1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION UNITED STATES OF AMERICA, ) Civil Action Plaintiff, ) IP 83-9-C ) 9:35 a.m. THE STATE OF INDIANA and ) Indianapolis, Indiana THE ENVIRONMENTAL MANAGEMENT ) November 13, 1995 BOARD OF THE STATE OF ) INDIANA, ) Intervening Plaintiffs ) WESTINGHOUSE ELECTRIC ) CORPORATION, ) Defendant and Third- ) Party Plaintiff, ) v. ) MONSANTO COMPANY, ) and Third-Party Defendant,) and ) THE CITY OF BLOOMINGTON, ) Civil Action INDIANA, THE UTILITIES ) No. IP 81-448-C SERVICE BOARD OF ) BLOOMINGTON, INDIANA ) and MONROE COUNTY, INDIANA ) Plaintiffs, ) v. ) WESTINGHOUSE ELECTRIC ) CORPORATION and ) MONSANTO COMPANY, ) Defendants. ) BEFORE THE HONORABLE S. HUGH DILLIN Official Reporter's Transcript of STATUS CONFERENCE APPEARANCES FOR THE PLAINTIFF: Steven D. Ellis, Trial Attorney Environmental Enforcement Section Environmental and Natural Resources Div. United States Department of Justice P.O. Box 7611 Ben Franklin Station Washington, D.C. 20044 -and- FOR THE U.S.: WEIL, GOTSHAL & MANGES BY: DAVID R. BERZ 1615 L Street, N.W. 2 Washington, D.C. 20036 -and- BAKER & DANIELS By: Joseph B. Carney 300 North Meridian Street Suite 2700 Indianapolis, IN 46204 -and- Stephen T. Wardzinski Assistant General Counsel Westinghouse Corporation 11 Stanwix Street Pittsburgh, Pennsylvania 15222-1384 FOR CITY OF MALLOR CLENDENING GRODNER & BOHRER BLOOMINGTON: By: Geoffrey M. Grodner 511 Woodscrest Drive P.O. Box 220 Bloomington, IN 47404 FOR STATE Myra Spicker, DAG OF INDIANA: 19 State House Indianapolis, IN 46204 COURT REPORTER: Martha L. Rodebeck 201 U.S. Courthouse Indianapolis, IN 46204 MACHINE SHORTHAND/COMPUTER TRANSCRIPT 3 I N D E X Miscellaneous Events: page Report of U.S. By Mr. Ellis 4 Report of Westinghouse By Mr. Berz 23 Report of City of Bloomington By Mr. Grodner 25 Answering remarks By Mr. Ellis 31 4 1 (CALL TO ORDER OF THE COURT) 2 THE COURT: Well, good morning, all. 3 IN CHORUS: Good morning, your Honor. 4 THE COURT: So this is a fact finding enterprise to try 5 to find out where we are and where we are going from here. 6 Who wants to go first? 7 MR. ELLIS: Your Honor, I am Steven Ellis, for the 8 United States. 9 THE COURT: Okay. 10 MR. ELLIS: And I have been informally designated by 11 the parties to speak on everybody's behalf. 12 THE COURT: Speak away. 13 MR. ELLIS: Okay. 14 Your Honor, we entered into an agreement which led to the 15 status report that's the subject of your order calling us here 16 today as a result of the parties' realization that the 17 incinerator remedy at the time was not going anywhere and it 18 would be better for the parties to take a step back and 19 determine what type of alternatives might be available instead 20 of considering incineration 21 The parties agreed that to find an alternative remedy to 22 incineration would require good engineering, good science and to 23 have the ability to adequately address site risks. 24 The parties also decided that it was extremely important to 25 bring the affected community of Bloomington along through the 5 1 entire process, informing them and listening to them so that if 2 an alternative remedy is able to be chosen it will be one that 3 is acceptable to the Bloomington community. 4 THE COURT: Yes, well, I have read your status report 5 which you are now quoting. You don't need to quote the status 6 report. 7 What are we doing? 8 MR. ELLIS: Well, your Honor, we have been taking 9 assessments and investigations of the site at this point in 10 time. We have also completed a clean-up of two non-consent 11 decree sites that are much smaller in scale than the five 12 remaining sites that have yet to be cleaned up. 13 THE COURT: Which two have you cleaned up? 14 MR. ELLIS: One is the former Westinghouse plant site 15 presently owned by ABB Corporation. That's where the capacitors 16 were originally. 17 The second site is the Fell Iron site, which is formerly a 18 junk yard that is in downtown Bloomington. 19 The Fell site is in the process of being cleaned up right 20 now. The ABB site is completed. 21 On both of those sites the contaminated soil had previously 22 been excavated and had been stored in weather-proof form. Those 23 materials at ABB site have now been transported to a disposal 24 site in Utah. The material at the south site is presently being 25 transported there. And we expect that that will be completed in 6 1 December. 2 THE COURT: Okay, go ahead. 3 MR. ELLIS: As far as the remaining site, what we are 4 doing is we are starting with the largest, most complicated site 5 first: the Lemon Lane Landfill. And once we have started base 6 on that, we were to begin the second site which will be the 7 Winston-Thomas plant, and we have already begun the progress on 8 that site. 9 We are doing these sites one at a time, but we are 10 overlapping them so as soon as we get to a stage where we can 11 start on the third site, which will be Neal's Landfill, we will 12 begin with that. 13 Our process started with the evaluation of existing data on 14 all of the sites. That has been completed. 15 Based upon the existing data, we determined--we are in the 16 process of determining for each of the sites what additional 17 data we needed. 