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Library: Hearings |
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United States District CourtSouthern District of Indiana
THE COURT: All right. This is the matter of the Westinghouse clean up at Bloomington. And you may proceed. MR. ELLIS: Thank you, Your Honor. My name is Steve Ellis. I'm with the Department of Justice for the United States and with me is Jeff Cahn from the United States Environmental Protection Agency and Dan Hopkins from EPA as well. From the state is Barbara Crawford with the Attorney General's office and Thomas Cobb from the Indiana Department of Environmental Management. From Monroe County is William Steger. And from the City of Bloomington is Geoffrey Grodner and Linda Runkle. Also for Westinghouse Corporation is David Berz, Joe Carney, Steve Warzinski and Dottie Alke. Your Honor, we appreciate the opportunity to update you on the clean ups of the consent decree sites. I would like to provide you with a brief update to supplement the status report you received yesterday, then to allow the City to provide you with a brief explanation with slides of the clean up at Winston Thomas and then all of the parties are here to answer any questions that you may have. The process of reaching agreement on the clean up of the consent Decree sites have been very difficulty both from a technical standpoint and the point where all the parties can find common ground. We are at the point now where we are in the middle of the clean up of the first part of Winston-Thomas. And we are working very hard to put together an agreement for the clean up of the remainder of Winston Thomas so that the whole clean up can take place during the year 1998, which is ahead of the schedule that we submitted to you in January of this year. We anticipate that Lemon Lane -- agreement for the clean up of Lemon Lane will take place next year at an early enough stage in order to be able to accommodate substantial amounts of the clean up of that site during the Year 1999 The schedule that we submitted to you yesterday is extremely ambition and it's dependent upon first the parties reaching quick agreement on the technical documents and new consent decree documents. Second, fast work both on a technical standpoint and a legal standpoint by all of the parties. And third depends on how our work -- how our proposed work will be perceived by the community in which we will learn during the public commenting process. We have learned much during the last two years of the investigation of the Winston Thomas and the Lemon Lane sites. We have at Winston Thomas learned pretty much where the contamination is. There is additional work that we are doing, particularly in the area of goundwater monitoring. We're going to have to do some more work to determine exactly what's going to be done there. As far as Lemon Lane is concerned, the most significant thing we have learned is that there is contamination of the groundwater from Lemon Lane going to an area known as Illinois Central Springs. We have learned that during storm events the concentrations of PCBs coming from that area flowing towards Clear Creek is especially heavy. And as far as United States EPA is concerned it's going to be our first priority among all of the components at Lemon Lane. The third matter that I want to bring to your attention is that we appreciate Westinghouse's clarification that upon the major steps it's taking in its corporate reorganization, the CBS entity, which Westinghouse will be changing it's name to apparently on December first, will remain fully responsible for all aspects of the consent decree. We have learned just this morning, at least from the information I have received thus far, that the Bloomington project will actually remain with the CBS entity. Westinghouse is going to sell its power generation unit to a European country Seamens (phonetic). But instead of splitting up into two separate companies, Westinghouse will remain one and it will be known after December as CBS. We're appreciative of the information and commitments we have receive) from Westinghouse. If you have any questions for me at this point, Your Honor, I would be happy to answer, otherwise I'll bring to you John Langley. THE COURT: Well, I just have a comment. The comment is that there's no need to thank Westinghouse for whatever they told you because as far as I'm concerned everything that was Westinghouse back at the time of the consent decree continues to be responsible for the clean up period. Go ahead. MR. ELLIS: Thank you, Your Honor. Mr. Langley is the project engineer on behalf of the city and he would like to provide you with an update on the current clean up at Winston Thomas. THE COURT: Okay. Oh, is this the slide show? MR. LANGLEY: Yes, sir. THE COURT: Yeah, okay, go ahead. Try one, let's see how it shows up. We'll have to dim the lights, I believe, a little bit. Yeah. MR. LANGLEY: Just to give you an orientation here, Your Honor, this is a map of the City of Bloomington and the football stadium is located up in the northern part of the city. Winston Thomas is a decommissioned waste water treatment plant on the south side of the city, has about 26 acres. _ This is an area which you have a map of in front of you known as the west side of the Clear Creek area. And it was done outside the consent decree on an agreed order this summer. It was a removal order by EPA and agreed to. This shows excavation of, the beginning of excavation of PCB soils in that area. As you see, they did have to go down to bedrock on a large part of the site