning certain hazardous wastes (including dioxin) achieve a destruction and removal efficiency (DRE) of 99.9999% (the "six nines" requirement), with the performance to be demonstrated on surrogate constituents more difficult to incinerate than dioxin. 3

Greenpeace and the National Toxins Campaign prepared a report criticizing the State's approval of the incinerator and the EPA's air monitoring. The EPA Region VI reviewed this report, and told the Arkansas Department of Pollution Control and Ecology that Vertac complied with the six nines DRE requirement. In so concluding, the EPA relied on the results of three trial burns that used a compound that is more difficult to destroy than dioxin. The Arkansas Department of Pollution Control and Ecology, in consultation with the EPA, imposed carbon monoxide and hydrocarbon emission limits to minimize emissions from the incinerator. The EPA has since conducted continuous air quality monitoring at the site during all times when hazardous wastes have been incinerated. The EPA also prepared a risk assessment utilizing the air monitoring data, and concluded that the excess probability of cancer associated with the incineration of dioxin was within the acceptable range.

On September 28, 1992, the EPA Regional Administrator for EPA Region VI requested approval of a federal removal action and an exemption from the statutory $2,000,000 ceiling increase and one year time limit for removal actions under CERCLA, 42 U.S.C. § 9604(c)(1)(C). Because the state's trust funds were insufficient to complete the incineration, the Regional Administrator determined that an immediate federal removal action was necessary to complete the incineration. The memorandum documented that CERCLA section 104(c)(1)(C), which authorizes spending over the $2,000,000 limit, covered the activity. 42 U.S.C. § 9604(c)(1)(C). The memorandum emphasized in several statements the risk of exposure to nearby populations by the threat of release, fire, or explosion should the wastes not be incinerated.

On October 28, 1992, the Arkansas Peace Center and other groups 4 filed a complaint and a motion for a temporary restraining order and preliminary injunction seeking to enjoin the State, the EPA, and Vertac from incinerating the drummed waste at the site, alleging that Vertac failed to demonstrate a six nines DRE for dioxin. Two days later, the district court granted in part the groups' motion for a temporary restraining order. Arkansas Peace Ctr. v. Arkansas Dep't of Pollution Control & Ecology, No. LR-C-92-684, Order (E.D.Ark. Oct. 30, 1992). The order allowed two already scheduled test burns of the T-wastes to go forward, but enjoined any further burning until the court could conduct a hearing on the preliminary injunction. Id. The court did not enjoin the burning of D-wastes.

On December 24, 1992, the EPA filed a motion to dismiss, raising a number of issues, including lack of subject matter jurisdiction under CERCLA section 113(h). 42 U.S.C. § 9613(h). The district court has not ruled on this motion.

On January 5, 1993, the district court entered an order requiring the parties to address "whether a destruction removal efficiency (DRE) test for dioxin is required under the circumstances of this case." The parties submitted briefs, and the district court held a hearing on February 12, 1993. At that hearing, the district court stated that it doubted it had jurisdiction to consider anything other than defendants' compliance with EPA's regulations. The court stated that although the regulation did not require a demonstration of six nines DRE on dioxin, the purpose of the six nines rule was to insure that dioxins were being destroyed at that rate. The court continued the injunction and also extended the injunction to prohibit the incineration of D-wastes.

On February 16, 1993, the district court amended its temporary restraining order, extending the temporary restraining order until the conclusion of the hearing for preliminary injunction. Arkansas Peace Ctr. v. Vertac Site Contractors, No. LR-C-92-684, Order at 1-2, 1993 WL 95658 (E.D.Ark. Feb. 16, 1993). The district court found that the incinerator performance regulation required the showing of a 99.9999% destruction and removal efficiency for dioxin, not a surrogate chemical substance or Principal Organic Hazardous Constituent (POHC). Id. at 2. The court ruled that the burning of dioxin containing wastes violated EPA regulations, and that a violation of regulations tips the scale heavily toward a determination that potential irreparable harm to plaintiffs outweighs the potential harm to defendants. Id. The court also denied defense motions for stay pending appeal and certified the case for interlocutory appeal under 28 U.S.C.A. § 1292(b) (West Supp.1993). Id. at 1. Vertac, the EPA, and the Arkansas Department of Pollution Control and Ecology filed a petition for permission to appeal and motions for stay pending appeal with this court.

On February 25, 1993, we granted a temporary stay of the February 16, 1993, amended temporary restraining order, and later entered a stay pending appeal of the amended temporary restraining order. Arkansas Peace Ctr. v. Arkansas Dep't of Pollution Control & Ecology, No. 93-1447, slip op. at 5 (8th Cir. Mar. 2, 1993). We granted the motions for interlocutory appeal, expedited and consolidated the interlocutory appeals, and set the case for oral argument on March 17, 1993. Id. at 4-5.

On March 17, 1993, the district court entered a...

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