CTBITBD STATES DISTRICT COURTBAflTKRV DliTaiCT 07 MISSOURI

BA8XKUT DIVIBIOH neeOHITK) STATBS O7 AKXRICA,

Plaintiff,vs.

RUSSELL MARTI* BLISS, et al.,

Defendants.

Mo, 84-200CU)(Consolidated)

ORDER AKP MEMORANDUM

IT IS HEREBY ORDERED that the motion by the cities of

Eureka, Missouri, and Fenton, Missouri, to alter or amend the

judgment, which the Court construes as a motion to reconsider its

July ;0, 1990, order denying the cities' motion to ir.tarvane, ba

and is denied.

The cities of Eureka, Missouri, and. Fonton, Missouri

("the Cities") have filed a notion to alter or amend tha judgment,

directed at the Court's July 30, 1990, order denying the Cities

leave to intervene and file a complaint in thic action. Because

tha crdar to which tha motion is directed ia not a judgment within

tna noaning of Fad.R.Civ.P. 59(e), and, even if it were, the motion

would be untimely under Rule 59(e), the Court construes the motion

as one to reconsider the July 30 order. A^ter careful considera-

tion of the applicable lav, the memoranda submitted by the parties,

and the Court's earlier ruling and the reasons therefor, the Court

ia not persuaded to reverse or alter its earlier decision denying

the Cities' motion to intervene. The instant inoticn to altar or

amend the judgment is, therefore, denied. In announcing that

S00207636SUPERFUND RECORDS

20131

decision, the Court deems it appropriate to supplement is earlier

order and memorandum with a few additional remarks.

Ite Court stands by its earlier conclusions with respect

bo the importance of timeliness in seeking intervention and the

lack o£ ticeliness in this case. The Co-art rejects the Cities'

contention chat timeliness is to be judged rrom the point at whichthey allegedly became aware that the Missouri Department or Natural

Resources and the Environmental Protection Agency were not

adequately protecting the cities' interests. Furthermore, the

court is still conrident that the advanced age cf these con-

solidated cases, the aedia coverage thereof, the opportunities for•

public participation, and the imminent resolution of that sig-

nificant portion of the matter which the Cities belatedly address

all nilitate conclusively against any finding that the motion to

intervene was timely made.

The Court would likewise reiterate its conclusion that

the United States and the State of Missouri have, in dealing with

the not inconsiderable problems at hand, adequately represented the

interests of all affected citizens. The Court rejects any

suggestion that the government plaintiffs have somehow been unduly

conciliatory toward the corporate defendants in this litigation.

The conduct of the lawsuit has been appropriately adversarial

throughout its long history, as the size of the court files —

twenty volumes thus far of pleadings and motions -- readily

attests. The Court perceives in its consideration of the Cities'

motion to intervene no unwarranted shifting of tho burden on rhis

point. The Court was an all times aware that the governments bore

'C-^-l-?1?! 3?i 16 FrOr =. - T T O P M E i ' - ; C.-F ! CE-cTrG ~~ r276~'Cl64 -. 15

the burden of persuading the Court they had adequately represented

the Citiee1 interests, a eg 42 U.S.C. $9613(1), and the Court

concludes t&at the governments have met that burden and so

persuaded the Court.

Finally, the ccurt La confident that no evidentiary

hearing was necessary or warranted prior to the disposition of the

motion to intervene. The Court is unawajce. a£ aja. s-ct wA Vla.?,1^

proffered by the Cities in support or its notion that would nave

had any effect on the Court's decision and the bases for It. The

cities' objections co tne proposed consent decrees are based on

unsubstantiated ?ear, lay opinion, ana in many Instances actual

misconceptions about me proposed clean-up. The Cities have not

submitted or cited any expert opinion as to the inappropnater.ess

or tne proposed clean-up, wnicn has been formulated by experts, and

the court has no reason to believe that it has been formulated or

proposed in bad faitn. Insofar as the Cities have legitimate

concerns about the proposed consent decrees, they have had the

opportunity to express them during the notice and cocaent period,

and the duly submitted objections of the Cities and their citizens

have received the full consideration to which they are entitled

during the Court's contemplation of the proposed consent decrees.

For the foregoing reasons, and those expressed in the

Court's crdar and nenorandum dated July 30, 1990, the Cities'

nation to alter or amend the judgment be and is denied.

Dated: December ;:, 1990

-.06

UNITED STATES DISTRICT COURT

BJLBTJDUf DIVISION

I i ET' *— C

UVITXfi flTXTSB O7 XMEKICX,

Plaintiff,

vs.

9U8BBLI. JO&TIU BLISS, «t 4l. ,

Dofandante

MtNOENHAtT

Mo. 84-aooc(i)(Coueolidated)

Pursuant to the memorandum filed herein this day,

IT IB HEREBY ORDBRBD that the joint, motion of the United

States and the State of Missouri to enter consent decrees and final

ardera between the United States and the State of Missouri and the

Syntex and HBPACCO defendants be and is granted.

XT 10 FUXTSER OftDBRJSD, ADJUDGED and DECREED mat tne

consent decree and final order between the United States, tne state

of Missouri and the 3/ntex defendants lodged witn tnis court en

July 20, 1990, be and is entered.

