UNITED STATES ENVIRONMENTAL PROTECno
WASHINGTON, D.C. 20460
SEP 2 7 B95
September 15, 1995
^^
GENERAL COUNSEL
MEMORANDUM
SUBJECT: U. S. District Court Decision Interpreting Certain CERCLA ARARs
Provisions Favorably to the United States
FROM: Laurence MGroner l-*
Attorney
Solid Waste and Emergency Response Division (2366)
THROUGH: Lisa K. Friedman
Associate General Counsel
Solid Waste and Emergency Response Division (2366)
TO: Elliott P. Laws
Assistant Administrator
Office of Solid Waste and Emergency Response (5101)
Steven A. Herman
Assistant Administrator
Office of Enforcement and Compliance Assurance (2201)
On August 15, 1995, Judge Nangle issued an order in U.S. v. Bliss, et al.. C.A. No. 84-
200C-1 et sea,., slip opinion (E.D. Mo. Aug. 15, 1995), which concerns operation of the
incineration remedy selected for cleanup of the "Missouri Dioxin sites". This order provides
precedent favorable to the United States which may be useful in disputes concerning the elements
of Applicable or Relevant and Appropriate Requirements ("ARARs") under CERCLA and the
National Contingency Plan ("NCP"). A copy of the order is attached for your review
These are twenty-eight discrete sites in eastern Missouri which were contaminated
with dioxin in the early I970's.
Printed on Recycled Paper
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Background
In September, 1988, EPA signed the Record of Decision (." ROD") selecting an
incineration remedy for disposition of hazardous substances from these sites. In December, 1990.
the Court entered a consent decree settling the "Syntex Defendants'" ("Syntex") liability to the
United States and to Missouri in this matter.. Syntex agreed in the decree, among other things, to
construct the incinerator and to obtain two permits concerning its operation: a RCRA/Hazardous
Waste Management Permit from the United States and Missouri (the "RCRA%srnii«:"), and an air
emissions permit from St. Louis County (the "County Permit"). • . ; • \
In December, 1994, EPA and Missouri jointly issued the draft RCRA Permit,
which permitted a dioxin emission level of 1 nanogram ("ng") per cubic meter In February, 199S,
St. Louis County promulgated an ordinance and issued the County Permit, each of which allowed
a far more stringent dioxin emission level of. 15 ng/cubic meter. -In April, 1995. EPA and
Missouri issued the final RCRA permit, with the dioxin emission limit unchanged from their draft
permit.
The Litigation
. «
In May, 1995, Syntex filed a motion to construe and enforce the consent decree,
representing among other things that it believed it was not required to comply with the County
Permit. The United States filed a memorandum in support of the Syntex motion The United
States argued among other things that the understanding of all the panics at the time of entry of
the consent decree was that the County Permit would concern exclusively "conventional"
pollutants, that only the RCRA Permit would concern dioxin emissions, and that in any event the
County Permii air emissions level did not-constitute an ARAR which Syntex would be required to
meet.3
The Decision
Judge Nangle decided for the United States and Syntex. He ruled that the
applicable dioxin air emission standards for the incinerator are limited to those set forth in the
RCRA Permit, and that the scope of the County Permit is limited to conventional air pollutants
- This notwithstanding § 12i(e)(i) of CERCLA, 42 U.S.C § 9621(e)(l). which
provides that "[njo Federal, State, or local permit shall be required for the portion of any
[response] action conducted entirely onsite .. "
Also before the Court were St. Louis County's motion to intervene as plaintiff, either
as of right or permissively. and its memorandum in opposition to the Syntex motion, filed in June
and July, 1995, respectively.
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In his ARARs analysis, Judge Nangle concluded that" ARARs can be State or
federal ARARs but not local", sJififig. at 9 (citing § 12l(d)(2)(A)(ii) of CERCLA, 42 U.S C.
§ 962 l(d)(2)(AXu)), and that therefore
the County permit.. . cannot be an ARAR even if it were
to otherwise meet the requirements for an ARAR, which it
does not. .
