State of MO v. St. Louis County

___________

No. 96-1001
___________

State of Missouri, *
*
Plaintiff - Appellee, *
*
United States of America, *
*
Intervenor-Plaintiff - *
Appellee, *
*
v. *
*
Independent Petrochemical *
Corporation; Russell Martin *
Bliss; Jerry-Russell Bliss, *
Inc., *
*
Defendants, *
*
Syntex Laboratories, Inc.; *
Syntex Agribusiness, Inc.; *
Syntex U.S.A., Inc.; Syntex *
Corporation, *
*
Defendants - Appellees. *
Appeal from the United States
District Court for the Eastern
United States of America, * District of Missouri.
*
Plaintiff - Appellee, *
*
St. Louis County, *
*
Intervenor-Plaintiff - *
Appellant, *
*
v. *
*
Russell Martin Bliss; *
Independent Petrochemical *
Corporation, *
*
Defendants, *
*
United States of America; *
Syntex, *
 *
Defendants - Appellees. *

State of Missouri, *
*
Plaintiff - Appellee, *
*
v. *
*
Russell Martin Bliss, *
*
Defendant. *

State of Missouri, *
*
Plaintiff - Appellee, *
*
v. *
*
Syntex U.S.A., Inc., *
*
Defendant. *

United States of America, *
*
Plaintiff - Appellee, *
*
v. *
*
Russell Martin Bliss, *
*
Defendant. *

United States of America, *
*
Plaintiff - Appellee, *
*
v. *
*
Russell Martin Bliss, *
*
Defendant. *

___________

Submitted: September 12, 1996

-2-
 Filed: January 3, 1997
___________

Before RICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON and ROSS, Circuit
Judges.

___________

ROSS, Circuit Judge.

St. Louis County appeals from the district court's1 denial of its
motion to intervene and from the court's ruling on the Syntex defendants'
motion to construe and enforce compliance with the Consent Decree in
connection with the cleanup of toxic waste in Times Beach, Missouri. We
affirm.

Various aspects of this litigation have been pending in federal court
since 1984, when the United States commenced a civil action against the
Syntex defendants pursuant to the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601, et seq., and
the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6901, et
seq., to seek remedial relief and recovery of response costs in connection
with the release of dioxin and other hazardous substances at Times Beach,
Missouri, and twenty-six other sites in eastern Missouri in the early
1970s.

On September 28, 1988, the Environmental Protection Agency (EPA)
issued a Record of Decision (ROD) in which it selected thermal treatment,
a form of incineration, as the cleanup remedy for these sites. The ROD
announced the applicable or relevant and appropriate standards (ARARs)
identified by the EPA in accordance with § 121(d)(1) of CERCLA, 42 U.S.C.
§ 9621(d)(1), with which the defendants were required to comply in the
installation and operation of the thermal treatment unit at the Times Beach
site.

1
The Honorable John F. Nangle, Senior United States District
Judge for the Eastern District of Missouri.

-3-
 In 1990, the Syntex defendants entered into a Consent Decree with the
EPA and the State of Missouri which called for the parties to remediate the
twenty-seven affected sites. Five workplans, including a Thermal Treatment
Workplan that described how the remedial work was to be performed, were
incorporated by reference into the Consent Decree. The decree and its
workplans contemplated that the Syntex defendants would apply for a
Hazardous Waste Management Permit from the EPA and the State of Missouri
to construct and operate the incinerator.

A permit application was submitted on July 30, 1993, and a draft
EPA/Missouri Hazardous Waste Management Facility Permit was issued on
December 16, 1994. This Draft Permit proposed a formula for establishing
the allowable quantity of dioxin and metals emissions necessary to ensure
that these emissions did not exceed health-based standards established by
law. This formula was based upon a site-specific Times Beach Risk
Assessment analyzing risks conservatively projected for the initial phase
of this particular incineration project. The Permit and the Risk
Assessment concluded that the project could be conducted safely so long as
less than approximately one nanogram of dioxin per dry standard cubic meter
of air ( 1 ng/m3 ) was emitted from the incinerator at any time. In
effect, for this project, the term "safely" was 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 10-6, 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.

On February 8, 1995, shortly after the hearings concerning the

-4-
EPA/Missouri Draft Permit, the County Council of St. Louis County (the
County) amended its Air Pollution Control Code by enacting an ordinance
purporting to impose new, strict standards for inclusion in air emissions
permits for any "incinerator intended to burn known concentrations of . . .
dioxin." The only such incinerator in the County was the incinerator at
Times Beach. Among other things, the ordinance purported to establish a
dioxin emissions standard of .15 ng/m3, more than six times as restrictive
as the 1 ng/m3 standard that EPA and the State of Missouri had determined
to be appropriate. Although the EPA and the State were aware the County
ordinance had been enacted two months earlier, the Final EPA Permit
subsequently issued on April 14, 1995, nevertheless retained the less
restrictive 1 ng/m3 standard.

