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PCBs -- It's a Coverup, Not a Cleanupby Larime Wilson Not too long ago, citizens seeking solutions for decades-old PCB contamination in and around Bloomington wondered whether we would ever see enforcement of the 1985 consent decree agreement between Westinghouse (the polluter) and our governmental parties that holds Westinghouse responsible for the cleanup of six major PCB sites. Enter Magistrate Judge Kennard P. Foster, appointed by Judge S. Hugh Dillin last November "to see that the aims of the consent decree . . . are carried out expeditiously" and we have an answer to that question. We will not! Yes, though the last five months have been consumed with rapid-fire negotiating, conferring and decisionmaking under the supervision of Foster, we are no closer to getting a real cleanup for the sites. Movement on the consent decree, however small to date, has only been accomplished amid a downward spiral of the standard of protection to human health and ecology that Westinghouse will be required to attain. Judge Dillin's order to clean the remaining sites by the year 2000 and to do them simultaneously has set this downward spiral into a high-speed tailspin. With the second-phase "cleanup" of Winston Thomas Wastewater Treatment Plant (WTTP) on Bloomington's south side on the verge of becoming reality, the parties' attention has turned to finalizing cleanup plans for the remaining four sites. The insufficiency of the WTTP cleanup provides an ominous backdrop for what is planned to follow. Consent decree mandates (removal of the drying beds and removal of a 2-foot underlying buffer zone) were ignored in last year's Phase 1 Winston Thomas cleanup as well as risk-based cleanup goals in the range of 1-15 parts per million (ppm) determined independently by the four government parties. Instead, and against public concerns, a 50 ppm cleanup standard was set and several areas were excluded from cleanup, including a drying bed berm which later proved to be contaminated at 1200 ppm! Phase II Winston Thomas cleanup is set to launch with a 15 ppm cleanup target that has been eroded by averaging and compositing (techniques that combine samples) to at best a 25 ppm cleanup. Though public concerns remain regarding this level of cleanup and the risk of exposure remaining, they will not see the light of day because, under the supervision of Magistrate Judge Foster, the parties have adopted a new procedure for ramming through their plans. Remember back to 1985 when the consent decree was signed against public opposition (more than 10,000 citizens petitioned against it)? We were told that the overriding beauty of the consent decree (its ugliness being incineration) was that it was a binding agreement, thereby holding Westinghouse responsible to explicit standards and giving us "local control." Well, not so, folks! Phase I Winston Thomas cleanup required a public process to legally amend the consent decree. This process required public comment and hearing, but ended with public concerns being ignored anyway. The new process, effective for Phase II Winston Thomas, will be stipulated agreement by the parties and order by the court. What this means is that after the parties get done with their private capitulating to Westinghouse's terms they will simply all agree to the new terms in the form of a legal document, a stipulated agreement, and present it to the court to be so ordered. And, voila! They don't have to deal with the public or the consent decree anymore. The city of Bloomington has warned us to expect this process from here on out. Decisions for the remaining sites are already in the works and will be quick in coming. Specifically, Lemon Lane Dump looms. Lemon Lane Dump, on the city's westside was the city-owned dumping ground for massive amounts of PCB-contaminated material from 1958 to 1964. Contamination extends beyond the fenced boundaries with 3500 ppm in a family's yard next door. Groundwater escapes in every compass direction. The streets and areas near the dump were highly contaminated by salvagers taking capacitors from the dump offsite to drain their PCB fluids and salvage recyclables from within the capacitors. Trucks hauling materials to the dump spilled PCBs along the roads. Fires were lit on a daily basis at the dump raising the concern of dioxin and furans, extremely toxic compounds created by burning PCBs. Neighbors down the road report that the fires put out a black cloud of smoke, enough to make them close all their windows and doors even in midsummer, and left layers of black soot on their homes. The dump still abuts a residential neighborhood, Lemon Lane and Gray Street, though this area has seen a decline in population due to deaths and attrition. Understandably, then, this site has been a major focus for activists concerned with eliminating PCB contamination. Citizens have long called for a water treatment plant at Illinois Central Spring, one known point of output from the dump's underground water contamination, as well as complete removal of all source contamination at the dump to prevent its further leaking through the underlying unstable and changing karst geology. Estimates of Lemon Lane Dump's PCB contaminated material range from at least 176,000 cubic yards (as stated in the consent decree removal requirements) to the one million cubic yards once speculated by a Westinghouse attorney at a citizens' information meeting. Yet, the parties' planned "cleanup" for Lemon Lane Dump involves an excavation of a mere 38,000 cubic yards, less than a quarter of the consent decree's minimimum requirement. In recent years, one of the most visible and keenly watched negotiations centered over the sampling data at Lemon Lane. Citizens asked for complete characterization and sampling of the 11-plus acre site, including testing for other contaminants of concern commonly associated with PCBs, dioxins and municipal waste streams. What we got in 1996, by party agreement, was 32 sample borings for PCBs with only four dioxin samples. The sampling plan, designed of course by Westinghouse, and merely tweaked by the parties, tested in some of the places most unlikely to find the contaminants. Three of the sampling locations were moved during negotiation from areas of known PCB dumping activity to other areas, including the southwest corner where PCBs historically were not dumped and where previous testing showed there were no PCBs. Electromagnetic (metal-detecting) data was used to determine some sample locations, though much of the PCB dumping did not occur as metal capacitors. (Documents indicate greater than 20 tons a month of contaminated PCB oil-soaked sawdust, rags and other non-metal materials were hauled from the Westinghouse plant. Also, the dump contains a number