ELR Citation: ELR 20807
No(s). LR-C-92-684 (E.D. Ark. Mar 17, 1993)

The court grants environmental groups' motion for a preliminary injunction to stop the Arkansas Department of Pollution Control and Ecology (ADPCE) and its contractor from incinerating cleanup wastes from the Vertac site that contain dioxin. In response to the environmental groups' suit, the court issued a temporary restraining order (TRO) allowing the state and its contractor to conduct a test burn of dioxin-contaminated waste, but prohibited further burning of such waste pending a hearing. The hearing was held to determine whether the applicable U.S. Environmental Protection Agency (EPA) regulations governing such incineration required a 99.9999 percent destruction removal efficiency (DRE) to be achieved on the dioxin component in the waste. After the court ruled that the regulations do require such a DRE, the contracting incineration facility instigated an interlocutory appeal and the U.S. Court of Appeals for the Eighth Circuit stayed the court's TRO pending this appeal.

The court first finds that the record shows that dioxin is a hazardous chemical substance and carcinogen, which EPA's regulations require must be destroyed by incineration to a level of 99.9999 percent DRE, rather than the standard for hazardous wastes of 99.99 percent DRE. Moreover, the contract between the ADPCE and the incinerator contractor contains a specification for 99.9999 percent DRE on dioxin, not just on the principal organic hazardous constituent of hexachlorabenzene. The court also finds that the defendants failed to attempt to prove such a DRE on dioxin during the test burn and various EPA documents appear to concede that 99.9999 percent DRE cannot be achieved on dioxin when it is present in low concentrations. The court also finds that the incineration is being conducted within a few hundred feet of a well-populated residential area, the risk assessment studies presented by the defendants did not take the above problems into account, and the danger of a natural calamity can never be ruled out.

Based on this proof, the court holds that the environmental groups have established the risk of irreparable harm from incineration sufficient to sustain issuance of a preliminary injunction. The defendants have not demonstrated that dioxin is being burned at a 99.9999 percent DRE level and seem to admit that dioxin is leaving the incinerator stack at a level exceeding that standard. Given the ability of dioxin to cause cancer and noncancer effects and the incinerator's location in a residential area, there is a very real risk that humans may be exposed to unacceptable levels of dioxin if the current incineration is allowed. In addition, the risk of harm to the defendants is almost solely monetary, and the risk of harm falls more heavily on the environmental groups' members. Further, the environmental groups' probability of success on the merits is tied to their showing of potential irreparable harm, and the court must infer from defendants' failure to attempt to calculate a DRE for dioxin that a 99.9999 percent level cannot be achieved. Finally, the court holds that although both plaintiffs and defendants have the interest of the general public at hand, the fact that incineration may cause irreparable harm to the residents outweighs the uncertain conclusion that the residents may eventually be served best by incineration.

Counsel not available at this printing.