In response to the County ordinance, the Syntex defendants filed a
motion requesting the district court to construe and clarify their
obligations pursuant to the Consent Decree. The United States supported
Syntex's motion. After the Syntex defendants filed their motion to
construe, the County filed a motion to intervene as a matter of right, or
in the alternative for permissive intervention, arguing that it had an
interest in the interpretation and enforcement of its ordinance. The
district court solicited a memorandum from the County addressing the issues
raised in both the motion to intervene and the motion to construe.
On August 15, 1995, after considering the County's memorandum, the
court denied the County's motion to intervene as a matter of right, but
stated that its "request to permissively intervene . . . has effectively
been granted," as the County had the opportunity to file a brief in
opposition to Syntex's motion to construe. The court subsequently entered
an order declaring the County ordinance "inapplicable to the Times Beach
project" and limiting the scope of the County air permit to "control of
conventional air pollutants, not including dioxin." The court concluded
the Consent Decree did

-5-
not obligate the parties to comply with the newly-enacted County ordinance.
We do not discuss the intervention issue in detail because even if we were
to assume the court erred in denying the motion to intervene, any error was
harmless given the fact that the County had the opportunity to present its
position regarding Syntex's motion to construe and effectively was heard.
Instead, we turn to the substantive issue presented in this appeal.

In reviewing a district court's interpretation of a consent decree,
this court must look to rules of contract interpretation. United States
v. Knote, 29 F.3d 1297, 1299 (8th Cir. 1994). The review is de novo where
the interpretation is based solely on the written document and clearly
erroneous where the interpretation is based on extrinsic evidence. Id. at
1299-1300. However, when interpreting the meaning of a consent decree, "we
are not to ignore the context in which the parties were operating, nor the
circumstances surrounding the order. This is because a consent decree is
a peculiar sort of legal instrument that cannot be read in a vacuum." Id.
at 1300 (citation omitted). A consent decree is "a kind of private law,
agreed to by the parties and given shape over time through interpretation
by the court that entered it. We therefore give a large measure of
deference to the interpretation of the district court that actually entered
the decree." Id. (citation omitted).

The County now argues that the parties to the Consent Decree agreed
that Syntex would submit to the County's permitting authority, even though
they were not required to do so by federal law. While the Thermal
Treatment Workplan expressly acknowledges that under § 121(e)(1) of CERCLA,
no local permit is required for any removal or remediation action conducted
onsite, the Syntex defendants nevertheless agreed to apply for air, water
and hazardous waste permits to construct and operate the thermal treatment
unit, including a "St. Louis County Department of Health air
construction/operating permit for the Thermal Treatment Unit."

-6-
It is this clause in the workplan upon which the County maintains it has
authority to enforce its 1995 ordinance.

The County overlooks the fact, however, that federal regulations
provide that all ARARs are "frozen" as of the date of the ROD unless the
EPA determines that new standards are "necessary to ensure that the remedy
is protective of human health and the environment." See 40 C.F.R.
2
§ 300.430(f)(1)(ii)(B)(1). This regulatory requirement was specifically
incorporated into the Consent Decree and its attached Thermal Workplan.3
The EPA's rationale for freezing the applicable standards as of the date
of the ROD is to prevent "continually changing remedies to accommodate new
or modified requirements," which would "adversely affect the operation of
the CERCLA program, [and] would be inconsistent with Congress' mandate to
expeditiously clean up sites." 55 Fed. Reg. 8666, 8757 (1990).

The district court correctly ruled that the "EPA has not and could
not logically make a determination that the County's new .15

2
40 C.F.R. § 300.430(f)(1)(ii)(B)(1) provides:

Requirements that are promulgated or modified after ROD
signature must be attained (or waived) only when
determined to be applicable or relevant and appropriate
and necessary to ensure that the remedy is protective
of human health and the environment.
3
The Workplan provided in part:

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 Workplan, at 6-11. See also Consent Decree, ¶
6-7.

-7-
ng/m3 standard is 'necessary,' since it has already determined in its
recent Final Permit that approximately 1 ng/m3 is adequate." The EPA was
aware of the ordinance standards when it issued its Final Permit and
declined to adopt the stricter standards. The EPA did not make the
determination that a stricter dioxin emission standard was necessary to
protect human health and the environment. In fact it implicitly rejected
this standard by choosing not to adopt it in the Final Permit.
Accordingly, federal law does not permit the modification of the dioxin
emission standard at this late date.

We also reject the County's assertion that the workplan authorizes
the County to impose dioxin standards after the September 1988 freeze date.
Notwithstanding that the Thermal Treatment Workplan appended to the Consent
Decree reflects a limited agreement among the parties that Syntex would
apply to the County for a permit regarding certain air emissions from the
incinerator, that agreement only mentions certain conventional pollutants,
not including dioxin. This provision never contemplated that seven years
later the County would amend its air emissions ordinance in such a
restrictive manner.

The workplans do not suggest an intent by the parties to alter or
waive the fundamental proposition in federal law that ARARs are frozen as
of the date of the ROD. Nowhere does the workplan grant the County
authority to unilaterally modify the ARARs established in the ROD. To the
contrary, the Thermal Treatment Workplan specifically states that the ARARs
are frozen as of the date of signature of the ROD, absent an EPA finding
that an alteration is necessary to ensure the protection of human health
and the environment. As stated previously, the EPA has made no such
finding.

Despite its awareness of the project, the County did not ask

-8-
the state to nominate any standard regarding dioxin emissions to be
included in the ROD in 1988. Its ordinance was not approved until February
8, 1995, almost seven years after the ROD froze the relevant standards.
The County cannot now alter these standards by inserting more restrictive
language into its county air permit. See United States v. Akzo 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).

The County's ordinance regarding the air emissions of dioxin is
inconsistent with federal law and is inapplicable to the Times Beach
project. The judgment of the district court is affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

-9-