IT 10 7URTHZR ORDERED, ADJUDGED and DECREED til at the

consent Jecrae and final order between the United States, the State

cf Missouri and the NEPACCO defendants lodged with -his Court en

July 26, is>90, ae and is entered.

nDated: Cscemser 51, i?90

-.29

F I L E DUNITED STATES DISTRICT COURTBXflTEJUl DISTRICT OT KI860URI

EASTERN DI7ISIOH OEC -J 1 1953

EYVQN MENDENHAUJUNITED STATES OF AltERICA, ) U. & QlSTfiJCT CQURC

) E. DISTRICT 05 MaPlaintiff, )

)VS. ) NO. 84-2000(1)

) (Consolidated)RUSSELL MARTIN BLISS, et al., )

)Defendants. )

MEMORXNPITM

This matter is now before the Court on the joint notion

of Missouri and the United States to enter two consent decrees

formulated in lengthy negotiations with two groups cf the principal

corporate defendants in this action, the Syntax defendants1 and the

NEPACCO defendants. The consent decrees were lodged with the

Court en July 24 ar.d July 26, 1990. In accordance with 42 U.5.C.

§9622(d)(2) and 23 c.f.R. §50,7, notice cf lodging or Uie consent

decrees was published in the federal Register on August 3, 1990,

at ?5 red.Rec,. 32319-20, and a ^nirty-day comraen'C period rollowed,

in which numerous comments were received. The instant motion is

accompanied by copies cr all comments and the Envircnnental

rrctection Agency's ("SPA") Kesponsiveness Summary, which contains

1 Syntax Corporation, Syntex (U.S.A.] Inc., SyntexLaboratories, Inc., and Syntex Agribusiness, inc. are hereinreferred to collectively as ''the syntax aerer.aants. "

3 Northeastern Pharmaceutical ana Chemical ccrapanyEdvin B. Michaels, one-time president and

director or KEPACCO, and John W. Lee, one-time vice-presidentand director of WEPACCC , are herein referred to collectivelyas "tr.e NEPftcca defendants. "

-' \ 5 F--;'-; 5 nr~CF*ic-"z OFF i'lE-firiC) ~ t r 2 "f, 70-5-4

responses to all submitted conmante, including concerns raised by

tho Cities of Eureka and Penton, Missouri, in their motions

regarding intervention in these cases.

Background

In the process of manufacturing Agent Orange at its

Verona, Missouri plane in 1268 and 1969, Haffraan-Taff, Inc.

-generated residues containing dioxln and stored them at the plant.

In 1969, Hoffaan-Tsff was acquired by syntex (U.S.A.) Inc., which

agreed to assume all or Hof man-Tan's liabilities as of December

21, 1368. syntex'(U.S.A.) ultimately transferred Its interest to

syntax Agribusiness. In the early 1970's, chemical manufacturing

by tfSFACCO at thu Verona plar.t generated dtoxin and trichlorophenoi

C'Tc?") by-products vhicn were added to the dioxin wastes left by

Hof'3-in-Tarr. Ultimately, NEPACCO arranged for disposal of some

or these by-product materials through defendant Independent

Chemical corporation ("IPC"); IPC in turn hired defendant Russell

Bliss to dispose of the wastes, which Bliss did by mixing them vith

vasta oil and other substances and spraying them in a r.unoer cf

sites in eastern Missouri. This consolidated litigation concerns

-wenty-eight such sites that have been found to be contaminated

with dioxin and/or TCP in levels considered to warrant health

concerns. Several of these sites, including Times Beach, have infact been found by the EPA to present a potential imninent and

substantial endangerment.

The United States has brought certain of the consolidatedactions, pursuant to the Comprehensive Environmental Response,

compensation and Liability Act ("CERCLA"), 42 U.S.C. §9601 et seg.,ar.d the Resource Conservation and Recovery Act ("P.CRA"), 42 U.S.C.

§6901 et saq. The State of Missouri has brought others of the

consolidated actions, pursuant to CERCLA and Missouri law. InNovember of 1983, the State of Missouri filed the first of these

consolidated cases against the Syntex and NEPACCO defendants,

Russell Bliss and Jerry-Russell Bliss, Inc. in reference to the

MinXer/Stout site, in January of 1984, the United States brought

an action against the same defendants plus Primerica corporation,/auvritftm National can Co.. and numerous individual landowner

defendants with respect to six other sites, Missouri brought two

additional actions against the same primary defendants in June L934

and November 1985, concerning the Bliss Ellisville and Times Beach

sites. By way of its fourth amended complaint, the United States

added 21 additional sites to its claims in March of 1989. The

twenty-eighth and final site was added to the mix by a complaint

filed by the United States in April, 13SO. The three actions in

which Missouri is plaintiff were consolidated with tha United

States' actions before the undersigned in March, 1990, in view of

his faniliarity with the issues in the litigation, developed over

six years of handling 23 separate actions covering all twenty-

eight cites.