Id. This is, so far as we are aware, the first time that this issue has been addressed in a court
decision. ••-•-.
Continuing this analysis, the Court found that the County Permit would fail to
qualify as an ARAR on two additional grounds. First, the Court found that, "to be an ARAR, a
standard must be of general applicability", jd.(citing40 C.F.R. § 300.400(g)(4)), and it determined
that the County Permit was not, applying as it did only to the single incinerator in the State
"intended" to burn dioxin. Second, the Court found that the County tailed to show that the
County Permit's requirements, promulgated as they were well after issuance of the ROD, were
"necessary to ensure that the remedy is protective of human health and the environment". The
Court noted that this showing must be made in order to impose requirements established after •
ROD signature, because ARARs are "frozen" at the time of signature except in unusual
circumstances. Id. at 10, 12 (quoting 40 C.F.R. § 300.430(f)(J)(ii)(B)(l) and citing §
121(d)(2)(A)(ii) of CERCLA, 42 U.S.C. § 9621(d)(2)(A)(ii)).'
Impact of the Decision
The principal impact of this decision may be to provide useful precedent for the
proposition that requirements established by governmental entities smaller than states may not
constitute ARARs under CERCLA. In addition, it may signal that courts in analogous ARARs
disputes will not defer to state-established environmental requirements without a searching
analysis of whether they comport with CERCLA and NCP ARARs requirements. In particular,
while the concepts of "freezing" ARARs, and of requiring "general applicability", are already
contained in the NCP, it will be helpful to have a decision in which the court affirmed the
application of the NCP to a specific set of facts. .
The Court also cited the fact that the County had not nominated its standard as an ARAR
before the ROD was finalized. This provides helpful precedent for cases where states and other
parties seek to raise issues for the first time after the ROD is signed.
Please contact me at (202) 260-4022 if you have any questions regarding this
decision. .
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Attachment
cc: Jon Cannon
.Scott Fulton
GaryGuzy
Marcia Muikey
Linda Boornazian
Jerry Clifford
Sandra Connors
ORC CERCLA Branch Chiefs
Regional Counsel, Regions I-X
Waste Division Attorneys
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V. A
UWZTEB STATES DISTRICT COURT
EASTER* DISTRICT OP MISSOURI
CASTER* DZVZSZOV
URITED STATES OF AMERICA,
Plaintiff,
vs.
RUSSELL MARTI* BLISS, «t ml.,
Defendants.
FILED
AU61
U.S. DISTRICT COURT;.
E. DISTRICT OR MO.
Civil Action Ros.
84-200C-1,
S9-351C-1 through
S9-371C-1 and
90-65«C-1
(Consolidated)
STATE OP MISSOURI,
Plaintiff,
I1TDEPEVDE1IT PETROCEEMICAL
CORPORATZOH, «t'•!., .
D«f•ndaata.
Civil Action Mo.
83-2670C(2)
STATE OP MISSOURI,
Plaintiff,
RUSSELL MARTI* BLISS, et al..
Defendants.
Civil Action Mo.
S4-1447C(«)
STATE OP MISSOURI,
Plaintiff,
vs.
SYHTEX (U.S.A.) Inc., et al.,
Defendants.
Civil Action Ho,
S5-2S56C(6)
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This matter is before the Court on the Motion of the
Syntex defendants1 asking the Court to construe, effectuate and
\
enforce the Consent Decree as to the 5yntex -defendants' obligations
to proceed with the implementation of the Deere* in light of a
recent ordinance enacted by the St. Louis County Council. Also
before the Court is St. Louis County's Motion to Intervene as
plaintiff and St. Louis County's Memorandum Opposing the Syntex
Defendants' Motion to Construe, Effectuate and Enforce Compliance.
X. Motion to Intervene
St. Louis County seeks to intervene in this litigation as
plaintiff as of right. Fed.R.Civ.P. 24(a). Plaintiff asserts that
because the Court has been asked to interpret an ordinance of St.
