U.S. v. Vertac Chemical Corp.
| Decision Date | 21 May 1997 |
| Docket Number | Civil No. LR-C-80-109.,Civil No. LR-C-80-110. |
| Citation | 966 F.Supp. 1491 |
| Parties | UNITED STATES of America, Plaintiff and Counterclaim Defendant, v. VERTAC CHEMICAL CORP., Defendant, Counterclaimant, Cross Claimant, and Third Party Plaintiff; and Hercules Incorporated, Defendant, Cross Claim Defendant, Counterclaimant, Cross Claimant and Third Party Plaintiff; and The Dow Chemical Company, Velsicol Chemical Corporation, BASF Aktiengesellshaft, BASF Corporation, Uniroyal Chemical, LTEE-Ltd., Standard Chlorine of Delaware, Inc. and Five John Does, Third Party Defendants. ARKANSAS DEPARTMENT OF POLLUTION CONTROL AND ECOLOGY v. VERTAC CHEMICAL CORP., Defendant, Counterclaimant, Cross Claimant, and Third Party Plaintiff; and Hercules Incorporated, Defendant, Cross Claim Defendant, Cross Claimant; and Third Party Plaintiff; and The Dow Chemical Company, Velsicol Chemical Corporation, BASF Aktiengesellshaft, BASF Corporation, Uniroyal Chemical, LTEE-Ltd., Standard Chlorine of Delaware, Inc. and Five John Does, Third Party Defendants. |
| Court | U.S. District Court — Eastern District of Arkansas |
Charles L. Moulton, Attorney General's Office, Little Rock, AR, for the State of Arkansas.
V. Robert Denham, Jr., Powell, Goldstein, Frazer & Murphy, Atlanta, GA, M.M. Norton, Jr., Charles L. Schlumberger, Wright, Lindsey & Jennings, Little Rock, AR, for Hercules, Inc.
Steven W. Quattlebaum and G. Alan Perkins, Williams & Anderson, Little Rock, AR, Susan H. Shumway, Shumway & Merle, Southport, CT, for Uniroyal Chemical.
Richard F. Ricci, Lowenstein, Sandler, Kohl, Fisher & Boylan, Roseland, NJ, Samuel E. Ledbetter, Nichols, Wolff, Ledbetter & Campbell, P.A., Little Rock, AR, for Standard Chlorine of Delaware.
This case involves a 93-acre tract of land in Jacksonville, Arkansas known as the Vertac Site ("Vertac Site" or "Site").1 As a result of the herbicide production at the Site, the land, buildings, equipment, groundwater, sewer lines, two sewage treatment plants, and floodplains and adjacent creeks became contaminated with 2,3,7,8-TCDD ("dioxin") and other chlorinated carbon compounds. The Vertac Site and Off-Site Areas2 are on the National Priority List of Superfund cleanup sites established pursuant to Section 105 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9601 et seq.
The Vertac Site was originally developed by the United States government in the mid-1930's as a munitions factory. United States v. Vertac Chemical Corp., 489 F.Supp. 870, 873 (E.D.Ark.1980). Sometime between 1946 and 1948, the Site, including the munitions buildings, was sold to a now defunct corporation known as Reasor-Hill Corporation ("Reasor-Hill"). Reasor-Hill made pesticides, including aldrin, dieldrin, and DDT at the Site.
In 1958, Reasor-Hill began the manufacture of phenoxy herbicides, primarily 2,4,5-trichlorophenoxyacetic acid ("2,4,5-T"), 2,4-dichlorophenoxyacetic acid ("2,4-D") and 2,4,5-trichloropropionic acid ("Silvex" or "2,4,5-TP"). See Id. at 873-4. During the Reasor-Hill years, waste water from the production process ran through two cooling ponds on the west side of the plant directly to Rocky Branch Creek. Reasor-Hill had no treatment to process the waste water. The amount of waste generated during that period of time is unknown.