18 Now, one thing that we are pretty certain we are going to 19 need for all of the sites is groundwater monitoring. 20 Groundwater is the trickiest aspect to determine the nature of 21 each of the sites, because if contaminants are migrating to 22 other places it is going to primarily do that through the 23 groundwater and surface water. 24 The process of groundwater monitoring, to do it right is, by 25 nature, lengthy. 7 1 What we are planning to do is a one-year groundwater 2 monitoring for each of the sites. We are close to being half 3 through with that now for Lemon Lane. We have done the first 4 quarter sampling and I understand we are either in progress or 5 about to begin the second quarter sampling of Lemon Lane. 6 In addition to actual regular quarterly monitoring, we are 7 watching for storm events, and when there is a storm we do storm 8 water monitoring to see, at various levels of bad weather, what 9 happens to the contaminants and how do they move. 10 We have already done a spring event and a fall event for 11 storm water monitoring. We have more to go. That, of course, 12 depends on when the weather will provide us a storm to be able 13 to continue that. 14 In addition to the groundwater monitoring, we are also going 15 to be doing actual surface and soil investigation. 16 We have begun on Lemon Lane by doing a geophysical survey. 17 One of the parts of that, for example, we are trying to 18 determine -- and I do not understand the science of this, your 19 Honor, I apologize -- but through some sort of complicated metal 20 detector determine where concentrations of metal may be inside 21 this large city-owned landfill. 22 What we have determined from that are possibly where the 23 concentrations of the actual capacitors are. And that will lead 24 us to know where the so-called hot spots of the contaminant PCBs 25 are. 8 1 From that we intend to do some sample boring, and I 2 understand a conceptual plan has been prepared and the parties 3 are in the process of trying to turn that into a full-fledged 4 soil and site sampling plan. We hope to be doing the soil and 5 site sampling within the longer context of doing the groundwater 6 sampling. And once we get the information from the groundwater 7 sampling and the surface water sampling and the soil sampling, 8 we'll be in the position to be able to evaluate that information 9 in the form of a human health risk assessment and ecological 10 risk assessment. When that is completed the parties will have 11 enough information to be able to determine whether there is an 12 alternative remedy that can be done to adequately protect the 13 site. 14 Now, we are not waiting until each of these processes are 15 completed to begin the next process. As we get more data, we'll 16 be thinking about what types of remedies will be appropriate to 17 the site. 18 THE COURT: Yes. What are the possibilities? 19 What types of remedies are available? 20 MR. ELLIS: Well, your Honor-- 21 THE COURT: Basically, you either burn it or haul it 22 off, don't you? One of the two? What else is there? 23 MR. ELLIS: There may be ways, for example, to contain 24 the areas where there are not large concentrations of PCBs. 25 Where there are large concentrations, you may want to excavate 9 1 it and haul it off. The may be other remedies that the parties 2 might want to determine as well. 3 THE COURT: Like what? 4 MR. ELLIS: Possibly burning them into the ground. 5 That's a possibility. It is called vitrification. 6 We are at the point where we are not presupposing any 7 remedy. We are trying to determine right now what the nature of 8 the sites are to be able to go into the next step. 9 THE COURT: Well, this consent decree was signed ten 10 years ago, plus a couple of months. Can you tell me why you 11 haven't been able to figure this out in ten years? 12 MR. ELLIS: Well, your Honor, I can only speak for the 13 last couple years from personal experience. 14 It's a long time. It really is. And the parties have been 15 proceeding in the first seven or eight years towards the 16 incineration remedy. 17 It has gotten to the point where Westinghouse actually 18 prepared the application for the incinerator and were ready to 19 go. It had come to the joint realization of all of the parties 20 that continuation with the incinerator remedy would take a very, 21 very long time, because of barriers placed in the printing 22 process, and because of the realization of the parties that the 23 incineration remedy itself had become unacceptable to the 24 Bloomington public. And the parties felt that they really 25 wanted to get these sites done and cleaned up. And they felt 10 1 jointly that going through with this process, although it is 2 long, may actually take less time and be more acceptable to the 3 affected public than proceeding with the incineration remedy. 4 THE COURT: Don't you have a large amount of dirt piled 5 up down there someplace? 6 MR. ELLIS: We have a large amount of dirt piled up in 7 something called the interim storage facility, your Honor, yes. 8 THE COURT: How large is that? 9 MR. ELLIS: Your Honor, I would have to ask my 10 technical person behind me if he could provide that information. 11 UNIDENTIFIED: I think it is about 13,000 cubic feet, 12 nine thousand tons. 13 MR. ELLIS: Nine thousand tons, your Honor. 