and that white, the white material up there is bedrock. This shows after the filling and reseeding has been completed and it's also about the only rainy day we had on this particular removal this summer. Quite fortunate with the weather. This slide shows the decontamination of the truck tires that's taking place as trucks leave the site. And also there's a scale, portable scale, which each axle is weighed so that we know exactly how much weight is leaving the site. This is a before shot before the clean up of the sludge drying beds. This is back under the consent decree portions of the site and the sludge drying beds are located here on the drawing that you have. Sludge drying beds are the end point of the sewage treatment process where sludge is taken to dry out before it's returned to the landfills. This shows just another before shot. And this is at the end of the removal of the nonTSCA material or the material that is less than 50 parts per million. And this is one of the TSCA portions over here, which we have another slide of later. The drying beds had sludge on the top. Under that was a layer of sand, and under that either one or two layers of varying size gravel to enhance drainage. At least 5 samples and I think more like 7 or 8 samples were collected from each drying bed. Here you see, I believe this is the city of Bloomington sample. We did bias our samples toward where we believe material would remain if it was there at all and we came up with either no PCB's left or very, very minute concentrations left. This slide shows the backfilling of the drying bed areas and the beginning of the TSCA removal. And the TSCA material again is PCB, contains PCB's greater than 50 parts per million. This shows the excavation of the sand layer. These are the digester units. And they are the next to the last process in the sewage treatment process. In order to access these units these tanks are 25 feet above ground, 25 feet below ground and the diameter is 40 to 50 feet. They're two different sizes on the site. In order to get clear access to those units the walls had to be cut and this was done with the radial saw. They also installed shrouds over the digesters to keep water out. And we're adding lime and other agents to help dry the material so it can be trucked legally, they aid us in dust control. Another picture of the shroud. This is part of the dewatering process used initially. Getting the water off of the sludge has been a little bit difficult, has proven a little more difficult than anticipated. So that process is ongoing. It's expected to be completed by the end of the year. This is a site that we call the east side of the entrance road and it was a sink hole which had been filled with sludge. Westinghouse and the government, between the parties did a cooperative sampling effort about two years ago and we located material in this area. Westinghouse did a voluntary clean up on this particular area. This is another shot of the east side. And that concludes the slides. Thank you. THE COURT: Thank you. MR. ELLIS: Your Honor, if you have any questions or any of the other parties want to make any statements, we're free to answer any questions or be here for your needs, whatever they may be. THE COURT: When do you think Winston-Thomas will finally be concluded? MR. ELLIS: Your Honor, we anticipate that the full site clean up of Winston Thomas will occur either in 1998 or early 1999. The only issue is the amount of work that can be accomplished on the largest component, which is the tertiary lagoon. The final step in the whole process will be ground water monitoring and any clean up that needs to be made if adverse information is found in the groundwater monitoring. MR. BERZ: David Berz, Your Honor. Mr. Ellis is correct, the issue as to whether we can finish in 1998 at Winston Thomas as we're committed to do is whether or not we run out of the construction season that allows us to finish the tertiary lagoons. THE COURT: What do you have to do there? MR. BERZ: Essentially we have to remove material. And we have to ship it off. THE COURT: Well? MR. BERZ: So if we run into extremely bad weather where things are too wet where the trucks can't move, that's a problem. THE COURT: How many pieces of machinery do you have scooping up this dirt? MR. BERZ: Let me let Dottie Alke, who's project manager for Westinghouse, address that question as best she can. MS. ALKE: This is a 17-acre lagoon. And we have to drain that material, drain the water off of there and then address the sludge underneath. And it's not so much the equipment that you would put in the lagoon, itself, but rather there will be filter pressing equipment that would be put in the interim storage facility. And we believe we can fit three filter presses in there. And we would have to process all this material through there in order to haul -- THE COURT: What's this filter press? MS. ALKE: It actually squeezes the material and removes water from it. Because of it being wet material, being underwater for all this period of time, we have to find a way to remove the water in order to ship it to a landfill. The landfill will not accept material unless it's certain -- can only have certain water volumes in it in order for it to be acceptable. It's just part of the operation. THE COURT: So you have three filter presses, is that what you're telling me? MS. ALKE: That's what our plan is right now. THE COURT: What if you had six? MS. ALKE: The problem is that we want, we hope to run a 24-hour operation. And we're going to have to put it in a building in the interim storage facility where