In 1961, Hercules, Inc. ("Hercules") bought the Jacksonville facility from Reasor-Hill, and continued the production of phenoxy herbicides, including 2,4,5-T, 2,4-D, and 2,4,5-TP. Hercules operated the plant until 1971. Shortly after it acquired the plant site from Reasor-Hill, Hercules buried drums of chemical waste left over from the Reasor-Hill operations on the Site.
From 1964 through 1968, Hercules produced and supplied to the United States Department of Defense an herbicide known as Agent Orange, used as a defoliant in Vietnam. See United States v. Vertac Chemical Corp., 46 F.3d 803 (8th Cir.1995). Agent Orange is a 50/50 mix of the n-butyl esters of 2,4-D and 2,4,5-T. During the Agent Orange production process, dioxin is formed as a by-product.
Hercules learned of the presence of dioxin in 1965, and thereafter began testing for the presence of dioxin in its product. In that same year, Hercules began converting its method of production to a "toluene extraction" system. During the process, dioxin and other impurities that were extracted underwent a distillation process producing residue (stillbottoms) in which extremely high levels of dioxin were found. Hercules buried drums of toluene stillbottoms at the Site and disposed of them in the landfill areas.
There were numerous leaks and spills during the time that Hercules operated the plant. According to testimony at trial, the leaks and spills were a common occurrence. During the time it operated the plant, Hercules generated hazardous substances, including dioxin, 2,4-D, 2,4,5-T, and other chlorinated carbon-based chemicals which were disposed of at the Vertac Site and Off-Site areas through leaks, spills, drum burial, and other releases into the environment, including discharges through the Jacksonville sewage treatment plant. The Hercules operation resulted in contamination of soil, groundwater, equipment, tanks, sewer lines the sewage treatment plants, and sediments and flood plains in Rocky Branch Creek and Bayou Meto.
In 1971, Hercules leased the facility to Transvaal, Inc. ("Transvaal") which later became Vertac Chemical Corp. ("Vertac"). Vertac continued to manufacture 2,4-D, 2,4,5-T and 2,4,5-TP along with other chemicals. In 1974, Transvaal began storing the barrels of toluene stillbottoms above ground. Vertac continued this practice. Some of the barrels corroded over time, allowing some of the waste to leak into the ground.
In 1979, the United States Environmental Protection Agency ("EPA") restricted 2,4,5-T and its production discontinued. In 1980, the Arkansas Department of Pollution Control and Ecology ("ADPC & E") and the United States of America on behalf of the Environmental Protection Agency ("EPA") filed separate suits against Vertac and Hercules seeking civil penalties and injunctive relief to abate the continuing discharge of toxic and hazardous wastes into the surrounding area.3 The Court granted the governments' request for preliminary injunctive relief and ordered Vertac to undertake remedial action to arrest the chemical leakage from the disposal sites. United States v. Vertac Chemical Corp., 489 F.Supp. 870 (E.D.Ark.1980).4 Because Hercules had not been in possession or control of the plant site at the time of the lawsuit, the Court did not order Hercules to undertake any remedial actions. Id. at 888.
The Court subsequently approved implementation of a negotiated remedial plan to deal with containment of wastes and monitoring. United States v. Vertac Chemical Corp., 588 F.Supp. 1294 (E.D.Ark.1984). Vertac ceased all operations at its plant in 1986.
The generation of wastes during the operations of the Plant was inherent or unavoidable but there is no evidence as to the amount of wastes generated from production of 2,4,-D, 2,45-T, 2,4,5-TP and other products during the operations of the Vertac plant from the 1950s until it was shut down by Vertac in 1986. When Vertac abandoned the Site in January of 1987, there were over 28,000 drums of 2,4,5-T and 2,4-D on site and 194 bulk storage tanks containing waste material, including 2,4-D, 2,4,5-T and dioxin. The waste in the drums was corroding the drums. The drums and bulk storage tanks were leaking. There was contamination in the buildings on the Site.