14 THE COURT: And why is it sitting there? 15 MR. ELLIS: It is sitting there because the parties 16 have not come to an agreement as to where that material will go. 17 That's another thing that we can focus on, your Honor. 18 THE COURT: Well, if it is not going to be burned, I 19 suppose it will be going somewhere, won't it? 20 MR. ELLIS: I agree with you, your Honor. 21 THE COURT: Well, why can't we take it somewhere while 22 we are doing all of this other stuff? 23 MR. ELLIS: Your Honor, I think that is something we are 24 proposing to the parties and maybe the parties need to think 25 about that and see what can be done about that. 11 1 THE COURT: We have an awful lot of empty stripper pits 2 in Indiana. Much closer than Utah, I might point out. Been 3 holding water for 50, 60 or 70 years. They ought to hold dirt. 4 MR. ELLIS: Well, it is a suggestion that I would have 5 to bring up with my technical people to see if those pits can be 6 adequate storage facilities. 7 THE COURT: Well, they have slate on the bottom. That 8 is relatively impermeable, I understand. 9 MR. ELLIS: Your Honor, speaking for the United States 10 alone at this point, your Honor awakened us up to the fact that 11 we should have been in touch with you a lot more often than we 12 have. And one of the things that I do want to propose to you 13 today is to give you, at a minimum, quarterly status reports 14 telling us where we are and to be able to call upon you for 15 assistance to the extent that we feel that we have problems or 16 areas where your guidance may be of assistance to us. We would 17 like to involve you a lot more and we apologize for not keeping 18 you as informed as we should. 19 THE COURT: Well, tell me this: on your evaluation 20 that you mentioned awhile ago, surface and soil and so forth, 21 you mentioned an order in which you were going to accomplish 22 this evaluation: Lemon Lane first, and Winston-Thomas second, 23 and Neal Landfill third. I believe that is what you said. 24 MR. ELLIS: Yes, your Honor. 25 THE COURT: Is there any reason why you can't do them 12 1 all at the same time? 2 MR. ELLIS: Well, I imagine we can try. We have 3 actually increased -- at the federal level, we have increased 4 the amount of people that we have devoted to this to be able to 5 do two sites at the same time and we are going to try to start 6 the third site as well. 7 This is a very high priority for us and we can endeavor to 8 do as many as we can at the same time. 9 THE COURT: Just what does this entail? Let's just 10 take one site. What do you do? I know you go out and take some 11 borings and soil samples and what not. What else do you do? 12 MR. ELLIS: Well, before we do that your Honor, it's 13 not just a matter of going out there and taking boring samples. 14 It is a matter of determining how the sites need to be 15 investigated. And every site has to be looked upon in a 16 different fashion. So it is a matter of developing groundwater 17 and surface water sampling plans. And then while in the process 18 of that, the parties have to agree to the particular plans that 19 are being done. 20 THE COURT: Well, is it giving you any trouble? 21 MR. ELLIS: Well, your Honor, every party has its own 22 idea as to what has to be done. And what we have been doing-- 23 and frankly, I am a little pacified, the way this has been going 24 on. One of the things the parties decided to do is to keep the 25 lawyers out of this as much as they can. 13 1 They are having meetings weekly or two weeks, whenever 2 necessary, of the technical people where they are talking to 3 each other and trying to get the job done. Each party having 4 its own concerns in trying to deal with a technical question. 5 When there is a dispute that can't be resolved at this 6 technical level, other people are consulted, phone calls are 7 made, often at that stage lawyers might be involved. 8 And then every three months -- and this shows the 9 committment of the parties to the continuation of this 10 process -- the decision making principals meet often in 11 Indianapolis, often in Chicago, to go through everything that is 12 an outstanding issue to determine what has been done and what 13 needs to be done over the next quarter. The people who attend 14 these meetings include the mayor of Bloomington, the 15 commissioner or the assistant commissioner of the Indiana 16 Department of Environmental Management, the deputy regional 17 administrator of the Environmental Protection Agency, and a 18 senior vice president of Westinghouse, who is in charge of all 19 of their environmental concerns and legal matters. 20 These meetings are being conducted at a very high level. So 21 that if disputes -- and they have come about -- happen and are 22 not able to be resolved at any other level, these meetings are 23 the opportunity to get all of these things resolved. 