By its order dated August 7, 1987, this Court found the

NEPACCO defendants, IPC, Russell Bliss and Jerry-Russell S

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Inc. jointly and severally liable under 42 U.S.C. $9607 for clean-up ccata associated with the fix aites na»ed in the original action

brought by the United States. Ruling on this partial suzunary

judgment notion entailed considerable exploration and explication

of both CERCLA-and the facts underlying this litigation. The courc

determir.ed that the United States made out an unrebutted prima

facie case of liability under CERCLA, having established that each

of these defendants fell vithln one of the class of liable persons

and that each site was a "facility" at which a "release" or

"threatened release" or a "hazardous substance" vas occurring,

causing the united states to incur response costs. No liability

has yet attached to the syntax defendants. The proposed consent

decrees, if entered, would resolve all pending issues in the

consolidated cases concerning the Syntax and NEPACCO defendants.

certain response actions have already been taken in

various sites, Including investigation, evaluation, excavation and

temporary storage of contaminated soil. In Tines Beach, the

Icfrgsst si the tventy-eight sites in terms of both geographic size

and the volume of contaminated wastes, excavation has not yet been

dene. Permanent remedies, including the destruction of con-

taminated materials ar.d site restoration, have yet tc be under-

taken. The United States, the State of Missouri and all defendants

who are party to the proposed Syntex consent decree agree that:

the remedial action plan adopted by E?A andembodied [in the consent decree] will attainadegree of cleanup of hazardous wastes, hazar-dous substances, pollutants and contaminantsreleased or threatened to be released into theenvironnent and [a degree of] control of

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and ^ " releases which^ asBure* protection or public

Welfar<i »• envlronaent at cne

C0n5ent decree, ,7. The court agrees with the United States

and the state or Missouri mat the consent decrees now before the

ccurt present a "comprehensive resolution of the dioxia problem in

eastern Missouri." Memorandum or Points and Authorities in Supportof joinr Motion, p. 4.

The syntax consent decree, in effect, establishes a

division of the labor necessary to complete remediation of all

twnty-eigM: sites. Under the ter s of the decree, the United

States, with Missouri's support, will undertake all further

necessary remediation and restoration of all sites but Tiaes Beach.

For their part, the Syntex defendants will be responsible for all

remediation and restoration of Times Beach, including the install*-_ *

April 1. 1991, in settlement of claims for costs incurred by the

United States in connection with the twenty-eight sites.

The consent decree is exhaustive in its specifications

for the work to be performed. The decree, itself in excess of

fifty pages, is supplemented with a site administration vorkplan,

a demolition vorkplan, a site remediation vorkplan, a CERCLA

delisting petition, a thermal treatment workplan, and a site

restoration workplan, all of which are incorporated into the

concent decree itself and explicitly enforceable. See S311.i', 14. E

and 18. This Court has reviewed all of this material (whicn effort

racruirod a considerable expenditure of ties) . Every step in the

"cleanup" process is elaborately detailed in various workplans and

sther documents viewed by the Court. This same information has

been available for public review for months (although most of the

protests indicate that the writers did not avail themselves of rnis

opportunity).

In any event, the Court will undertake to explain, In

Laymen's terna, certain aspects of the proposed clean-up, par-

ticularly those which, because unkr.own to or misunderstood fcy t.ne

public, have caused the greatest concern among tnose wno submitred

ccanents on the consent decree. The courr notes that the vast

najority or submitted comments came from citizens of Eureka and

Fentor., and appeared to ba variants of several foric letters; these

largely reiterated over and over a handful of concerns, not

supported by any scientific or technical authority, which the EPA

has addressed in its Responsiveness Summary and elsewhere, and

which the Court addresses belov.

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-N—Jl-I r r . -i?ili --CM .3 -,7'CSNt'i ' 3 •:?- ME-eDMG

II - Tho Tlaog Beach Claar)up

Contrary to popular opinion, neither the State of

Missouri nor the United States has "bargained away" its prerogative

vith regard to applicable lavs or regulations requiring permits Ccr

iha operation at Tlmea Beach_. Par«graph~~r5~of~-th«-SyT»tex-cojisera:

decree requires that each party apply for "all permits necessary

for the performance of ita obligations under this Decree and the

Work Plans." That paragraph further specifically requires the

Syntax defendants to secure a RCRA/Missouri Hazardous waste Law

permit for the incinerator facility, and requires that the permit

b-t limited to the treatment of dioxin-contaminated materials from

the twenty-eight s^tes.

Section 6 of the Thermal Treatment WorKplan requires, in

addition to the RCRA/Missouri Hazardous waste Lav permit, that the

thermal treatment project be conducted only with a CERCLA delisting

petition for residues generated by the thermal treatment, a St.

Louis county Department or Health air/construction/operating permit

and a National pollutant Discharge Elimination System Permit for

discharge of wastewater and contaminated stormwater. The consent

decree requires these permits despite the fact that, under 42

L'.s.c. §962l(e) (1), ":njo Federal, State, or Local permit shall be

required for the pcrtion of any removal or remedial action

conducted entirely onsite...."

Given that much of Times Beach is located in the five-

year flood plain of the Meranec River, flood control neasuras are

of great concern. The ronsent decree requires the construction of

:-n-.jl-;f?i .j 'II --On .5 H~"7~r'E-': CFF 1':--EI'P1C

a ring lave* around the incinerator and "ancillary operations."