Louis County, no other party will adequately represent St. Louis
County's interest. Alternatively, St..Louis County argues that it
should be allowed to permissively intervene in the litigation.
Fed.R.Civ.p. 24(b).
In order to intervene as a matter of right, one must make
a timely application, nust have a recognizable interest in the
subject matter of the litigation, the interest must be one that
might be impaired by the disposition of the litigation, and the
interest must not be adequately protected by the parties. Mille
Lacs Band of Indians v. State of Minnesota. 989 P.2d 994, 997 (8th
1 Syntex Corporation, Syntex (U.S.A.) Inc., Syntex
Laboratories, Inc., and Syntex Agribusiness, Inc. are herein
collectively referred to as "the Syntex defendants." The entity
performing work pursuant to this Court's Consent Decree is Syntex
Agribusiness, Inc., referred to as "Agribusiness."
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Cir. 1993). "The timeline** of the motion to intervene is a
threshold consideration." United States v. Bliss. 132 F.R.D. 58,
59 (E.D.Mo. 1990). Timeliness is left to the Court's discretion
and is determined by all of the circumstances. Three factors
receive special consideration, however: how far the proceedings
have gone when intervention is sought, the prejudice swhich delay
•-',.. -•£"
may cause to the parties, and the reason for £he ^delay. 14.
Inc.. 772 F.2d 401, 403 (8th Cir. 1985)).
St. Louis County's motion to intervene clearly does not
meet the timeliness requirement in this case. The litigation was
commenced in 1984 and the Consent Decree entered in 1990. The
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>
County has long been avare of the litigation as evidenced by its
comments in September, 1990; on the proposed Consent Decree through
its then County Executive B.C. Mil ford. Moreover, this case had a
high media profile. The prejudice of any delay to the original
parties would be great given that both the Syntex defendants and
the United Stats* have'spent millions of dollars proceeding under
the Consent decree. Accordingly, St. Louis County does not meet
the requirements to intervene as a matter of right.
St. Louis County's request to permissively intervene in
this case has effectively been granted. It appears from the
County's motion to intervene that the County merely seeks to
address the issues raised in Syntax's motion. The County has filed
its brief opposing the motion and the Court has considered it in
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its ruling on Syntex's motion. Therefore, the County has had its
views on this matter represented as to those issues.
II. Motion to Construe, Enforce, and Effectuate Compliance with
the Consent Decree
In their notion, the Syntex defendants have represented
that they do "not believe that they are required to attempt to
comply with the St. Louie County ordinance. However, the Syntex
defendants have indicated that they are fearful of proceeding
without clarification and guidance from this Court as to whether or
how the St. Louis County ordinance affects their obligations under
the Consent Decree. Having considered the motions and pleadings of
the parties, including St. Louis County's memorandum opposing
Syntex's motion, the Court finds as follows: '•
A. riHPIHCS OF FACT
1. This litigation has been before this Court since
1984. It initially involved twenty-eight different sites in
Eastern Missouri that were contaminated with dioxin in the early
1970's. Dioxiri-contaminated materials from eleven of these sites
have already been excavated and stored*
2. After years of heavily-contested litigation and
lengthy negotiations, the United States and the State of Missouri
reached a settlement with the Syntex defendants that calls for the
parties to remediate Times Beach and twenty-six other Eastern
Missouri sites. This Court, in its Memorandum Opinion, reviewed in
great detail the Consent Decree, EPA's September 29, 1988 Record of
Decision (sometimes referred to herein as the "ROD") selecting the
incineration remedy, and the five Syntex Work Plans incorporated by
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reference into the Decree, including the Site Administration,
Demolition, Remediation, Thermal Treatment, and Restoration Work
Plane. United State* v. Bliss. 133 P.R.D. 559 (E.D.Mo. 1990).
This Court -concluded that the Consent Decree, calling for
incineration as the selected remedy, "was not arbitrarily or
capriciously selected, but that it is in fact technically sound,
appropriate and sufficient for remediation of the . , . sites.*
Id- *t 570.