24 So we determine what needs to be investigated and how, and 25 then we draw up a sampling plan, we draw up a health and safety 14 1 plan to protect the workers, to determine the level of 2 protection the workers need to have as they survey what is going 3 on at the site, and a soil sampling plan. 4 Once these plans are completed-- 5 THE COURT: You mean they are not completed yet? 6 MR. ELLIS: Pardon me? 7 THE COURT: You mean they are not completed yet? 8 MR. ELLIS: The groundwater plan has been completed and 9 is being implemented in Lemon Lane. 10 The soil and site monitoring plan has been done on a 11 conceptual level and the details are being filled in now. 12 The other site, my understanding is Winston-Thomas -- excuse 13 me just a second, your Honor. -- the site information has been 14 gathered and reviewed. The parties are currently gathering and 15 evaluating what else they need to know about that site. And 16 they have made a preliminary determination of what their 17 additional data needs are and they are presently preparing the 18 groundwater investigation plans. 19 THE COURT: Just for instance, what do they need to 20 know that they don't know? 21 MR. ELLIS: On the Winston-Thomas site? 22 THE COURT: Well, any of them. Yeah, Winston-Thomas. 23 MR. ELLIS: Well, in general, your Honor, what they 24 need to know is where is the groundwater going, and where is the 25 contamination--if at all, where is the contamination being 15 1 carried by the groundwater. 2 For example, back in Lemon Lane, we know that groundwater is 3 carrying contaminants up to several surface water areas. One is 4 the spring in property owned by the Illinois Central Railroad. 5 Another one is, I think it is called the Indiana Prairie Spring, 6 is that what it is called? 7 UNIDENTIFIED: Poy (phonetic) Springs. 8 MR. ELLIS: Poy Springs? 9 It is coming up in several springs. And the parties believe 10 that that is the normal site where the groundwater is carrying 11 the contaminants and are doing the monitoring to determine that. 12 They have done dye studies and things such as that. 13 But they have also seen, for example, that in some storm 14 events -- the bedrock in this area is fractured limestone -- and 15 in storm events they have seen that there is a possibility that 16 contaminants might be carried to other places. Apparently in 17 storms contaminants have been found in residential areas. 18 We are trying to determine, for example, on all of the sites 19 whether there is any contamination in any residential realm. It 20 is my understanding that none has been found so far, but still a 21 lot more investigation needs to be taken. Especially when we 22 are dealing with residential drinking water. 23 So that is an example of-- 24 THE COURT: Okay, so we are waiting for a storm then, 25 right? 16 1 (Laughter). 2 MR. ELLIS: Well, in Lemon Lane we complete the second 3 quarter sampling and then we have got spring and summer 4 sampling. And during that period of time we expect to be able 5 to monitor several other storms. And we'll get to a stage by 6 next summer where we'll know if we have enough storm water 7 monitoring and know enough about what happens to the site in 8 good weather as well as bad. 9 And then from that stage, we'll have the information we need 10 to determine what we need to do: do we need to take all of the 11 soil out of the site, or do we need to take just some of the 12 soil out of the site, and where can the sites be contained, 13 where are the contaminants low enough enough to just contain the 14 sites so that nothing ever moves out of them; where are the 15 areas that everything needs to come out of it at all. Those are 16 some of the things. 17 At Winston-Thomas, for example, we suspect that there might 18 be a lot of contamination in a large treatment facility known as 19 a tertiary lagoon; it is a big pond, basically. 20 We also know that the digesters, the sludge that might be 21 contaminated with PCB that was stored for a long time; that 22 those digesters are in very bad shape and are going to -- 23 something is going to need to be done with the sludge that is 24 there and with the digesters themselves. 25 We know that there are problem spots with regard to each of 17 1 the sites, but what we want to do is find out as best we can 2 what has to be done with these problem areas and where the other 3 problem areas are that we might not presently be aware of. 4 In addition to that, when we originally decided on the 5 incineration remedy, which, of course, your Honor, was before my 6 time, the parties had the complete remedy here: All of the soil 7 is going to be taken out and all of the contaminants were going 8 to be completely destroyed by fire. Now that we are looking for 9 alternatives to that remedy, we also need to find out what other 10 contaminants may exist at these sites and what other 11 contaminants may need to be treated or dealt with accordingly. 12 So there is a lot of further information that we need to 13 understand. 14 We are trying to do it on the basis of good sience and good 15 engineering, and, unfortunately, it takes time and costs a lot 16 of money. But we are doing it as quickly as we can. 17 THE COURT: Well, since you were going to take all of the 18 soil out in the first place and incinerate it, why don't you 19 just take all of the soil out now and skip all of this mumbo 20 jumbo? Take it out and get rid of it. 21 MR. ELLIS: Because, your Honor, we are talking about 22 tremendous amounts of money, possibly even nine figures; 23 hundreds of millions of dollars, to do something like that. 24 THE COURT: Well, if you were going to do it once, why 25 not twice? 