Th« U.S. Amy Corps of Engineers has reviewed and approved theconceptual design ot the ring levee as set forth in the workpians,and will oversee its final design and construction. The height of

the levee will include three feet of freeboard above the loo-year

flood height. In the unlikely event that a flood should exceed the

levee's capacity, the incinerator's emergency shut-down capability

will cone into play. Furthermore, all contaminated soil handling

operations vill be in fully enclosed structures, further reducing

the potential for tha release of any contaminants into flood

waterc.

The consent decree roquiroe a gxaator level of cleanup

of Tines Beach itself than was announced in the ROD concerning

Times Beach. The originally selected remedy, found in the ROD,

called for excavation and tharrcal treatment of soil contaminated

LP. excess of 20 parts per billion ("ppb"). The settlement

negotiations from which the consent decree comes led to an

enhancement of the cleanup level to require excavation and

incineration of all soil exceeding 5-10 ppb, followed t>y placement

of a one-foot cover of clean soil or c clean soil/delistect ash

nixturo ever any remaining soil exceeding l ppb. The parties

represent to the Court that that degree or cleanup meets the Center

for Diaeaoe Control's recoajsended level for residential sites.

Many comments indicate the public's mistrust of the

temporary nature of the incinerator operations at Times Beach and

their being limited to treatment of wastes Trotn trie 23 sites. The

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consent d«cr«« and worfcplane specifically provide a timetable in

which the clean-up is to bo dona (coo Part IV below) and require

the decontamination, disnantling and removal of the incinerator

within a spacified period of tim* aftor the consent decree's

purposes aro fulfilled. Failure* to maoc the deadlines established

in the consent docroo for dismantling the incinerator would subject

the Synrex defendants to penalties up to $10,000.00 per day. See

163. Such failures could well lend to Court intervention if

necessary.

Furthermore, 114.1 of the consent decree specifically

provides:

The Parties agree and covenant that allremedial actions provided for by this Decreeare liaited to eastern Missouri Sites allegedby plaintiffs to have been contaminated as aresult of actions attributable to RUssellaartin Bliss or persons or business entitlesassociated with hin; and that the thermaltreatment unit will be removed at the con-clusion of the incineration of materials fromthose Sites in accordance witfi tne worJc Plan.

The express liaitation on tne RCRA/Kissouri Hazardous Waste Law

permit to treatment cf materials from tne 23 sites is still further

assurance that incineration at Ti es Beach will be temporary and

limited to the scope or che consent decree.

The court is persuaded of the appropriateness of Times

Beach as the sita for incineration of materials from the 28 sites.

As earlier noted. Tines Beach is the largest cf the twenty-eight

sites in terns of both geographic size and the volume of its

contaminated wastes. "Local" incineration at each site of the

contaminated materials there found is not feasible or practicable.

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The time, expense, logistics and multiplication of risx involvedare prohibitive. Some of the site* are not large enough to house

a thermal treataent unit. Incineration of ail the wastes at onesits is preferable to multiple treatment operations, and Tines

3each is the best choice for consolidated treatment, for a number

of reasons, including: (1) its size, (2) the fact that it has the

largest concentration of contaminated waste which then need nor be

transported elsewhere fnr treatment, and (3) the fact that it has

already been evacuated, but not yet cleaned up and restored.

The Syntex defendants' performance of their obligations

under me consent decree is subject to axtonsivo supervision and

monitoring by both the United States and the State of Missouri.

Federal regulations and the peraitc under which the incineration

project will operate require monitoring, much of it continuous, of

a nuaber of areas of concern, including combustion and its outputs,

emissions, ar.d emergency eye tens. As a preliminary matter, EPA,

in consultation with the State, must approve all selections of

contractors and auboontractors to be used on the Tines Beach

project. The Syntex defendants must, pursuant to }$26-27 of the

oons«tnt decree, notify the United States and the State in advance

of any sazple collection activity and make available to them "the

results of oil sampling and/or teats or other data generated...with

respect to the ioplenentation of [the] decree." Finally, pursuant

to 42 -J.a.c. $962l(c>, SPA will review the "remedial action" taken

at Tines Beach at least every rive years "tc assure that hunan

health end the environment are being protected."

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Tha Syntax defendants are responsible for the demolition

ar.d disposal of above-ground structures at Times Beach, ac van aa

the consolidation of automobiles, appliances, trach and debris,

much of which, viil be compacted and disposed of, as environmentally

appropriate, in demolition landfill cells in Times Beach. See

Demolition WorJcpian, Contaminated and non-contaminated materiala

will be sorted and treated appropriately. The Demolition Horkplan

also contains extensive provisions for tho appropriate demolition,

disposal or other treatment of noncontaminated roadways, utilities,

underground storage tanks and water wells in Tinea Beach. Certain

buildings and noncontaminatcd roadways will remain. The Site

Restoration Workp-an provides for grading, seed bed preparation,

seeding and mulching of the exposed unconteuninated soils that

result from the cleanup activity at Times Beach so as to estaDlisn

a "vegetative cover" of the land.