materials are right now, there's only room in there for three. THE COURT: Instead of a building, why don't you put it in a truck? MS. ALKE: It's just the way the equipment has to be staged and set up and operated. THE COURT: Well, you're talking about the filter press, correct? MS. ALKE: (Nodded affirmatively.) THE COURT: But after the filter press presses, why do you have to put the material in a building? MS. ALKE: No, we wouldn't put the material in the building. We would actually put the equipment in the building that will be pressing this material. And then we would take the material that comes out of that operation and load it onto a truck and dispose of it immediately. THE COURT: Well, that's what I thought you should be doing. That wasn't what I understood you to say. MR. BERZ: Your Honor, just as a footnote to that, you may recall when we did the interim measures early on after the '85 consent decree was approved, we created something called the interim storage facility, which was used to gather the materials along stream beds and sentiments that were removed immediately or shortly thereafter or within a year or so of the consent decree. And that's our staging operation now is the dewatering process. THE COURT: Well, in other words, the interim storage facility is not storing anything, it's dewatering sludge from the lagoon, is that what you're saying? MR. BERZ: There is still some material that will have to be removed that's been in the interim storage facility to make it available for the dewatering operation. THE COURT: You can do that next week, right? MR. BERZ: Well, in theory I suppose we could take material out of the interim storage facility. THE COURT: If you need it out, I guess you should be taking it out. MR. BERZ: We will need to take it out and we have set up a schedule so that -- there's no delay implicit in the project as a result of the materials that are in the interim storage facility. We want to get the material out of there but we do want to sequence it so that we're staging things and we avoid unnecessary mobilization and remobilization costs. And that's been the plan for quite sometime. MR. ELLIS: Your Honor, there's two preconditionings that still need to be achieved in order for Westinghouse to start moving those soils and trash out of the interim storage facility. First, anything that we do that's inconsistent with the current consent decree would need to be submitted to you in the form of a new consent decree and receive your approval. And the interim storage facility clean up will be part of what we intend to lodge with this court in early January. The second thing is that the parties need to come to agreement on the method in which Westinghouse is going to separate the materials that can be delivered to an ordinary sanitary landfill as compared to a special hazardous waste landfill. And the parties are in the process of working out exactly what will be done in order to achieve that. THE COURT: Where is your nearest sanitary landfill? MR. ELLIS: Mr. Hopkins, do you know? MR. HOPKINS: The one currently being used is Southeide Landfill in Marion County. THE COURT: I can't hear you. MR. HOPKINS: I'm sorry, Your Honor. The landfill currently being used for material that's not regulated under Toxic Substances Control Act is being sent to the Southeide Landfill in Marion County, Indiana. THE COURT: Okay. How about the other one? MR. ELLIS: That's where in Michigan, Mr. Hopkins? MR. HOPKINS: Bellville. MR. ELLIS: Bellville, Michigan, Your Honor. There's for the hazardous material. THE COURT: So you're talking to the railroad and sending it up there in railroad cars, is that right? MR. ELLIS: Your Honor, that material is being transported to the hazardous waste landfill in specially lined trucks. THE COURT: Well, in reading through a lot of this I saw some reference to the railroad. You don't use the railroad? MR. ELLIS: Not to my knowledge, Your Honor. MR. BERZ: I believe that when we were working on the Fell Iron = facility, because of the nature of that material and its location, we were able to take advantage of rail. But I believe for Winston Thomas everything will be removed and it will be trucked to these two sites. MR. GRODNER: Your Honor, if I may, Jeff Grodner for the city. First, the city initiated the initial request that was submitted to the Court for hearing in this matter and we appreciate the Court after a couple of requests for continuance seeing us today. The reason we requested the hearing was a dispute that the city was concerned would result in delays in completing the Winston Thomas remediation. We're pleased that that dispute has been resolved and we'd like the Court to be aware that the city is fully committed to continue to push this process forward so that we can get not only substantial completion but total completion of Winston Thomas remediation in 1998 and substantial remediation of Lemon Lane Landfill in 1999. As I think the Court knows, those are the only two sites the city owns that are involved in the consent decree. Your Honor, our experience the last 60 days with the prospect of coming to visit the Court and maybe having to resolve a dispute before the Court, we think has been a valuable one. The prospect, although I certainly enjoy coming here, the prospect of coming to court has caused all the parties to re-evaluate their positions on issues and alleged resolution of issues that were very difficult. We think that it would be helpful, the city thinks it would be helpful if we came back, given the aggressive schedule we have ahead of us, and reported to the court