18 1 MR. ELLIS: Well, your Honor, if we are going to look 2 for alternative remedies, one of the things that we wanted to do 3 is to look at remedies for their cost effectiveness. 4 If we can give the community equal protection and not have 5 to pay as much money, it is worth taking the time to do the 6 investigations to make sure you can do that. 7 I think, your Honor, also, that if we take out all of the 8 soil, we have to transport them maybe across the country or 9 elsewhere, it would come up to substantially higher amounts of 10 money than what Westinghouse had originally agreed to. 11 THE COURT: How many cubic yards of dirt are we talking 12 about? 13 MR. ELLIS: 640,000 cubic yards, your Honor. 14 And to paint the picture of that, if you could imagine a 15 large football stadium as a bowl and you can fill the whole 16 thing up with dirt as high as it can mound, that's about the 17 amount of soil we are talking about. It is a lot of soil. 18 And under the incineration remedy, the parties had 19 anticipated, I think -- and correct me if I am wrong, Mr. 20 Berz -- but it would have been something like 15 to 20 years of 21 trucks moving 24 hours a day to excavate that; is that correct? 22 MR. BERZ: I think that is close. 23 MR. ELLIS: We are talking about a lot of soil and even 24 under the incineration remedy, we are talking about decades 25 possibly to complete it. 19 1 So, your Honor, you know, if Westinghouse, you know, wasn't 2 concerned, for example, about the amounts of money it would cost 3 to do this, I am sure that the United States would be in favor 4 of, you know, allowing Westinghouse to excavate all of the soil. 5 But the parties all agree that there shouldn't be a waste of the 6 kind of money and the kind of time we are talking about if more 7 cost effective solutions that provide the same level of 8 protection are possible. 9 THE COURT: Well, I am sure the Court is not in favor 10 of bankrupting Westinghouse. But then I haven't really heard a 11 lot of anything that tells me very much. 12 I am from a part of the country where we move an awful lot 13 of dirt and an awful lot of coal. It called strip mining. And 14 compared to what I am familiar with, this isn't really very 15 much. 16 MR. ELLIS: I can appreciate that, your Honor. 17 THE COURT: Okay, anything further? 18 MR. ELLIS: Your Honor, what we propose to do is to 19 provide you the quarterly status reports that we have already 20 mentioned to you. We feel that if we do this process in an 21 overlapping scale in the manner that we are hoping to do, given 22 the fact that we have this planning phase that is necessary and 23 the minimum one year period in which the groundwater sampling is 24 necessary, we expect that the sampling part of all of this might 25 be completed on the first site, Lemon Lane, by the summer or 20 1 fall of next year. And then we would be in the process of 2 trying to determine and evaluate what the appropriate remedy 3 would be. And we would be trying to stagger each of the other 4 sites to maybe have everything done in terms of site 5 investigation possibly by sometime late in 1997, and then have 6 the evaluation possibly come as quickly as the parties can 7 properly evaluate and agree to an alternative remedy from that 8 point on. 9 We have not decided yet whether it is better to come to you 10 with a proposed alternative remedy, if we are able to find one, 11 for each of the sites individually or one amendment when all of 12 the sites are gone. 13 It seems to me, your Honor, that there may be some value in 14 coming to you as soon as we are able to agree on a remedy for 15 each particular site. 16 THE COURT: Yes, why not? At least the people in the 17 community would get the idea that something is happening. I 18 don't think they have that feeling right now. 19 MR. ELLIS: Your Honor, I live in Washington and I am 20 far from that community. I understand that the parties are 21 briefing members of the community quite frequently. In fact, we 22 have prepared joint newsletters that we would tender to the 23 Court for its convenience, explaining to the community about the 24 site, what has been done and what has to be done. 25 We have also produced a joint video and distributed 550 21 1 copies of that to the community. All of these are in public 2 depositories in the City of Bloomington. 3 In addition to that, we are meeting with members of the 4 community in small groups as well as in large group public 5 meeting types of sessions so that they have a meaningful part in 6 how this remedy is developed. We are talking to them and we are 7 listening to them. 8 They want this done and, frankly, from the United States' 9 perspective, your Honor, we want this done as quickly as 10 possible too. And frankly, we are helping to entertain-- 11 THE COURT: Yes, after all, you are the original 12 plaintiffs in this case. 13 MR. ELLIS: Pardon me? 14 THE COURT: I say after all the United States was the 15 original party in this case. 16 MR. ELLIS: We are, and the City is too. 17 THE COURT: And the City, of course. 18 MR. ELLIS: We do want this done as quickly as we can, 19 your Honor. 