III. Th.e Remaining sites

In connection with the consent decrees, the SPA has

fornulated and submitted as Attachment C Its Transportation WorK

Plan for the Eastern Missouri dioxln sites. This attachment

includes a suzunary of the wcrkplan with respect to sites other than

Tines Beach, Including criteria for the selection of routes for

hauling soils from each or the sites to Tines Beach, potential haul

routes zrom each site, a spill contingency plan, and the excavation

plan ror the remaining sites. The Court here attempts to summarize

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^N-i?2-- f ~'. 'j^-.I-« P—•"•'•! : h- TPriE i ' r 'jFr i —-L."''U ". 3iT£7C)o-»

tne sa&stance of the wcrXplan and outline the EPA's respon-

sibilities with respect to the site* other than Times Beach.

At eight of the twenty-seven remaining sites, dioxin-

ccntaainated soils have been excavated and placed in inter ins

storage at their respective sitas pending cheraai treatment at

Times 3each. The volume of this soil is, of course, known. At one

of these eight, the Piazza Road site, further excavation may be

required as to a portion of the site excluded from the previous

excavation. For most of the nonexcavated sites, the EPA has been

able to estixate tha volume of contaminated soil to be excavated

and traated at Times Beach.

Soil cleanup levels for the remaining sites vili be

established by the EPA, and ail soils requiring removal to meat

health-based levels will be excavated and transported to Ti»«B

Beach for thermal treatment. The EPA will be responsible for

excavation of soils- contaminated in access of the cleanup levelsestablished. A restoration plan approved by the EPA and the

Missouri Department of Natural Resources will be put into effect,

such plan to include replacing soil, reads, landocapir.g and

structures sucn as sidewalks ar.d fences.

Final route selection is to be made by the L'PA in

accordance with the criteria and procedure set out in the Transpor-

tation *ork Plan, The criteria uaed in determining appropriate

rrzutas include euch factors as distance travelled, pavecent

strength, capacity and condition, road geometry ar.d ctner safety

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considerations, volume of traffic and avoidance of dense residen-

tial cr comneroial aones.

The soil will b« transported in standard open bed duap

trucks, lined with a plastic liner that will enclose the load and

be sealed on tcp. A canvas tarp will then be secured witn ropes

covering the entire truck bed. Much of uiie soil to be transported

is already enclosed in polyethylene-lined, polypropylene bags.

Only drivers with at least five years' experience with tfce type of

vehicle to be used, with an accident-free ccnunercial driving

rscord, and with appropriate OSHA health and safety training will

be used. Trucks will be decontaminated after leaving a contamina-

ted cone at any site, and again after delivery of their loads to

Times Seach.

The Syntex consent decree provides for a formulaic cost

sharing between the two governments as to those response costs

incurred by the united states and not reimbursed by the Syntex

defendants. see §5 14.0 & 47. Missouri is to pay 10% of the

united States' total remediation costs minus a certain percentage

or reiaSurseaent by the Syntex defendants out of their $10 Billion

payment to the United States under the consent decree.

IV. T. e Timetable

The consent decree, via the workplans, sets a timetable

cor the cleanup to be undertaken by the Syntex defendants. Part

XXI of the decree sets stipulated escalating par-day monetary

penalties fcr any period of delay in meeting the various temporal

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"milestones" enumerated in tne worKplans.3 The penalty for failing

to meet any milestone during the course of the project is excused

IS the syntax defendants timely achieve their final milestone underthe worxplans. Any fines paid are to be placed in EPA's well-

Jcnovn Hazardous Substances Superfund.

The decree sets out the plaintiffs' reservation of rights

vith respect to any additional response actions that are discovered

after the entry of the consent decree to be required at any of the

sites.* In the event that previously unknown ccnditicns or new

.nforr.aticn indicate that further renedial action is necessary and

sppropriate to assure protection of public health, welfare and tna

rinvircnaent, see J78 of the decree, the United States and the State

will ranain free:

to Institute proceedings in this action or ina new action or to issue an AdministrativeOrder seeking to compel any parson, includingthe Settling Defendant*r to perform anyadditional response actions at any Facility orto reimburse the United States or the State foradditional response actions....

Syntex consent decree, 576.

3 For example, five days' delay in meeting Milestone I,which concerns the initiation of demolition of certainstructures at Tines Baach within prescribed deadlines, would_os^ the syntex defendants S2SOO.OO. Forty five days' delaywould cost them Sl36,ooo.ao.

4 Notwithstanding this reservation of rights, the Syntexdefendants will be granted a Special Covenant Not to Sue under42 U.S.C. §9622<fHS) (B) , i.e., a release not subject DCreopening, as to "all materials whose hazardous constituentsare treated so as tc ba destroyed, eliminated or permanentlyimmobilized. " Meicorandu;n cf Points end Authorities in supportof Jaint Motion, p. 7.

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Tfat BUfcPtmc* of th« MOTftggQ cen«ent D

The NZPACCO consent decr«« provides that, in settlement

of the plaintiffs' claims agrainst the NEPACCO defendants under

CERCLA. RCRA and other federal and state laws, the NEPACCO

defendants will pay the plaintiffs $225,000.00 within thirty days

of entry of the consent decree. That amount plus $10,000.00 to be

field in reserve is attested by both the NEPACCO defendants and

their insurer to exhaust the NEPACCO defendants' property damage

insurance coverage.

