IN THE 
                   UNITED STATES DISTRICT COURT
                   SOUTHERN DISTRICT OF INDIANA
                      INDIANAPOLIS DIVISION

___________________________________
                                   )
THE CITY OF BLOOMINGTON, INDIANA,  )
THE UTILITIES SERVICE BOARD OF     )
  BLOOMINGTON, INDIANA, and        )
MONROE COUNTY, INDIANA,            )
               Plaintiffs,         )
                                   )
vs.                                )    (No. IP 81-448-C)
                                   )      (Consolidated)
WESTINGHOUSE ELECTRIC CORPORATION, )          (with)
               Defendant,          )
                                   )
UNITED STATES OF AMERICA,          )       No. IP 83-9-C
               Plaintiff,          )
                                   )
THE STATE OF INDIANA,              )
THE ENVIRONMENTAL MANAGEMENT BOARD )
  OF THE STATE OF INDIANA,         )
       Intervening Plaintiffs,     )
                                   )
vs.                                )
                                   )
WESTINGHOUSE ELECTRIC CORPORATION  )
               Defendant.          )
___________________________________)

   MOVANTS InPIRG's AND COPA's CONSOLIDATED REPLY TO MEMORANDA
          IN OPPOSITION TO MOVANTS' JOINT AMENDED MOTION
                     FOR RELIEF FROM JUDGMENT