20 And one of the things that we have to keep understanding 21 from the United States' perspective is that this is different 22 than most remedies under the Superfund law, because in most 23 cases we just choose a remedy and then require that remedy. 24 Here, because we are already under a consent decree 25 situation, unless we are prepared to go back into litigation, 22 1 which we don't see as constructive at all, all of the parties 2 have to agree to the remedy that might be proposed. And because 3 of that it takes a little bit longer and all of the parties 4 basically have to be looking at and speaking from the same 5 script. 6 We have had our share of arguments, but, your Honor, I am 7 amazed that we have gotten the kind of progression from the 8 parties that we have thus far. And we are hoping that it will 9 continue that way. 10 THE COURT: Well, the only suggestion I could make is 11 that you do these evaluations simultaneously instead of one at a 12 time. 13 MR. ELLIS: Well, I will definitely bring that back to 14 our decision makers, your Honor. 15 THE COURT: Of course, I think you had better send 16 somebody down to Pike County or Warrick County or Daviess County 17 or Clay County or Vigo County or Sullivan County and check out 18 some of those strip pits. They'll hold 640,000 cubic feet very 19 easily. 20 MR. ELLIS: I will make sure that our technical people 21 look into those as well, your Honor. 22 One other thing that I might mention to you is as far as the 23 federal government is concerned -- and I am sure there is still 24 concern on the part of the state government -- we are heavily 25 restrained by our own budget. In fact, right now it is only 23 1 with a great deal of effort that the United States EPA is being 2 able to continue to pay for contractors' support to be able to 3 do the groundwater monitoring effort. 4 I am not sure what is going to happen after tonight, your 5 Honor. I am going to go back to Washington and I don't know 6 whether I am going to be able to be in the office tomorrow given 7 the potential government shutdown. 8 But the point I want to raise to you on this is that we are 9 going to do our very best. We have allocated as much in-staff 10 work assistance to getting the job done as we can, and we will 11 work at devoting more people in-house to these efforts. 12 But to the extent that the United States has to pay for 13 outside contractor help to assist in these investigations, we 14 are substantially restrained given the budget funding for EPA 15 for the next year. We have to work the best we can with that and 16 maybe even see if we can get additional assistance from the 17 other parties. 18 THE COURT: All right, thank you. 19 Anybody else? 20 MR. BERZ: Good morning, your Honor. 21 David Berz, for Westinghouse. 22 I would just make the point, your Honor, that as recently as 23 a couple weeks ago the United States Environmental Protection 24 Agency issued a statement of policy with respect to 25 administrative reforms for the implementation of Superfund. And 24 1 the realty here is that our remedy that was selected, which was 2 incineration, got caught up in a change, a few changes, really, 3 in the evaluation of how Superfund clean-ups should be managed. 4 And that has a lot to do with why we are or where we are for 5 funds today, in that the remedy is not only unacceptable 6 in many respects to the community, but poses a lot of 7 issues for the regulatory agencies, particularly the State of 8 Indiana and the United States. 9 I would like to make the point that Mr. Ellis made, that I 10 do think we have set up a process here where we at least have 11 all the senior stakeholders who meet quarterly to break any of 12 these log jams that might come up in how these evaluations are 13 done, your Honor. And I think that that process is working. 14 We certainly understand the frustration, your frustration, 15 the other parties' frustration, quite frankly, our own. 16 We have a very large and dedicated staff to the Bloomington 17 project apart from consultants. 18 And I can tell you that on behalf of management, while I 19 certainly would admit we are not prepared to pay any price, this 20 is a project that everyone would like to have, as they say, off 21 their screen. But I do think the project people in particular 22 who are here today have worked very hard on some very difficult 23 issues; they continue to do that, and I would think that the 24 approach of coming back on a site-by-site basis to the Court, 25 either formally or through correspondence, would be a way 25 1 perhaps to satisfy the Court that in fact we are making 2 progress. 3 THE COURT: All right. Thank you. 4 MR. GRODNER: Good morning, Judge. Geoff Grodner, from 5 the City of Bloomington. I have Linda Runkle, corporation 6 counsel, with me. 7 First, the City of Bloomington would like to thank the 8 Environmental Protection Agency and Westinghouse for getting 9 something done and cleaning up the ABB site and being in the 10 process of cleaning up the Fell Iron and Metal site. 11 Unfortunately, none of those sites is within the consent 12 decree. And I have been asked by Mayor Allison to express the 13 concern of the City about the progress that we have been able to 14 make so far. And it is not because of any lack of effort I 15 think on all of the parties. I think the parties, as Mr. Berz 16 and Mr. Ellis has said, have been working fairly hard. 17 The problem is, your Honor, that under the schedule that 18 currently exists--and it is a very informal schedule--as Mr. 19 Ellis has said, sampling and analysis on the Lemon Lane Landfill 20 won't even be complete until 1997. 