on maybe a semi annual basis, twice a year, as we move through the next couple of years with the remediation at Winston Thomas and Lemon Lane Landfill. And if the Court will indulge us, we would appreciate being invited back on that schedule. Finally, I want to thank the Justice Department and the Environmental Protection Agency for taking steps to compress their standard approval processes that they have committed to do as we move forward on the Winston Thomas project. They are going to take and combine some approval processes that would otherwise extend the time it would take to get final approval to permit the clean up to move forward beyond a time when Westinghouse would feel comfortable starting remediation and being able to get it done next year. So we appreciate the EPA and Justice Department agreeing to compress those processes. And as we move forward, we would ask the Court and all the parties to keep in mind the need for all the parties to address approval processes and the various technical and legal issues that we're going to be facing in such a way that we ensure that the approval processes, bureaucracies, regulations and input from the principals and citizens are done in such a way that they do not delay implementation on the schedule that we have submitted. Thank you. THE COURT: Once upon a time you made a motion for the appointment of a master. Do you still suggest that would be a good idea? Having in mind one of our magistrates. MR. GRODNER: Yes, Your Honor. We have been using a facilitator that has been retained by the parties named Nancy Newkirk. She is an attorney, environmental attorney, from Washington, D.C. To date we have been able to resolve the disputes that led to our request for the appointment of a special master. We would ask that motion stay on file and if at such time we believe that we do in fact need the master, we would ask the Court to move on that motion. But at this time I don't know that it would expedite anything at this time. THE COURT: Well, you don't know what the Court has in mind. For today we'll say he's a stand-by master, and that's Magistrate Judge Foster. If any of you had any experience with Magistrate Judge Foster you know that he is very good at expediting things. MR. Berz Your Honor, just a comment. Mr. Grodner's suggestion coming to court periodically on behalf of Westinghouse, which we think that probably is a good idea, I think we have found in the last few months that what we sometimes think are disputes may not necessarily be disputes but are really more in the nature of making sure all of the parties are committing the resources, personnel and sending people with the authority to meetings on technical issues to make decisions. In that regard we have met with the principals, which includes the acting regional administrator of EPA, senior officers from ID EM, Justice Department, Westinghouse and the County. And as reflected in the paper we filed, essentially if you will recommit and perhaps upgraded the nature of our meetings, who's going to participate in those meetings. So that all the stake holders are at the table when we have to reach decisions and we have less deferral of issues while people have to go up the chain and report back at a later date and we hope that will expedite this process. THE COURT: Well, I went through this file in the last few days and I quite frankly am not at all happy with the continuing lengthening of the time for the accomplishment of the total clean up. At one time it was all going to be done by 1999, and that's quite a ways off. Then it got up to 2000. Now it's up to 2002. And I'm saying to you that that is not acceptable, period. I think each and every one of these things should be cleaned up not later than the end of 1999. My gosh, that's two years from now. If you can't -- and of course what has happened is that for some reason you have all agreed, and I have gone along with it and I'm as much at fault as you perhaps for having gone along with it, you have agreed to string these things out and, for instance, right now you're going to finish Winston Thomas. And after you do that, you're going to do Lemon Lane. After that you're going to do Neal's Landfill and so forth. There's no reason to string that out like that. Most of this stuff can be done simultaneously, beyond any doubt whatsoever. Now, back at the very beginning of this Westinghouse was going to build a furnace and all this material was going to be brought in and incinerated. Of course that idea has been gone for a long time. But what about Neal's Landfill and Neal's Dump and Bennett Dump? They're just places where people threw trash and garbage and so forth, aren't they? Is there anything unusual about them? I mean I haven't been out to see these things. long time ago. But I have seen a lot of dumps in my lifetime. They all look about the same. I presume that you were going to scoop up all this stuff in these-dumps, put them in trucks, bring them into the furnace and burn them; wasn't that the idea? Perhaps I should have gone. Anybody have any different idea? And if not, why couldn't they be picked up now and taken to one of these landfills and disposed of? I mean somebody tell me why that couldn't be done. I have looked at -- let me see here. Looking at the schedule for May of this year starts out with Winston Thomas, it was going to be completed in the middle of 1998. Will it be completed in the middle of 1998? MR. ELLIS: Your Honor, that schedule, that last entry is that the actual work will be begun in August of 1998. What we - THE COURT: The actual work? MR. ELLIS: -- the actual digging up of the soil is scheduled to begin in that January schedule in August - of 1998. We want to begin that in April of 1998 and finish all that can possibly be done during 1998. THE COURT: Well, okay. And you have got Lemon Lane. All these start out with data collection. Tell me what data collection is. MR. ELLIS: Your Honor, it would be the easiest thing to simply take out all of the material that are in each of the sites. Westinghouse believes that the remedial work can be done in a matter that's fully protective by identifying the areas at each site where the highest concentrations of PCB's are. THE COURT: Okay, who does that? How do you do that? MR. ELLIS: Each party has a project manager. And they determine the areas that need to be tested. THE COURT: Okay, how do they do that? MR. ELLIS: Mr. Hopkins, could you briefly describe how that process is done? MR. HOPKINS: Okay. Basically, Your Honor, we would examine all the information that already exists -- aerial photographs, previous testing, that kind of thing -- to try to isolate in -- and most of these are landfills -- where in the landfill we believe that this material resides. And then focus our attention on those areas. THE COURT: Well, how do you focus your attention? MR. HOPKINS: For instance, we would be -- for the Lemon Lane Landfill a number of borings would be put into the landfill to try to find specifically whether or not the PCB contamination existed ubiquitously throughout the landfill or whether it was in pockets or hot spots. THE COURT: So what do you do, drill a hole? MR. HOPKINS: Drill a hole and take samples and perform the testing, Your Honor. THE COURT: Now I come from down in the oil country and we drill oil wells year round down there. Is there any reason why you can't go out and drill your holes in Lemon Lane this afternoon, for example? MR. HOPKINS: Lemon Lane may not have been the best example because we have done that in Lemon Lane. THE COURT: Well, you have already done that. MR. HOPKINS: Right. THE COURT: Okay. Why do we wait for two years to drill holes to take samples? Can you tell me that, please? MR. HOPKINS: Quite honestly, Your Honor, we spent a lot of time arguing about whether or not there was even a need to do it. THE COURT: Well, maybe there isn't a need, in which case you're ready to start moving the stuff out tomorrow, right? MR. HOPKINS: Just be more material we have to move, that's right. THE COURT: Well, there was a dispute as to whether or not you needed to drill it at all, right? And why was that? Because somebody said move it all and somebody else said no, we only have to move half of it or what? What was the dispute about? MR. ELLIS: Your Honor, that particular dispute took place at the end of 1996. The city wanted more samples taken than Westinghouse wanted to have taken at that point in time. The dispute was resolved by the United States coming in and agreeing to take those additional samples itself rather than to have Westinghouse take them. THE COURT: Well, okay. Have all the samples been taken then? MR.ELLIS: Have all of those samples been taken, Mr. Hopkins? MR. HOPKINS: I would say we have at this point a good idea of where in the landfill that the PCBs are most concentrated. If we wanted to get more fine-tuned about it there could be additional sampling. But we have probably isolated it down to a quarter of the landfill. MR. ELLIS: Your Honor, if I may, on Lemon Lane we have learned in the past couple of years that the most serious problem is actually not in the landfill, itself, but in some springs known as the Illinois Central Springs that are downstream, down gradient in groundwater terms from the landfill, itself. We have learned that PCB contaminated groundwater appears at these Illinois Central Springs and go from there to contaminate Clear Creek. We discovered that the worst of these problems exist during the large storms where it's possible -- we don't have confirmation on this, but it's possible that in one very large storm-there could be as many as, as many PCBs released into Clear Creek as on 4,000 normal days. And it's our first priority at Lemon Lane. And this is something that the sampling that we have done over the last two years has been able to tell us that we would not have known under the original consent decree process. THE COURT: Well, all that means is that you better get out there and clean it up. MR. ELLIS: That's right, Your Honor. MR. GRODNER: Your Honor, if I may, we agree with Mr. Ellis and the United States that the springs are a very serious problem and needs to be addressed because this is contamination that is leaving the landfill and going into what are more residential areas. However, the contamination at the landfill the city believes is also a very serious problem and should not be denigrated. THE COURT: Well, isn't the landfill responsible for the - MR. GRODNER: Yes, sir. We believe that the more material you remove from the landfill, the faster you will resolve the contamination of the spring. And that is why we asked for more sampling last year because we were concerned that not enough had been identified, had been done to identify the full extent of the contamination. Obviously the city is in favor of removing as much material as is reasonably possible. THE COURT: Has that sampling been completed as far as you're concerned? I mean you. MR. GRODNER: Yes, as far as -- I was checking with my project manager but, yes. As far as we know the sampling has been completed. THE COURT: Well, Mr. Project Manager, is there any reason why removal of the junk from Lemon Lane