PCB cleanup back in court

Sarah Morin
© Bloomington Herald Times
June 12, 2006

Different opinions on how to continue cleaning up and monitoring PCBs in Monroe County and the cost and responsibility for doing so have landed the issue back in court.

Government bodies and CBS Corp. have yet to reach an agreement on how to settle the decades-old environmental problem.

A status conference with the parties is scheduled June 28 in U.S. District Court in Indianapolis, according to local attorneys Bill Steger and Geoff Grodner.

CBS requested the conference and court intervention to help break the impasse between it and the government.

"This approach has been effective in helping us reach amicable settlements on other issues related to the sites in the past. CBS remains committed to working with EPA and local representatives to arrive at decisions for the final stages of the cleanup of the sites," said CBS spokeswoman Shannon Jacobs by e-mail.

But if agreement still can't be reached, litigation could be on the horizon as well as vacating a consent decree - the court document that has directed all involved parties since it was drawn up in 1985.

EPA sees no point in talks

Unless there's some sort of breakthrough with CBS, government officials believe it's fruitless to continue negotiations, said Tom Alcamo, Environmental Protection Agency remedial project manager.

The EPA wants to proceed with its plan for cleanup and monitoring without engaging in further settlement talks with CBS.

"We have significant, significant differences with them on many things," Alcamo said. "We're going to keep moving forward, we're not in any delay mode."

In fact, this week the EPA is expected to release its plan for long-term environmental protection and monitoring for one of the PCB sites, the old Lemon Lane dump on Bloomington's west side.

CBS is the latest successor to Westinghouse Electric Corp., which used PCBs - or polychlorinated biphenyls - in making capacitors at its now closed plant in Bloomington.

PCBs were used as insulator fluid in Westinghouse capacitors. They were banned in the mid-1970s as a suspected health threat by the federal government, after many locations in the Bloomington area were contaminated.

CBS and government agencies were required to submit "status reports" by May 31 to update the court on their attempts to reach an agreement on the continuing cleanup efforts here.

The status report filed by the federal and state governments has an "anticipated litigation" section detailing the significant differences with CBS on how to handle remedial measures at PCB sites in the area.

It includes:

"The United States maintains that it should be entitled to recover response costs and natural resource damages incurred since February of 1994 - the month that the parties abandoned efforts to implement the original remedy and returned to the negotiating table to discuss a new alternative cleanup."

Mike Baker, of Citizens Opposed to PCB Ash, estimates cleanup costs so far to be around $25 million.

CBS submitted two settlement proposals last month, but wouldn't disclose the details.

CBS maintains that the consent decree protects it from being sued over implementing the cleanup.

"While CBS is fully prepared to defend its position that the covenant not to sue in the 1985 Consent Decree precludes all of the federal government's claims against it, both for money and for additional work, CBS continues to believe that it is in the best interests of all parties and the public to explore alternative means of resolving these disputes before resorting to litigation," states the CBS filing.

The city of Bloomington also doesn't want to see the parties give up on the consent decree.

"The city would be very concerned about any attempt by any party to vacate the portions of the consent decree that protect the city from final liability for the clean up," said lawyer Grodner.

The city owns Lemon Lane Landfill and could face legal liability without the protections provided by the consent degree.

Grodner said he anticipates that the court will be pushing hard for the parties to reach a resolution.

A status conference in court with the EPA and CBS is scheduled for June 28 at the request of CBS, successor to Westinghouse.

The EPA wants to proceed with its plan for cleanup without engaging in further settlement talks.

If agreement can't be reached, litigation could be on the horizon, as well as vacating the 1985 consent decree that has directed the cleanup so far.

See the latest PCB-related documents at http://copa.org.