U.S. v. Vertac Chemical Corp., 05-3147.

• Decision Date: 13 July 2006
• Docket Number: No. 05-3153.,No. 05-3147.,05-3147.,05-3153.
• Citation: 453 F.3d 1031
• Parties: UNITED STATES of America, Plaintiff/Appellee, Arkansas Department of Pollution Control and Ecology, Plaintiff, v. VERTAC CHEMICAL CORPORATION, Defendant, Hercules, Inc., Defendant/Appellant, Inter-Ag Corporation; Department of Defense; Dow Chemical Corporation; Velsicol Chemical Corporation; John Does, 1-5; Chemtura Corporation, formerly known as Crompton Co., formerly known as CIE, formerly known as Uniroyal Chemical Limited, Defendants, John Doull, Ph.D., M.D.; Karl K. Rozman, Ph.D.; William J. Waddell, M.D.; K. Roger Hornbrook, Ph.D.; Daniel M. Byrd, III, Ph.D., D.A.B.T.; Robert Golden, Ph.D.; B. Frank Vincent, Ph. D.; American Council on Science and Health, Amici on behalf of Appellant. United States of America, Plaintiff/Appellee, Arkansas Department of Pollution Control and Ecology, Plaintiff, v. Vertac Chemical Corporation; Hercules, Inc.; Inter-Ag Corporation; Department of Defense; Dow Chemical Corporation; Velsicol Chemical Corporation; John Does, 1-5; Defendants, Crompton Co./CIE, Defendant/Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

453 F.3d 1031

UNITED STATES of America, Plaintiff/Appellee Arkansas Department of Pollution Control and Ecology, Plaintiff, v. VERTAC CHEMICAL CORPORATION, Defendant, Hercules, Inc., Defendant/Appellant Inter-Ag Corporation; Department of Defense; Dow Chemical Corporation; Velsicol Chemical Corporation; John Does, 1-5; Chemtura Corporation, formerly known as Crompton Co., formerly known as CIE, formerly known as Uniroyal Chemical Limited, Defendants John Doull, Ph.D., M.D.; Karl K. Rozman, Ph.D.; William J. Waddell, M.D.; K. Roger Hornbrook, Ph.D.; Daniel M. Byrd, III, Ph.D., D.A.B.T.; Robert Golden, Ph.D.; B. Frank Vincent, Ph. D.; American Council on Science and Health, Amici on behalf of Appellant United States of America, Plaintiff/Appellee, Arkansas Department of Pollution Control and Ecology, Plaintiff, v. Vertac Chemical Corporation; Hercules, Inc.; Inter-Ag Corporation; Department of Defense; Dow Chemical Corporation; Velsicol Chemical Corporation; John Does, 1-5; Defendants, Crompton Co./CIE, Defendant/Appellant.

No. 05-3147.

No. 05-3153.

United States Court of Appeals, Eighth Circuit.

Submitted: March 13, 2006.

Filed: July 13, 2006.

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W. Gordon Hamlin, Jr., argued, Atlanta, GA (V. Robert Denham, Jr., Leah J. Knowlton, Tara P. Kinney, Atlanta, Laurence H. Tribe, Jonathan S. Massey, Cambridge, MA, N.M. Norton, Little Rock, AR, James K. Logan, Overland Park Kansas, on the brief), for appellant Hercules.

Steven W. Quattlebaum, arued, Little Rock, AR (E.B. Chiles IV and Joseph Falasco, Little Rock, on the brief), for appellant Crompton.

Robert H. Oakley, Dept. of Justice, argued, Washington, D.C. (Samuel D. Blesi, Paul Schaeffer, Greer S. Goldman of the Justice Dept., Washington, D.C., Sue Ellen Wooldridge, Assistant Attorney General, Erik Swenson, EPA, Washington D.C., James L. Turner, EPA, of Dallas, TX, on the brief), for appellee.

Before WOLLMAN, FAGG, and RILEY, Circuit Judges.

WOLLMAN, Circuit Judge.

Hercules, Inc. (Hercules) and Crompton Co./Cie (Uniroyal)¹ raise constitutional claims and argue that the district court² erred in assigning and apportioning liability for environmental cleanup costs pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. §§ 9601-0675, as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), Pub.L. No. 99-499, 11 Stat. 1613. We affirm.

I. BACKGROUND

This case involves twenty-six years of litigation and numerous district court and appellate opinions, both published and unpublished. At issue is the cost the United States has incurred in its environmental cleanup efforts at the Vertac Chemical Plant site in Jacksonville, Arkansas (the Jacksonville site or the site). The full procedural and factual history of this case has been discussed in several previous decisions. This opinion will address the relevant portions of each.

A. Factual History

The Jacksonville site was originally developed by the federal government in the 1930s as a munitions factory. In the late 1940s, the site was sold to Reasor-Hill Corporation (Reasor-Hill), a now-defunct company. Reasor-Hill first manufactured various pesticides, but began manufacturing phenoxy herbicides in 1958. These herbicides included dichlorophenoxyacetic acid (2,4-D) and trichlorophenoxyacetic acid (2,4,5-T), synthetic hormones that kill weeds or brush by accelerating growth to the point of natural death. Although these herbicides biodegrade into harmless substances, the manufacture of 2,4,5-T (but not 2,4-D) creates a toxic byproduct that is now viewed as hazardous to humans, 2,3,7,8-tetrachlorodibenzo-p-dioxin (dioxin). While Reasor-Hill operated the site, an unknown quantity of these and other untreated chemical wastes from the production processes flowed through cooling ponds on the west side of the plant into a nearby stream, Rocky Branch Creek. Other wastes were stored in drums stacked in a field on the site.