                           INTRODUCTION

     This memorandum incorporates Movants COPA's and InPIRG's
replies to Westinghouse's, the State of Indiana's, Monroe
County's, and the City of Bloomington's (hereinafter the parties)
responses to Movant's Joint Amended Motion for Relief from
Judgment.  Movant's have previously filed their reply to the
United State's response.  It is important to note that on June
20, 1991 following the City of Bloomington's June 3, 1991
response in opposition to Movant's motion that the Bloomington
City Council passed a resolution which substantially supports
Movants' positions.  The City resolution specifically and
unequivocally urges Westinghouse and the government leaders at
all levels to abandon plans to use the incinerator and to abandon
plans for a hazardous waste landfill in Monroe County.  See
Exhibit 2.
     This same City Council resolution explicitly acknowledges
that most citizens of Bloomington and Monroe County oppose the
use of an incinerator in  Monroe County, that the proposed
incinerator is a technology that has never been used anywhere,
that Westinghouse has failed to demonstrate that the proposed
incinerator is effective or sufficiently safe to protect the
health and safety of the people of Bloomington and Monroe County,
incineration of solid waste as proposed under the decree is not
consistent with the community's needs for long term solid waste
management, and that the City only recently realized that the
incinerator ash will be hazardous requiring construction of a
hazardous waste landfill in Monroe County.  This same City
Council Resolution specifically requests and urges the
Environmental Protection Agency (EPA) to conduct the
Environmental Impact Statement (EIS) (or alternatively the
Remedial Investigation Feasibility Study or RI/FS) which Movants
here allege EPA failed to perform thereby violating federal law
and voiding the EPA decision process (and consequently voiding
the instant decree based upon that decision process).  The City
of Bloomington attorneys have yet to inform this Court of this
resolution and the substantial change in the City's position
regarding the instant decree that it represents.
     Further, the Monroe County Council and Commissioners have
also recently passed a similarly dramatic resolution
unequivocally stating that the County government opposes the
proposed incinerator and ash landfill and believes that this
opposition reflects the will of the community and the considered
opinion of numerous experts in the field.  See Exhibit 3.  This
County Resolution also explicitly states that no Remedial
Investigation/Feasibility Study (RI/FS) was performed as required
by law and that an RI/FS is needed to fully investigate and
determine the extent of PCB contamination and to carefully
consider the alternative methods of addressing that
contamination.  See Exhibit 3.  As in the City resolution, the
County acknowledges that the need to construct a hazardous waste
landfill in Monroe County to handle the incinerator ash is a new
and unanticipated major development and one which the government
opposes.  Id.  This important County resolution was passed on May
14, 1991 approximately two weeks prior to the filing by the
County of its response to Movant's motion for relief.  It is
important to note that the County has not opposed Movant's
motions for relief and for an evidentiary hearing.  The County
attorneys have yet to inform this Court of the County's
opposition to the remedy incorporated into this Consent Decree. 
     Neither has the State of Indiana remained silent in recent
days regarding the issue of the proposed experimental garbage
fueled PCB soil and sludge incinerator.  The Indiana General
Assembly recently passed two bills which require a study of
alternatives to PCB incineration and require that an incinerator
may not be permitted and constructed unless the county has
included incineration in its solid waste plan.  Monroe County
officials are already on record in the County resolution as
opposing the incinerator and the City resolution makes clear that
incineration is not part of the City solid waste plan.  Thus
these two new State Bills have by intent and effect the same
purpose as the recent City and County resolutions: to oppose use
of the proposed solid waste fueled PCB incinerator and to obtain
a study of alternative methods which might be used to clean up
the PCB contamination in Bloomington.  Exhibits ___ and ___. 
     Finally, the United States Environmental Protection agency
has conceded, via a public statement by the remedial project
manager for the Bloomington cleanup, that EPA would not select
solid waste as a fuel for an incinerator if EPA were to decide
today how to cleanup the Bloomington contamination.  Thus it is
clear that four of the five Consent Decree parties, all of the
government parties, have concluded that the proposed incineration
technology for the Bloomington cleanup, the centerpiece for the
instant Consent Decree, is the wrong technology for the job. 
Under these circumstances, how can it be equitable and in the
public interest to insist that this decree be implemented as
written.  The decree is no longer equitable to enforce and must
be modified.
     Only one of the parties, Westinghouse, which stands to
benefit through receipt of tens of millions of dollars from the
City and County tipping fees to be paid under the decree, has not
publicly rejected the decree's proposed incineration technology. 
Thus Westinghouse's statement that none of the parties have
raised similar concerns to those of Movants, see Westinghouse
Opp. Mem. at 19, is off the mark.  Further, the President of the
Monroe County Commissioners at the time of County approval of the
decree, Ms. Charlotte Zietlow, has raised several of the same
concerns about illegality, misrepresentation and improper public
process during the decree approval process.  See Exhibit 4. 
Commissioners' President Zietlow states that had the County
government known then, in 1985, 1) that EPA had cancelled the
planned RI/FSs on Lemon Lane and Bennetts, 2) that the EPA had
kept secret from the County the fact that EPA had signed the
Record of Decision selecting the incineration remedy prior to all
of the public meetings and comment process, and 3) that the
County was going to pay millions of dollars more in tipping fees
to Westinghouse under the decree than they could conceivably pay
for garbage disposal and cleanup of the County landfill
otherwise, that the County would not have approved the decree and
would not approve it today.  See Exhibit 4.
     Whether or not the parties ever decide to inform this Court
of these critical developments or not, the Court must act
decisively to protect the public interest in this matter.  The
Court should exercise its equitable powers to vacate this decree
so that the parties and Movants can get on with the efficient,
constructive and long overdue process of studying alternative
remedies, taking public comment, and selecting a cleanup method
that can truly be effective and safe, and that the community can
accept and support.  This process is nothing more than the EIS
and RI/FS process required by federal law since 1982.
     The recent actions of the City, County, State, and EPA
officials clearly support Movants' legal arguments under Fed. R.
Civ. Proc. 60(b).  As discussed in Movants' Motion and Memorandum
filed previously, such fundamental changes in circumstance
requires the Court to dissolve the Consent Decree pursuant to
Fed. R. Civ. P. 60(b)(5) and permit Movants to intervene in this
action and the new remedy selection process that must follow.    
The fundamental changes in circumstances surrounding the
decree including the recent announcements by the United States
Fish and Wildlife Service that the proposed incinerator poses a
threat to endangered species in the Monroe County area, that the
cleanup plan may otherwise be insufficient to protect valuable
natural resources, and that the plan may not adequately
compensate for harm to natural resources already incurred, as
well as the dramatic reversals of positions of most of the
parties to the decree regarding the need for an Environmental
Impact Statement and their newly announced opposition to the
proposed incinerator and ash landfill are sufficient grounds for
vacating this decree.  These grounds which were alleged by
Movants have been essentially ignored by the parties in their
responses. 


  I. Movants' Motion for Relief from Judgment Raises New Issues
   of Fraud on the Court, Fraud, Illegality, and Recent Changes
  in the Fundamental Circumstances Underlying the Consent Decree
  Which Issues Have Heretofore Been Undecided, Making Law of the
        Case and Related Preclusion Doctrines Inapplicable
              As a Bar to Movant's Motion for Relief