Ninety percent of the payment, $303,500.00, ia to be paid

to the United States, $2,500.00 in partial satisfaction of past

response costs and the remaining $300,000.00 in partial satisfac-

tion of potential claims by the Department of the Interior Cor

natural resource daaages pursuant to 42 'J.S.C. 9607 (a) (4) (C) . See/

fl!4 of the NEPACCO consent decree. The amounts paid to the united

States will help fund studies by the Departnent ot the interior to

access the extant of any natural resource damages caused by the

Bliss-sprayed dioxin. Ten percent, or $22,300.00, will oe paid tc

the State of Missouri in partial satisfaction or the State's claims

in the consolidated actions.

Part VI of the NEPACCO decree provides for a discre-

tionary covenant not to sue, pursuant to 42 U.S.C. §9622(f)(i),

subject to reopener should previously unJcnown conditions or

information reveal that further remedial action is necessary to

protect human health, welfare ana the environment.

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"GENE-'3 I-FiCE-EDiCt T 52?t7i3t4 P.15

"IPC"), anotherIndependent PetracheaicaJ. Company

defendant in the consolidated actions, submitted coraaents in

opposition to both consent decrees. The Court agrees with

plaintiffa that the gravamen of IPC'a comments on the syntex decree

is that the EPA used an "irrational estimation of the risJcs

presented by materials at the sites" and have thus "greatly

overestimat[ed] the amount of cleanup required to reduce the 'risk'

to a minimal level." Comments or IPC on Proposed Syntax Consent

Decree, p. 7. IPC • s objection to an over-protective remedy is that

it may ultimately, in tne form or contribution sought by the Syntex

-efendar.ts, cost IPC more money tnan less protective remedies. The

Court gives this objection short shrift: the Court is pleased,

frankly, to hear i?c opine, with (unlike most of the filed

comments) purported scientific support, that the proposed cleanup

is overly conservative, and the Court is hardly persuaded that

IPC'S self-interest should derail such a carefully negotiated

solution co tne Bliss dioxin mess.

out of a similar motive, IPC complains that the deal

struc.K by the plaintiffs and the Syntex defendants leaves IFC with

too large a share of the remaining costs of the dioxin cleanup,

specifically, the costs incurred by the EPA. which total anestimated $70-5100 million. Even were the Court eager to second-

guess che apportionment of liability represented by the consant

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decree, which it is not3, the Court would not be inclined to accept

IPC'S argument, as the cost of tho Syntax defendants' "bargain" has

been estimated to exceed $SO million for the incineration alone.

Sag Table A-9 of the 9/28/88 ROD.As to the NEPACCO decree, IPC argues that the alleged

limits of NEPACCO's insurance coverage, which form the basis for

the monetary settlement embodied in the consent decree, have not

been adequately demonstrated. Plaintiffs appear to have assured

themselves en this point by declarations of the insurer and the

NEPACCO defendants themselves, and the Court ia satisfied, if

plaintiffs are, that the declarations adequately support the

settlement agreement. The Court further agrees that plaintiffs are

not without recourse to modify the consent decree in light of any

future indication that the declarations were untrue.

TVo other defendants, American National Can Canpany and

Friaerioa Corporation, have also aubnitted one page of comments,

in which the only relevant comment is their bald assertion, without

explication, that the Syntex consent decree is not consistent with

the national Contingency Plan ("NCF"). As explained by plaintiffs,

"[tjhe NCP, 4C CFR Pert 300 (March 3, 1990), is EPA' s generic

compilation of rules promulgated pursuant to Section 105 of CERCLA,

42 U.S.C. §9605, for the management of superfund clean-ups."

Keiuorandua of Points and Aurnorities in Support of Joint Met ion,

5 This is particularly so given that tne Court hasalready found IPC jointly and severally liable for cleanupcoots as co six of the sites, see the Court's August 7, 1987,order and memorandum. NO such finding has ever fceen made withrespect to the Syntex defendants.

p. 21. Treating thie aomaent with, the SOB* degree of specificity

with which it is aade, the Court, having monitored tha entire

remedy selection process, La unpersuaded that it has been done in

ssuch A way ae to violate the NCP. See particularly SPA' s Respon-

eiveneee Summary.

The Legal Standards Governing1 Bntry of the Consent Decrsea

A court:*a approval of a consent decree is discretionary,

but the court's role is linited:

"The initial decision to approve or reject asettlement proposal ia committed to the sounddiscretion of the trial judge." officers forJustice v. civil Service commission. 688 F.Zci615, 625 oth cir. 1982) .. .Unless a consentdecree is unfair, Inadequate, or unreasonable,it ought to be approved.