3. The Consent Decree and its Work Plans contemplated
that the Syntex defendants would apply for a Hazardous Waste
Management Permit from the United States Environmental Protection
Agency ("EPA") and the State of Missouri to construct and operate
•
the incinerator. By reviewing this permit application and
conducting any necessary health risk assessments concerning the
incinerator, EPA and the State of Missouri would fulfill their
statutory mandates to protect human health and the environment.
Agribusiness submitted its permit application on July 30, 1993.
This application exceeded 10 volumes of material and required over
six months to produce. It involved a massive effort by a full
range of health, safety and environmental experts. A governmental
review of the permit application and the attendant health issues
has been ongoing since July of 1993, which has required input from
numerous governmental agencies, including EPA, the Agency for Toxic
Substances and Disease Registry (a component of the United States
Public Health Service), the Missouri Department of Health, the
Missouri Department of Natural Resources ("MDNR"), and the St.
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Louis County Department of Health, as well a* numerous independent
consulting firms retained by those agencies.
4. A draft EPA/Missouri Hazardous Waste Management
Facility Permit ('Draft Permit*) was issued on December 16, 1994.
This Draft Permit proposed to establish the allowable quantity of
dioxin and metals emissions by way of a formula designed to assure
that these emissions did not exceed health-based standards
established by law. This formula was based upon a site-specific
Times Beach Risk Assessment, also issued by the EPA in draft form
in late 1994, analyzing risks conservatively projected for the
initial phase of this particular incineration project. The Permit
and the Risk Assessment concluded that, so long as less than
•
»
approximately one nanogram of dioxin per dry standard cubic meter
of air* was emitted from the incinerator at any time, the project
could be conducted safely. For .this project, the term "safely" has
been defined by EPA and the State of Missouri as not subjecting
:even the most heavily exposed individuals to more than a one in a
million chance of developing cancer. This level of risk, which is
also often expressed as 1 x 10"*, constitutes the most stringent
level that EPA is authorized to impose upon any Superfund project.
40 C.F.R. 300.430(e)(2). On January 31, 1995, a public hearing was
held concerning the Draft Permit. Written comments were also
invited and several hundred pages of suggestions and reactions were
received.
* One nanogram is one billionth of a gram. Hereafter, this
unit will be referred to as "1 ng/mj".
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5. On February 8, 1995, shortly after the hearings
concerning the EPA/Missouri Draft Permit, the County Council of St.
Louis County, Missouri, approved Ordinance Ho. 17,420, which
amended St.. Louis County's Air Pollution Control Code by adding the
following provision to Section 612.180: .
No [County air] permit shall be issued for operation of
an incinerator intended to burn known concentrations of
2,3,7,8-tetrachlorodibenzo-p-dioxin (TCDD) unless it is
first demonstrated in emissions burns that emissions of
toxic equivalents shall not exceed 0.15 ng./dry standard
cubic meter as demonstrated .on feed stock, nor may any
such incinerator continue to operate if this emission
standard is violated. The operator of any such
incinerator shall conduct periodic testing of emissions
and shall maintain a log of testing results which shall
be open for inspection.
Among other things, this ordinance purported to establish (without
• i
any supporting findings or justification) a dioxin emissions
standard of .15 ng/m', more than six times as restrictive as the 1
ng/mj standard that EPA and the State of Missouri had determined
(in their Draft Permit and Risk Assessment) to be appropriate to
protect human health and the environment.