of other metal wastes--from appliances to car parts.) Dioxins, despite having surface deposition patterns from burning PCBs, were sampled at depths of 30 feet, a location where the EPA official in charge admitted they did not expect to find them. With the results of this mad sampling plan in tow (well, even before the results, actually) the parties designed the so-called "hotspot" cleanup plan pictured in Exhibit 1. This "hit or miss" approach certainly found some hot material (up to 200,000 ppm) but whether they can truly be called spots based on the meager sampling done is questionable at best. Historical use evidence and prior testing contradicts this. Comparing the "hotspot" removal plan (Exhibit 1) to the site's PCB dumping activity map (Exhibit 2, from interpretation of photographic evidence) shows that massive areas of PCB materials will remain untouched. Though this planned cleanup has a so-called "site target" of 50 ppm, there are five known locations from the '96 sampling that tested higher (58, 64, 84, 103 and 340 ppm) that are outside the targeted cleanup. Verification testing is planned outside the "hotspot" removals only in the section east of the 5300 line (Exhibit 1) and only at 50' by 50' grids outward until a clean sample is reached. Noncontiguous contaminated areas are therefore unlikely to be reached. No further verification testing is planned outside the "hotspot" removals in the section west of the 5300 line, which includes much of the original 1958 dumping area. Compare this reckless plan to the mandate of the consent decree which requires the entire dump to be excavated to its 1958 level of dumping activity, then a three foot buffer zone be excavated beneath the entire dump and, only after all that, confirmatory testing to verify 50 ppm cleanup. The consent decree (this binding legal document) contains another clear mandate: if a remedy other than the originally-chosen incineration is adopted, the level of PCB removal and destruction must remain the same or greater than that already mandated in the consent decree. (Consent decree, p. 90.) Why then are we getting something worse? During all these years of footdragging and nonenforcement of the consent decree, Westinghouse has been hard at work. It is Westinghouse and their contractors who did the hydrogeological studies, the sampling plans, the risk assessments, the scope of work plans, the cleanup plans. They have more staff, equipment and money and log more hours than all of the governmental departments involved combined. In 1989, Congress's Office of Technology Assessment (OTA) reported studying Superfund sites and finding that communities suffer when polluters do the cleanup studies. OTA suggested that Congress consider restricting the role of the polluters to implementation of remedies and paying for remedies. The polluters have a clear conflict of interest in deciding what should be done at sites that they must pay to clean up. And where are our city leaders? Mayor John Fernandez, campaigning for his 1995 election, hoped to be the last Bloomington mayor to deal with PCBs. On the issue of Lemon Lane, he surprised radio listeners by advocating the needed relocation of residents in a trailer court near the Illinois Central Spring. Yet, within six months of taking office, he stood before the city council and asked them to approve the location of low-income housing, mental health housing and housing for HIV victims directly next to the trailer court and across a railroad track from the spring property. Fernandez is properly credited for being a more approachable and thoughtful executive in PCB matters than his predecessor. In early meetings with Clean Land, Air and Water and with his own Mayors' PCB Advisory Committee and in conversation with Bloomington Voice's PCB reporter as recently as two months ago, Fernandez stated that he would insist on the consent decree cleanup levels for Lemon Lane Landfill, to the extent of appealing any judge's ruling if necessary. He has the legal tool, the consent decree's removal and destruction level mandate, to do this. However, in yet another cave-in to Westinghouse, the city has signed off to the above outlined cleanup plan! It is slated for stipulated agreement and court order without public comment in the very near future. Is this decision etched in stone? No! It is etched only in the still, small voice of the concerned community, which has been led along by false promises from the mayor as well as media reports which have characterized any movement in the "cleanup" as progress with a capital "P." From our governmental officials, we have seen that rats can whimper. But can mice roar? Even with the weight of evidence and legal arguments on our side, can we fight a giant corporation? Communities win when citizens take the lead! Examples abound. Last year, Sugar Law Center secured a landmark ruling where a court ordered the State of Michigan to evaluate the cumulative burden on a community prior to approving permits for new pollution sources. Also last summer, Sierra Club won a major legal victory striking down a year-old federal EPA ruling allowing importation of PCBs for incineration. After a 12-year fight, a tenants group in Saraland, Alabama, won relocation of their homes built atop a chemical trucking terminal. And with the help of nationally organized citizen groups, residents near Florida's Mt. Dioxin also won relocation. All in the face of well-armed and well-funded corporate industry polluters. One thing is clear. We cannot win if we don't fight. We will not be handed anything we don't ask for. If the governmental parties are unwilling to take a stand in the stipulated agreements to come, no judge will intervene on our behalf, no matter how kindly disposed toward our cause. We must insist that our governmental officials ensure our right to a safe and ecologically sound environment. And if they do not, we must take the lead ourselves! (Larime Wilson is a member of Clean Land, Air and Water and the Mayor's PCB Advisory Committee. For more information, call 333-9705, or e-mail claw@bloomington.in.us. Also see COPA's redesigned website at www.copa.org.) In a December 1997 court entry denying Coalition Opposed to PCB Ash (COPA) President Mike Baker's request to attend consent decree party conferences with Magistrate Judge Kennard Foster, Foster stated that "if non-parties believe that the public interest is not being adequately represented or considered, they can express their opinions and views to the parties and to the Court." To do that, their addresses are given below. Mayor John Fernandez Utilities Service Board Monroe County Commissioners Resa Ramsey (regarding Winston Thomas) Thomas Alcamo, Mailcode SR-6J Hon. Kennard P. Foster |
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