Securities -and Exchange commission y. Randolph, 736 F.2d 525, 529

(9th cir. 1984). Although charged with ensuring that the consent

decree adequately protects the Interests of the parties and the

public, "[^judges should not substitute their own judgment as to

optimal settlement terms for the judgment of tha litigants and

their counsel." Armstrong v. Board of School Directors. 616 F.2d

205, 315 (7tn Cir. 1380) . See also Citizens for a Better Environ-

ment v. C-orsuch. 718 F.2d 1117, 1125-26 (D.C.Cir. 1983).

The courts have long recognized that puolic policy favors

settleaents as a cost-efficient and convenient means of resolving

disputes and conserving judicial resources. See, e.g.. Kiefer oil

& Gas Co. v. McDouqal. 229 F. 933 (8th Cir. 1915) . In the

environmental context, CERCLA itself favors the use of settlement

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.;N-,: 2 -.55: ^3-27 .==01

agreements under which potantially responsible partiea will perform

ra*pon»« actions:

Th» President, in his discretion, may enterinto an agre«aent with any person (includingthe owner or operator of the facility fromwhich a release or substantial threat ofrelease emanates, or any other potentiallyresponsible person) , to perfora any responseaction...if the President determines that suchaction will b« done properly by such person.Whenever practicable and in the public inter-est, as determined by the President, thePresident shall act to facilitate agreementsunder this section that are in th« publicinterest and consistent with the NationalContingency Plan in order to expedite errecriveremedial actions and minimize litigation.

42 U.3.C. S9622(a).

cleanup plans embodied In consent decrees possess

numerous advantages. By-passing the rime and expense required by

litigation is an obvious plus. Cleanups funded and conducted by

potentially responsible parties under a consent decree relieve the

government of considerable burdens on its limited resources.

Further, negotiated solutions are born of a desirable cooperation

«nong the parties concerning the complex technical aspects of the

remedial acre Ion.

me policy in favor of settlements "has particular force

where, as here, a government actor committed to the proteccion of

the public interest has pulled the laboring oar in consrructing theproposed settlement." United States v. Cannons gnoineerina Corp..

SS9 F.2d 79, 84 (1st cir. 1990). As the First Circuit has pointedout with respect to consent decrees under §9622:

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.id

SARA'*6 legislative history naKes pellucidthat, when such consent decrees are forged, thetrial court*a review function is only to"satisfy itself that the settlement is reason-able, fair, and consistent with the purposesthat CERCLA is intended to serve. H.R.Rep. No.253, Pt. 3, 99th Cong., 1st Sess. 19 (1985).reprinted in 1986 U.S.Code Con?. & Admin.News2038, 3042.

Id., at 85.

This Court adopts the First Circuit's well-reasoned

rubric for entry of a CERCLA consent decree, in which the four

elements are procedural fairness, substantive fairness, reasonable-

ness, and fidelity to the statute. Id. at 86-93. As for proce-

dural fairness, the First Circuit directed that: '"To measure

procedural fairness, a court should ordinarily look to the

negotiation process and attempt to gauge its candor, openness, and

bargaining balance." id.- at se.Tha element of substantive fairnoec " introduces into the

equation concepts of corrective justice and accountability: a

party should bear the cost of the harm for which it ia legally

responsible." Id. at 87. Nonetheless, in view of the Court's

limited role in approving a ooncent decree:

It appears very clear...that what constitutesthe best measure of comparative fault at aparticular Superfund site under particularfactual circumstances should be left largelyto the EPA'a expertise...Put in slightlydifferent terms, the choaen measure of compara-tive fault should be upheld unless it isarbitrary, capricious, and devoid of a rationalbasis.

* The Superfund Amendments and Reauthorization Act or1986, P.L. 99-499, §101 et scq., 100 Stat. 1613.

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• '.£- = I MO

Id. The First Circuit recognized numerous considerations support-ing departure from the general apportionment rule, e.g., the

assumption of uncertain future liability by a potentially respon-

sible party ("PRP") and especially prompt and tiae-saving settle-

ment .The notion of reasonableness encompasses savora1 related

considerations: the technical adequacy of the remedies proposed

and the adequacy of the settling defendants' obligations to cover

the response costs, particularly as weighed againct the savings

represented by settlement over litigation. Td. at 90. Lastly, a

consent decree should be exauined for its fidelity to CERCLA1

"overarching principles: accountability, the desirability of an

unsullied environment, and promptness of response activities." Id.

at 91 .

Whether an evidentiary hearing on the auitability of the

consent decrees ic warranted is to be determined by this Court in

tho educated exorcise of its discretion. Id. at 93. As the Firsc

Circuit noted, "We start with the proposition that 'motions do not

usually crulrainate in evidentiary hoar ings.' District courts are

busy places and makevork hearings are to be avoided." 14. at 94,

guotiny Aoude v. Mobil Oil Corp.. 892 F.2d 1115, 1120 (1st Cir.

1989) . A hearing should be held only where it is necessary in the

circumstances for the parties' *air opportunity to present facts

and argument* and to counter opposition to trie decrees. Id.

The would-be intervenors and aany opponents of theproposed cleanup apparently fail to understand the nature of the

-~un

consent decrees herein, once entered by this court, th« decrees

have the full force ana errect of any other order of a court of lawand are enforceable thereby, paragraph 97 cr the syntex consent

decree and 134 of the NEPACCO consent decree specifically provide

that this Court retains jurisdiction in order to, among other

things, enforce compliance with the consent decrees' terms. Under^93 cf the Syntex consent decree and }30 or the NEPACCO consent

decree, naterial modifications of the decrees are subject to

approval by the Court. These decrees carry with them all the power

the Court has!