21 The EPA has problems with funding. We understand those 22 problems. At the same time the EPA, as do many federal 23 agencies, have extensive regulations which must be complied 24 with, and they can't even comply with their own regulations 25 because--or there is going to be the possibility they can't-- 26 1 because of the lack of funding. 2 Beyond all of that, it may take some months or years after 3 the sampling analysis is complete to agree upon design 4 alternative remedies for any of the sites. 5 We support a site-by-site consideration, as Mr. Berz has 6 just talked about and as the Court suggested. However, there is 7 no consensus at this time among the parties as to whether 8 remediation will begin at any site until the investigation has 9 been completed at all of the sites. 10 We hope the parties will be able to come to that kind of 11 consensus. 12 Our greatest concern though is that there is no defined 13 ending. There is no schedule in place that says we are going to 14 be done with our investigation, with our alternative remedies 15 selection at any specific point in time. 16 We are concerned in fact that we will not be able to agree 17 on such a schedule. There is a schedule that has begun to be 18 developed and the parties, in response to this notice from the 19 Court for this status conference, have committed among 20 themselves to return to work on that schedule. But we are 21 concerned that that schedule, if developed, would result in no 22 remediation possibly being performed at any of these sites in 23 this century. 24 We would remind the Court that there are property owners 25 that live adjacent to the sites, immediately adjacent to the 27 1 sites, and they have been there since 1984 when this consent 2 decree was announced. We are concerned that those people will 3 not have any relief from the contamination that they live 4 immediately next to for many years yet to come. 5 We believe, the City, that this process needs to be 6 streamlined. 7 We support what the Court has suggested, and that is 8 concurrent investigation of all of these sites. 9 We strongly support cleaning up the smaller sites, like 10 Winston-Thomas, on an expedited schedule. 11 Mr. Ellis talked about the Winston-Thomas site. 12 The City of Bloomington does not think the Winston-Thomas 13 site necessarily required the level of investigation of any of 14 the other sites or is as complicated to clean up. We believe 15 that the Winston-Thomas site could be cleaned up in a matter of 16 one or two years if the parties were encouraged to do so. 17 We understand that the Lemon Lane site and Neal's Landfill 18 site are very complicated sites and very large sites and they 19 present different problems. But there are smaller sites that 20 could be addressed today. 21 Certainly, the soils in the interim storage building could 22 be removed today. 23 We believe the Court can be of assistance to the parties. 24 We believe that the Court should give the parties a period 25 of time in which to return to the Court or provide the Court 28 1 with a schedule. If the parties can't develop the schedule, we 2 think the Court may be able to assist the parties in developing 3 a schedule. 4 We would ask the Court to monitor the progress of the 5 parties as this matter goes on, and ask, as Mr. Ellis has 6 suggested, that we provide you with a quarterly report that 7 tells the Court how we are doing in response to that schedule. 8 And finally, if the Court determines that we are unable to 9 move forward on an expedited basis in conformance with the 10 schedule, the Court may want to entertain other options it has 11 to oversee the progress of the consent decree implementation. 12 Thank you. 13 THE COURT: Do you have any suggestions about a 14 schedule? 15 MR. GRODNER: We have talked about it on the phone, and 16 in light of the fact that the schedule will involve all five 17 sites, and we have two major holidays coming up, we would 18 suggest that the Court allow a period of 60 or 90 days to return 19 with a schedule. 20 THE COURT: All right. Thank you. 21 Does anybody feel that you cannot arrive at a schedule in 90 22 days? 23 MR. ELLIS: Your Honor, I believe we can, the United 24 States. 25 THE COURT: How about you, Mr. Berz? 29 1 MR. BERZ: I don't think it is a problem, your Honor. 2 Schedules have been proposed before. Westinghouse has proposed 3 schedules before. We have determined what to do. 4 THE COURT: And they were able to agree on it? 5 MR. BERZ: Correct. 6 THE COURT: Well, okay, it will be a part of the 7 minutes of today's meeting that the parties are ordered to agree 8 upon a schedule and present it to the Court within 90 days. 9 If they can't agree, the majority may present a schedule. 10 Then if the majority can't agree, the Court will do so. This 11 will be somewhat less than 90 days. 12 MR. ELLIS: I am sorry, your Honor; if the majority 13 cannot agree, what? 14 THE COURT: You can agree. 