     Westinghouse and other parties claim, citing City of
Bloomington v. Westinghouse, 824 F.2d 531 (7th Cir. 1987), that
COPA's and InPIRG's Motion for Relief from Judgment is merely an
attempt to recast the issues that InPIRG presented to the
district court and the Court of Appeals in InPIRG's prior motion
to intervene and in InPIRG's comments on the Consent Decree.  See
Westinghouse Opp. Mem. at 5-8; City Opp. Mem. at 6; Indiana
Department of Environmental Management Response at 4.  This
argument of the parties can not prevail because the issues of
fraud, fraud on the court, and change in law and material
circumstances raised in Movants' original and amended motions
were not decided nor could they have been decided by the district
court when it entered the decree.  Neither do the later appellate
decisions in this case address these issues.  See City of
Bloomington v. Westinghouse, 824 F.2d 531 (7th Cir. 1987), and 
Schalk v. Reilly, 900 F.2d 1091 (7th Cir. 1990).
     Further, despite the parties' conclusory and erroneous
representation to the contrary, InPIRG did not raise these issues
of fraud and fraud on the court in its comments on the decree
because the fraud had yet to be discovered due to EPA's, and
other parties', concealment of material facts, key documents and
the record of decision itself, as well as due to the active
misrepresentation of the facts and law by the EPA and other
parties' representatives in Bloomington.  InPIRG also did not
raise these issues of change of law and material circumstances in
its comments on the decree for the simple reason that the events
which changed the law and circumstances did not occur until 1986,
1987, 1988, 1989, 1990, and 1991, while the decree was entered in
1985.  
     It is not surprising that the parties, other than
Westinghouse, in their respective responses, fail to specifically
list each of the issues raised by movants in the instant motion
and fail to cite specifically to the place in the district court
opinion or public comments where the specific issues were
discussed.  Under the circumstances this would be an impossible
task since the specific issues raised here were not discussed in
the prior decisions.  Westinghouse does attempt to demonstrate a
similarity in issues by way of an exhibit and while
Westinghouse's comparison is erroneous it is creative and
deserves special attention.  The Westinghouse argument and
exhibit is treated in detail below in Exhibit 1 which is attached
to this Memorandum.  Apart from the Westinghouse Exhibit, the
parties merely make conclusory statements to the effect that the
issues presented in Movant's instant motion were previously
raised.  In an attempt to support their specious preclusion
argument the parties cite to City of Bloomington v. Westinghouse,
824 F.2d 531 (7th Circuit 1987) alleging that many or all of the
issues raised by Movants here were the same as those raised in
InPIRG's comments on the decree.  However, the City of
Bloomington decision does not identify a single comment made by
InPIRG but simply acknowledges that some comments were made.  Id. 
The parties, to prevail on their preclusion argument, have the
burden of demonstrating that the specific issues raised here were
actually raised before by the same parties, fully and fairly
litigated and actually decided.  The parties have failed to show
any of these essential facts, nor could they.
     City of Bloomington v. Westinghouse, 824 F.2d 531 (7th Cir.
1987), and  Schalk v. Reilly, 900 F.2d 1091 (7th Cir. 1990) can
not act as a bar to Movants' motion for relief here.  The issues
raised here were not fully and fairly litigated nor decided in
the prior actions, and the legal standards were different.  In
the prior decisions relied on by the parties the decisions were
on procedural and timing issues rather than on fraud, fraud on
the court, change of circumstance and law making the decree no
longer equitable, and illegality making the decree void.  Denial
of a motion to intervene on procedural grounds does not resolve
any issues presented by the underlying claims and is not a
decision on the merits, therefore not barring later actions on
the merits by the denied intervenor because the determinative
issues are not the same.  Young v. Higbee Co., 324 U.S. 204, 208-09 
(1945)  Also See Wright & Miller, Federal Practice &
Procedure, Civil  4416.  As the Seventh Circuit Court of Appeals
acknowledges, the district court denied InPIRG's motion to
intervene as untimely.  City of Bloomington v. Westinghouse, 824
F.2d 531, 533 (7th Cir. 1987).  The court of appeals also
restricts its holding to the issue of timeliness.  Id. at 537.
     InPIRG never was granted party status to litigate even the
substantive issues known to it at the time, which did not include
the current issues of fraud, fraud on the court, and change in
law and circumstance.  Even much of the conclusive evidence on
EPA's illegal decision process -- including the facts that EPA
actually canceled work on RI/FS studies on Bloomington sites
which it claimed then and claims now it was not obligated to
perform, that the EPA record of decision was kept secret from the
court, local government and the public during the critical public
comment period and years after, and that EPA has performed the
RI/FS studies in dispute at every other Superfund National
Priorities List site in the country except Bloomington -- was
not available to be raised at the time the decree was entered and
InPIRG's intervention motion was decided 
     The Schalk case is not a related case and establishes no bar
to Movants motion for relief.  The parties ion Schalk are not the
same as here.  Neither COPA nor InPIRG were a party to the Schalk
case nor did they have any decision authority over the plaintiffs
there.  No such relationship between the parties in Schalk and
the parties here has been alleged.  There is none.  Thus even had
the issues here been decided in Schalk, the Movants would not be
precluded from raising and litigating these issues, being
different parties.  See Wright & Miller, Federal Practice &
Procedure, Civil  4416.