7h» Court'3 Findings and conclusions

First, the Court perceives no basis for an evidentiary

hearing. The basis for the Court's determination on this point is

aptly summarized by the Cannons Engineering court: "Thare was no

showing of any substantial need for an evidentiary hearing. The

issues were fully argued and compendiously briefed. [The Court

has] been advised of no particular natter which, fairly viewed,necessitated live testimony." Id. at 24. The Court has been

provided with avery conceivable piece of information necessary to

its decision. More than likely any hearing would only develop into

a political exercise and would not further enlighten the Court.

This court's long and intense familiarity with the

dealings between the parties to the consent decrees persuades the

court that the conduct of each set of negotiations has teen

characterized by procedural integrity. With respect to both

- 23 -

TOTflt. P.32

<iecreea, the parties have dealt with one another at arm's length

and in good faith. The criticism* of third-parties and some co-

defendants concerning the secrecy in which these negotiations were

conducted does not, in the court's opinion, vitiate the finding of

procedural fairness:

In the CEKCLA context, the government is underno obligation to telegraph its settlementoffers, divulge its negotiating strategy inadvance, or surrender the normal prerogativesof strategic flexibility which any negotiatorcherishes.. .The CERCLA statutes do not requirethe agency to open all settlement offers to allPKPS; and we refuse to insert such a require-ment into the law by judicial fiat...So longas it operates in good faith, the EPA is atliberty to negotiate and settle with whomeverIt chooses.

Id,, at 93. The confidentiality of the negotiations does not have

any bearing on the "candor, openness, and bargaining balance11 as

between the parties to the negotiation, as to which the court isfully satisfied.

The Court is equally satisfied that the consent decrees

meet the criterion of substantive fairness. The convoluted factual

ana procedural histories of the Eastern Missouri dioxin litigationraaXe a proportional approximation of aach defendant's liability

difficult, given the number and types of defendants, the number of

sites and the stage of the consolidated litigation. Each manufac-

turer defendant's share of the contaminated wastes cannot be

estimated with much exactitude. Neither is comparative fault

readily apportionable among the various defendants who had a role

in the disposal of the wastas or the landowner defendants.

- 24 -

.-AN-C^-:r = : _;:a5 --a/! -i

The Court can be guided, however, by the fact that theKEPACCO defendant* and IPC have been adjudicated jointly andseverally liable under 42 U.s.C. $9607 and no liability has yet

attached to the ayntex defendants. As earlier noted, the only

party to oppose the entry or the decrees on a substantive fairness

basis is IPC, which complains that the decrees leave too large a

shtre ?f costs looming over its head. But "[tjhat the cost ofpurchasing peace may rise for a laglast is consistent with themethod of [CERCLA]." iq. at 89. Further, IPC has underestimatedthe cost to the syntex defendants of their obligations under the

consent, decree, vnich will IDcely equal or exceed IPC's estimation

of the casts a portion of which it may ultimately assume. In sum,the Court rinds that the EPA's apportionment of liability for

purposes of the consent decrees "falls along the broad spectrum of

plausible approximations," and so should not be judicially

disturbed or second-guessed. 14. at 88.

The Court's findings with respect to tha technical

adequacy cf the remedies embodied in the consent decrees is largely

expressed in its treatment above of the substanco of the two

decrees. Based on its careful perusal of tha entire record,including the decrees themselves and the accompanying workplana,

the ROD, the various responsiveness summaries and all other

available data, the Court is persuaded not only-that the incinera-

tion plan was not arbitrarily or capriciously selected, bur that

it is in fact technically sound, appropriate and sufficient for the

remediation of the twenty-eight sites. Tha Court further believes

- 25 -

the consent: decrees1 apportionment of the coats is reasonable,

based a« it is on ana's length negotiations between major PRPs and

the prospect of a coaprehensiva solution to the Eastern Missouri

dioxin problem. The criterion of reasonableness is th^c aet byborn- decrees.

Lastly, the Court deems the cumulative effecc of those

various findings to dictate a final conclusion rhat the three-fold

objectives of CERCLA are well-served by entry of the proposed

consent decrees. The obligations of the settling defendants

tnereur.der are appropriate and further the goal of holding

responsible parties accountable in reasonable aeaeure for their

environmental nisdeeds. The proposed cleanup pronicas a welcome

end to the known contamination at the twenty-eight sites under

strict guidelines which serve the aim of expeditious response

activities.

The Court having carefully considered the factual

background of this consolidated litigation, the substance of tne

two proposed consent decrees, the comments of opposing parties and

interested citizens and the legal standards governing entry of the

decrees, and having made the necessary findings and conclusions,the Court grants the joint motion of tfas United States and tne

State of Missouri to enter concent decrees and final orders between

the United States and the state of Missouri and the syntax and

NEPACCO defendants.

Dated: December 31, 199O

"TAL P.C-3