6. On April 14, 1995, EPA and Missouri isaued the final
Hazardous Waste Management Facility Permit ("Final Permit") in
conjunction with a "Responsiveness Summary'', in which they
discussed the comments received from the public concerning the
Draft Permit. After careful consideration, and based upon their
Risk Assessment, which had been finalized on March 28, 1995, EPA
and the State left intact their original formula for establishing
dioxin and metals emission limits that had been introduced in the
Draft Permit. As a consequence, under their Final Permit,
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emissions from the incinerator are restricted to less than
approximately 1 ng/m* of dioxin at any tine, and the conservative
and protective 1 x 10'* health-based standard has been retained from
their Draft Permit. Although EPA and Missouri were well aware of
the issuance of the County ordinance more than two months, earlier,
they did not adopt the more restrictive 0.15 :ng/»J standard
'• .-:y.j--'- ., - .
established by that ordinance; they found Jjistead that
approximately 1 ng/m3 was protective of .human health and the
environment.
7. The Consent Decree calls for this Court to retain
jurisdiction over the Decree and the parties. Specifically, the
Decree provides as follows:
•
This Court will retain jurisdiction for the purpose of
enabling any of the Parties to apply to this Court at any
time for such further order, direction and relief as may
be necessary or appropriate for the construction or
modification of this Decree or to effectuate or enforce
compliance with its terms, or to resolve disputes in
accordance with the Dispute Resolution provisions herein.
Paragraph 97.
8. Syntex has demolished and landfilled more than 600
houses and structures at Times Beach. It has successfully
remediated all dioxin. contamination at Times Beach, and more than
20, 000 cubic yards of excavated material are safely stored in
buildings at Times Beach. The company has constructed a massive
ring levee to protect the excavated materials and the incinerator
from flooding events. It has prepared and submitted hazardous
waste, air and water permit applications for activities at Times
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Beach. Work has already begun to prepare the eit« for
installation.
fl. ^Conclusions of Law
-1. /ARARs can be State or federal ARARs but nyt local.
The SPA points out in its .brief that all references to
non-federal applicable or relevant and appropriate rreguirements
"'•''*'•
("ARARs") in both CERCLA and the national Contingency JPlan refer to
State, rather than local, ARARs. See e.g., 42 U.S.C. $
962l(d) (2) (A) (ii). Therefore, the County permit at issue cannot be
an ARAB even if it were to otherwise aeet the requirements for an
ARAR, which it does not, as discussed below.
2. The County Permit is not of one of general.
^^^^-^^.^•fc-i
applicability.. To be an ARAR, a .standard must be of general
applicability.
For purposes of identification and notification of
promulgated state standards, the term promulgated means
that the standards are of general applicability and are
legally enforceable.
10 C.F.R. 5 300.400(g) (4) (emphasis in original). The emissions
standard in the County Ordinance applies only to incinerators
"intended to burn known concentrations of 2,3,7,8-tetracholorodi-
benzo-p-dioxin." Since the Tines Beach incinerator is the only
incinerator in the County and State "intended" to burn dioxin, the
standard is not one of general applicability.
3. Applicable Standards are Frozen as of 199|. The
Consent Decree, the Work Plans, and the Federal regulations
applicable to all Superfund projects generally require that the
remedial action selected in the Record of Decision (the "ROD") must
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attain only those ARARs identified at the time of the ROD, which in
this case was September 29, 1988. Requirements promulgated after
the ROD is issued oust be determined by EPA to be "necessary to
ensure that the remedy is protective of human health and the
environment" in order to become applicable:
Requirements that are promulgated or modified aft«r ROD
signature must be' attained (or waived) «nly when
determined [by EPA] to be applicable or relevant and
appropriate and necessary to ensure that the remedy is
protective of human health and the environment.
40C.F.R. 300.430(f)(l)(ii)(B)(l)(emphasis added). This regulatory
requirement was incorporated into the Consent Decree and its
attached Thermal Work Plan:
The Work, as defined in the Consent Decree, must attain
a requirement that is promulgated or modified after
September 29, 1988 (the date of signature of the ROD)
only when the EPA Administrator (or his delegate)
determines, upon a finding based-on the best scientific
judgment available'to EPA, that such requirement is . .
. necessary to ensure that the Work is protective of
human health and the environment ....
Thermal Treatment Work Plan at Page 6-11. See also Consent Decree
at Paragraphs 6 and 7.