Vertac ceased to perform the remedial actions required by the Consent Decrees approved by the Court. Concerned with Vertac's inaction and its financial solvency in light of the sale of its assets and businesses to Inter-Ag third parties, the EPA and ADPC & E petitioned the Court to enforce the Consent Decree and appoint a Receiver. The Court appointed a Receiver, who was given full authority to handle the business affairs of Vertac.5
Over time, additional parties were brought in as parties engaged in the search to find all parties who might be liable for environmental harm at the Vertac Site. Cross-claims, counter-claims, third party complaints, were filed, amended and amended again or supplemented.6
A number of parties settled and entered into consent decrees. On October 12, 1993, the Court granted summary judgment against Hercules and in favor of the United States finding that Hercules is jointly and severally liable to the United States for costs incurred and to be incurred by the United States in the remediation of the Vertac Site, the Off-Site Areas and two municipal landfills used by Hercules to dispose of hazardous substances.7
Vertac stipulated that it was an owner operator and is liable under Section 107(a)(2) of CERCLA, 42 U.S.C. § 9607(a)(2) for response costs at the Site areas, the Jacksonville Crane and Weatherford Residence Sites. It also stipulated that it is a liable person as described in Section 107(a)(3) of CERCLA with regard to the Off-Site areas. Pursuant to the parties' stipulation and consent for the entry of a partial judgment of liability against Vertac, the Court found Vertac liable under Section 107(a) of CERCLA, for response costs, including interest, incurred or to be incurred by the United States at the Vertac Site, the Off-Site areas, the Jacksonville Crane Site, and the Weatherford Site, so long as those costs are not inconsistent with the NCP.8
The case went to trial on the remaining claims. The claims of the United States, Hercules and ADPC & E against Uniroyal and Uniroyal's claim in contribution...
To continue reading
Request your trial
-
U.S. v. Vertac Chemical Corp.
...40 C.F. R § 302.4. Reasor-Hill did not have a process to treat the waste water that was produced. United States v. Vertac Chem. Corp., 966 F.Supp. 1491, 1494 (E.D.Ark.1997) ("Vertac VIII"). While Reasor-Hill operated the Site, an unknown quantity of untreated chemical wastes from the produc......
-
U.S. v. Vertac Chemical Corp.
...the 2,4-D and 2,4,5-T wastes and that the equipment was contaminated even after Vertac abandoned the facility. United States v. Vertac Chemical Corp., 966 F.Supp. at 1500. The Hazardous and Solid Waste Amendments of 1984 ("HSWA") to RCRA, prohibited the land disposal of untreated hazardous ......
-
Costner v. URS Consultants, Inc.
...of the groundwater and soil. Litigation over costs of the cleanup has continued as well. See United States v. Vertac Chem. Corp., 966 F.Supp. 1491, 1495-96 (E.D.Ark.1997) (Vertac VII ). B. Throughout the years, outside parties have attempted to intervene in the Vertac site cleanup. 6 In 199......
-
Mainline Contracting Corp. v. Chopra-Lee, Inc.
...Whether arranger liability may be imposed on a party is generally a fact dependent question. See United States v. Vertac Chemical Corp., 966 F.Supp. 1491, 1500 (E.D.Ark.1997) (discussing correctness of jury instructions in action where jury decided issue whether defendant subject to CERCLA ......
-
CERCLA: convey to a pauper and avoid cost recovery under section 107(a) (1)?
...see also DANIEL RIESEL, ENVIRONMENTAL ENFORCEMENT CIVIL AND CRIMINAL [section] 12.04 n.77 (2001); United States v. Vertac Chem. Corp., 966 F. Supp. 1491, 1508 (E.D. Ark. 1997); In re Hemingway Transp., Inc., 174 B.R. 148, 172 (Bankr. D. Mass. (167) See, e.g., Joslyn Mfg Co., 893 F.2d at 83 ......