In 1961, Hercules bought the site and continued to manufacture herbicides, including 2,4-D and 2,4,5-T, at the plant until 1970. During this period, Hercules sold the bulk of its product to the United States Department of Defense as the defoliant Agent Orange, a herbicide made from a mixture of 2,4-D and 2,4,5-T that was used in Vietnam to clear jungle undergrowth.

Soon after Hercules took over the site, it buried the deteriorating drums left by Reasor-Hill in unlined trenches in the southeast corner of the site. Until late 1964, Hercules continued Reasor-Hill's practice of discharging untreated waste water directly into Rocky Branch Creek. Hercules then constructed a waste water pretreatment system, but the system did not remove dioxin. It consisted of a neutralization trench designed to reduce the acidity of the water, an equalization basin designed to stabilize the rate of flow into the City of Jacksonville's sewage system, and a pump and pipe to deliver the treated water to the sewage system. The system's equalization basin frequently overflowed during heavy rainfalls, and it leaked.

After it learned of the toxicity of dioxin in 1965, Hercules instituted a toluene extraction process designed to remove organic impurities from 2,4,5-T products. This process yielded residue (stillbottoms) containing extremely high levels of dioxin. Hercules placed this residue in drums, some of which it buried at the site and some of which it disposed of at a nearby landfill. Hercules acknowledges that numerous leaks and spills occurred during its operation of the site. When the drums leaked in the process area before being transported to the drum burial pit, Hercules's practice was to place any contaminated soil into the drum.

In 1970, Hercules ceased production at the site. Hercules cleaned out all of its equipment and production vessels, buried its waste, and shipped empty drums off-site. In 1971, it leased the facility to Transvaal, Inc., which later became Vertac Chemical Corp. (Vertac).³

Vertac continued to manufacture 2,4-D and 2,4,5-T and followed Hercules's practice of burying most of the waste. In 1975, however, Vertac began shipping its 2,4-D waste to off-site landfills and began to store its 2,4,5-T stillbottoms above ground with the hope that the waste would someday be recycled. In 1976, Vertac purchased the site from Hercules. Vertac voluntarily ceased manufacturing 2,4,5-T and 2,4,5-TP on March 15, 1979.

On February 26, 1980, the United States Environmental Protection Agency (EPA) issued a proposed rule under the Toxic Substances Control Act to prevent Vertac from disposing of the dioxin from the Jacksonville site. This rule, known as the Vertac Rule, became final later that year and prohibited the off-site disposal of 2,4-D wastes that contained dioxin. If Vertac could show that a batch of 2,4-D produced waste that was free of dioxins, it could dispose of that waste and all subsequent 2,4-D waste off-site.

According to testimony at the hearing on the proposed rule, Vertac had approximately 3200 drums of wastes resulting from the production of 2,4-D. The first set of samples taken from seven hundred drums of waste resulting from the initial production of 2,4-D revealed dioxin levels of approximately twenty parts per billion (ppb). The samples were later sent to Wright State University and Monsanto Company for testing. Monsanto could not detect any dioxin with its analytical equipment, but Wright State detected .7 ppb. In a second sampling of 1000 drums, it detected .5 ppb and the next sampling showed .3 ppb. Because the 2,4-D waste contained dioxin, Vertac stopped analyzing samples of the waste and allowed the drums to accumulate. Later testing by the State of Arkansas, as well as the results of trial burns, revealed the presence of dioxin in the drums.

Vertac continued its operations until 1986. In 1987, it abandoned the site, and the site went into receivership. By then, there were nearly 29,000 drums at the site that contained waste materials including 2,4-D, 2,4,5-T, and dioxin. Some drums were labeled T waste, some D waste, some were marked T and D, and some were not marked at all. Many of these markings were indistinguishable or unreadable. More than 15,000 drums were stored outside and exposed to the elements. The drums were stacked three high on deteriorating pallets and were failing at a rate of between five to three hundred drums per week.

Many of the drums had corroded and leaked, contaminating the soil, groundwater, and buildings at the site. Contamination was found in other areas of the site, at the landfills, in nearby neighborhoods, and in the grounds adjacent to the site. After Vertac abandoned the plant, the EPA took over the site, closed down all operations, and assumed cleanup responsibilities that have cost well over $110 million to date.

To carry out its response measures, the EPA divided the site into five units: offsite areas, operable units 1, 2, and 3, and the incineration response action. Several removal actions addressed the immediate threat posed by the drummed waste left on the site when it was abandoned. Four remedial actions addressed the long term solutions for the rest of the site and the surrounding area affected by the site. For each of the remedial actions, the National Contingency Plan required the EPA to (1) conduct a remedial investigation of the site conditions, including an endangerment assessment of the threats posed by the contamination at the site; (2) perform a feasibility study examining the various technical alternatives for remediating the site; (3) take public comment on the EPA's proposed remedial action plan based on the alternatives discussed in the feasibility study; (4) compile an administrative record for remedial action decision making; and (5) issue a written record of decision (ROD) explaining the Regional Administrator's reasoning in selecting the final remedial action plan and responding to the public...