EPA's rationale for freezing the applicable standards as
of the date the ROD was signed is explained in the preamble to its
March 8, 1990 rulemaking concerning Superfund regulations:
[I]t is necessary to -freeze ARARs* when the ROD is
signed rather than at initiation of remedial action
because continually changing remedies to accommodate new
or modified requirements would . . . disrupt CERCLA
cleanups, whether the remedy is in deeign, construction,
or in remedial action. Each of these stages represents
significant time and financial investments in a
particular remedy . . . . If ARARs were not frozen ...
promulgation of a new or modified requirement could
result in a reconsideration of the remedy and a re-start
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of the lengthy design process, even if protectiveness j.»
not compromised. This lack of certainty could adversely
affect the operation of the CERCLA program, would be
inconsistent with the Congress' mandate to expeditioualy
cleanup sites .... neither the explicit statutory
language nor the legislative history supports a
conclusion that a ROD aay be subject to indefinite
revision as a result of shifting requirements.
55 Fed. fitfl. 3666, 8757.
EPA has not and could not logically make a determination
that the County's new .15 ng/m3 standard is "necessary", since it
has already determined in its recent Final Permit that
approximately 1 ng/m* is adequate. Zn fact, EPA was aware of the
County ordinance standards when it issued its Final Permit and Risk
Assessment and declined to adopt that ordinance's stricter
standards. The County Ordinance had been approved in February and
thus preceded EPA's Final Permit by more than two months. Finally,
the most stringent level of protection that EPA is allowed to
impose upon any Superfund project is one in a million (1 x 10*')
risk. 40 C.F.R. 300.430(e) (2) . Since the 1 ng/m3 emission
standard in the Final Permit correlates with that one in one
million risk level, EPA can go no lower than 1 ng/m3 in its
emissions standards.
4 . The County Ordinance is Inapplicable Because it Was
Passed After 198$. Since the St. Louis County ordinance was not
approved until February 8, 199.5, more than seven years after the
date the ROD froze the relevant standards, it is not applicable to
the Times Beach project. Nor can the County alter this fact by
inserting the more restrictive language of the ordinance into its
county air permit. See 40 C.F.R. S 300.515(d) (1) ; U.S. v. Ak»o
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Coatings of America. Inc.. 949 F.2d 1409, 1454-55 (6th Cir.
1991) (once a consent decree is entered by a federal court under
CERCLA, alternative state remedies may not be pursued).
5. The County Did Wet Ava^l Itself of S*vt>r^
Opportunities to A^^*»pt»t to Make its Dioxin %pjfs-.'**|>ns Standard
Applicable to this Prciect. In the selection, -«f. « Superfund
Remedy, EPA has established a procedure whereby a state3 can
nominate candidates for ARARs, prior to the selection of the remedy
in the Record of Decision. Zt is then EPA's responsibility to
review each candidate requirement to determine if it meets the
statutory prerequisites that will qualify it for inclusion in the
Record of Decision. 40 C.F.R. 300.515(h) (2). The County did not
nominate any standard regarding dioxin emissions to be included in
the Record of Decision in 1988. Furthermore, the Superfund statute
specifically requires that the nomination of more stringent ARARs
must be "timely", i.e.. before the ROD is finalized. 42 U.S.C.
9621(d)(2)(A)(ii). Seven years after the ROD is signed can hardly
be considered timely. Moreover, as discussed above, only recently
has the County requested to intervene in this litigation. For all
of these reasons, the County's regulation concerning dioxin
emissions is. inapplicable to this project.
6. The Work Plan Does Not Authorize the Ccunty to j"pp<->«*
Dioxin Standards Passed After 1988. By statute and regulation, a
Superfund project does not need to apply for federal, state, or
' The County could have found a way to communicate its views
through the State.