15 (Laughter). 16 Well, I am sure Westinghouse has been in good faith in this 17 matter. On the other hand, I used to defend a few cases in my 18 life time and I know that the defendant is never really 19 out-of-pocket until the final event happens. In other words, 20 it's not costing Westinghouse anything not to do anything. So 21 we all know that this clean-up has to be done on the site. 22 We know that EPA's funds may be somewhat limited. And until 23 after the next election they may be even more limited. 24 But Westinghouse has a deep pocket. And I don't know why 25 Westinghouse can't advance the money to see that this 30 1 groundwater monitoring and so forth cannot go forward 2 simultaneously with respect to these sites. 3 Mr. Grodner mentioned that there are some sites that have 4 people living right next to them. I don't know whether they 5 have wells or what. Do you know, Mr. Grodner? Do they have 6 City water, have wells or what? 7 MR. GRODNER: Anyone that had a well that was 8 determined to be in proximity of the site to potentially affect 9 it has been put on City water under the consent decree. 10 THE COURT: Well, I would certainly assume that that 11 had been done. Nevertheless, I would think, just without 12 knowing anything else, that the groundwater monitoring ought to 13 take place at the sites that are adjacent to these residential 14 sites before anything else. 15 MR. BERZ: Just a couple of things: I think it is fair 16 to say first, that we have-- Westinghouse in particular has 17 spent literally millions of dollars on sampling and its absence 18 of the sites to date. 19 That is the first point I make to the Court. 20 And the second point I would make-- 21 THE COURT: Pardon me. In your opinion, have you done 22 sufficient sampling that you don't need to do anymore? 23 MR. BERZ: I think there is additional soil sampling 24 that needs to be done with respect to reevaluating the sites if 25 we are not going to have a total destruction, thermal 31 1 destruction remedy as was originally contemplated. And we have 2 worked with the parties to come up with that plan, and I believe 3 we will come up with it, your Honor. 4 But as it relates to groundwater, for example, there has been 5 extensive sampling at all of the sites. And in addition to 6 that, I would point out to the Court that we have a health 7 monitoring program out there that Westinghouse is responsible 8 for. We also have had federal agencies into the Bloomington 9 community who have concluded that as they stand there is no 10 serious threat to human health. We could argue about the 11 environment. 12 But I don't want to leave the record unclear on the issue of 13 human health. I believe right now that one of the agencies, in 14 particular the ASTER, the federal government, which evaluates 15 the effects of toxic substances, has been out there and issued 16 an extensive report. 17 In addition to that, there has been some effort by the State 18 of Indiana, under some recent legislation I think, where at 19 least the issues of health were looked at. So I don't want to 20 leave the courtroom with the sense that there are people who 21 have known risk as a function of a delay in coming up with a 22 rememdy for these for these sites. 23 THE COURT: All right. Thank you. 24 MR. ELLIS: Your Honor, if I may, I want to reaffirm or 25 confirm your observation that Westinghouse has been acting in 32 1 good faith. We do have disagreements often over the extent of 2 monitoring that would be required. 3 We have found things over the past year that we didn't know 4 had existed before, for example, the extensive contamination of 5 the springs. When we find during the course of our work that 6 there is any kind of danger that hasn't been known previously, 7 we take action to prevent any kind of immediate danger. 8 For example, the springs that we found the contamination 9 with, we also found that it is quite possible that that might be 10 an area where kids might be playing. So to avoid the 11 possibility of any kind of contact with the contamination, 12 Westinghouse has offset that and made it inaccessible. 13 There is another situation where Westinghouse has taken care 14 of residents and homeowners and such as that, and all of the 15 parties are on guard to watch out for any kind of danger. 16 Despite our presence have stablized for the short months, and 17 all of the parties are looking out for danger to make sure that 18 anything else is taken care of while this problem continues. 19 THE COURT: All right. Thank you. 20 Anyone else? All done? 21 Well, if so, thank you for coming in and for the report. 22 I will ask you to make quarterly reports. And let's not 23 fall behind simply on the basis of EPA doesn't have any money. 24 Because as I said awhile ago, I think Westinghouse probably has 25 that much. 33 1 And if there is nothing else, we'll be adjourned. 2 (WHEREUPON, court adjourned at 10:25 a.m.) 3 4 5 6 I certify that the foregoing is a correct transcript from the 7 record of proceedings in the above-entitled matter. 8 _____________________________ _______________ 9 Martha L. Rodebeck Date 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25