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local permits in order to proceed. 42 O.S.C. $9621(e)(l); 40
C.F.S. 300.400(e)(l). However, th« Thermal Treatment Work Plan
appended to the Consent -Decree reflects a limited agreement among
the parties to the Consent Decree t&at Syntex would apply to the
St. Louis County Department
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this cave in 1988), as described above. Nowhere docs the Work Plan
grant the County authority to unilaterally modify the ARARs
established in the Record of Decision. To the contrary, the
Thermal Treatment Work Plan specifically states as follows:
The Work, as defined in the Consent Decree, oust attain
a requirement that is promulgated or modified after
September 29, 1988 tthe date of signature «f ^the ROD)
only when the EPA Administrator (or hie llelegate)
determines, upon a finding based on the best scientific
judgment available to EPA, that such requirement is
applicable or relevant and appropriate, and necessary to
ensure that the Work is protective of human health and
the environment ....
Page 6-11. No such finding of necessity has been or caa logically
be made by EPA in this instance: since EPA has already determined
that 1 ng/m3 is protective of human health and the environment,
then the County's more restrictive standard of .15 ng/mj is clearly
not "necessary" to insure such protection. Consequently, the
County ordinance cannot be made applicable to this project.
7. The Ordinance Will Impede Troplementation of the
Consent Decree. Upon inspection of the County's permit for this
project, it appears that the County intends to apply its new
ordinance to this project, notwithstanding the provisions of
Federal law, the Consent Decree, the Work Plans and the
EPA/Missouri Final Permit. The St. Louis County standard has an
adverse effect on this critical Superfund project, because the
incinerator operator nay not be able to measure, much less
consistently achieve this standard. Interference by other
compounds may be such that laboratory equipment cannot detect
dioxin emissions below .15 ng/m1, and, therefore, the Syntex
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defendant* could not "demonstrate" having achieved the standard as
required by the St. Louie County ordinance and permit even if no
dioxin mere detected. In addition, the County ordinance contains
other objectionable provisions that are at odds with the
State/Federal Demit.
8. Exclusive Jurisdiction lies with "this Court.
Exclusive jurisdiction for direct or indirect challenges or attacks
concerning the response action pursuant to the Consent Decree in
the United States v. flllss natter lies with the United 'States
district courts and, specifically, this Court, since continuing
jurisdiction over the Decree has been retained. Consent Decree,
Paragraph 97? 42 O.S.C. 5 9613(b). The fact that EPA and the State
•
issued permits for the project does not create any independent
jurisdictions pursuant to the Resource Conservation and Recovery
Act, or .otherwise, in any other court. The fact is clearly stated
in both EFA's and the State's permits.
WHXRZFORC, for all the above stated reasons, this Court
orders as follows:
1. The regulatory standards applicable to this Superfund
project are limited to those enumerated in the 1988 Times Beach
Record of Decision, along with any additional standards that EPA
has subsequently determined to be applicable or relevant and
appropriate, and necessary to protect human health and the
environment; and
2. The only permits appropriate for this on-site
Superfund project are those specifically identified in the Consent
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Decree and Work Plans, and that the scope of said permits is
limited to that described in the Consent Decree and Work Plans; and
3. The scope of the air permit to be secured from St.
Louis County for the Tiaes Beach incinerator is limited to control
of conventional air pollutants, not including dioxin; and
4. St. .Louie County Ordinance No. 17,420, *nd Conditions
of the St. Louis County Air Pollution Control Permit 45942 related
thereto are inapplicable to the Times Beach project for the reason
that they are inconsistent with Federal lav and regulations, the
ROD, the Consent Decree, the Work Plans, and the EPA/Missouri
Hazardous Waste Management Facility Permit; and
5. This Court will retain continuing jurisdiction over
•
the Consent Decree and the Parties to this matter and, therefore,
exclusive jurisdiction fpr direct or indirect challenges or attacks
concerning this natter lies with this Court; no other court has
jurisdiction pursuant to the Resource Conservation and Recovery
Act, or otherwise, by virtue of the issuance of the EPA/Missouri
Hazardous Waste Management Facility Permit.
Dated: August 15, 1995
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