couldn't start immediately? As soon as the weather permits let's say? MR. LANGLEY: Well, not understanding the legal -- THE COURT: Forget the legal. I'm talking about the practical. MR. LANGLEY: No, sir, there isn't. THE COURT: I have heard too much legal already. MR. LANGLEY: It's just about money, Your Honor. THE COURT: It's what? MR. LANGLEY: It's about money. THE COURT: Well, okay. Whose money? MR. BERZ: Your Honor, we have been down this road before about - THE COURT: Not with me. MR. BERZ: It's not about the money. Money is a consideration. The issue here is coming up with a plan that would be processed according to the Superfund law meeting the requirements of the state so the work can get done. There is an issue about how many resources there are and how this process goes forward. There was a certain genius, if you will, to the original consent Decree, Your Honor, as you outlined it. We had an incinerator planned and clean up was literally based on the volume of if you recall the volume and tons of material that were going to be put into that incinerator. With the demise of the incinerator, what we are now governed by are rules, federal, state, to some extent local, that require that we come forward with an analysis of the areas to be remediated, a plan that's proposed to the public, approval of that plan and then implementation. We think most of the sampling of Lemon Lane is done and have for quite sometime. There was a dispute about that sometime ago. It went on for a long time, as you heard it was ultimately resolved. But the issue is not simply about money. The issue is about the resources and the availability of people to sit down, bang their heads together and resolve these problems. That's what this issue is really all about, Your Honor. And from our end, as I'm sure from the other parties, we are prepared, have been prepared to put the people that we have working on this project full time. I mean there's a part of Westinghouse, soon to be CBS, that is devoted exclusively to the Bloomington project. THE COURT: How many people is that? MR. BERZ: A minimum of 8 and up to 11. That's just in-house people. And then of course we have three or four contractors. THE COURT: What do these 8 to 11 people do? I'm sure they don't drive trucks or anything like. MR. BERZ: That work is done by contractors. They do the negotiating with the governmental parties. They do the contracting with the contractors who actually do the work. The work is essentially outsourced. THE COURT: What are they doing today? MR. BERZ: Well, two of them are here. Two of them are in other places looking at technology that we hope, approaches to cleaning up Winston Thomas, refined approaches, we hope to implement. And I don't want to put our project manager on the spot but she probably has a better sense of where the rest of her team is today and she can tell us about that. MS. ALKE: There's, as he said, 11 people work on this full time. We have of course a field office here in Bloomington responsible for implementation of the work as decisions are made. And those people right now are very much involved in implementation of the work at the Winston Thomas site you just saw pictures of earlier of coming along quite well. So they're overseeing that work right now. There's one person full time on this and another person part time. Another part time -- another part of that other person's time is spent on understanding continuing to investigate and sample Illinois Central Springs as we discussed earlier. We also have additionally three project engineers that work full time on developing all the plans and working with our numerous experts we have on this project to detail all the work that has to be done and also to detail everything that has to be done in order to comply with the various state and federal and other regulations that we have to do. THE COURT: It seems to me like we have too many regulators that we have to talk to all the time. Can't EPA do this period or can't the state do it? Why do we have to run through all these hurdles all the time? MR. ELLIS: Well, Your Honor -- THE COURT: I mean, and aren't the hurdles well known? I mean do we have to bring them up new every time we talk or what? I don't understand this whatsoever. MR. ELLIS: As we get through this project more we're finding ways to get through the regulatory barriers quickly. THE COURT: What are the regulatory barriers? MR. ELLIS: Your Honor, I may have used the wrong term as barriers because the regulations were done for a reason and for the purposes of this case the primary reason that it takes the time to do what we're doing in terms of the actual approval process is to make sure that once there is a plan that is proposed by the United States and agreed to by the other parties that plan has to go out for a period of public comment. We have to have the opportunity to respond to the public comment and explain to Your Honor -- THE COURT: How many plans do you have out for public comment right now? MR. ELLIS: Currently zero, Your Honor. THE COURT: That's what I thought, zero. MR. ELLIS: But, Your Honor, if I may, the regulatory process does take time but I think in this particular instance part of the reason it's taken the time it does is because we have not done the easy thing, which is simply require Westinghouse to pick up all of the soils from all of the sites. We have taken the time to give Westinghouse the opportunity to say this type of soil here and these soils here shouldn't go because they're safe and we can leave them intact. And that's - THE COURT: Okay, that's very kind of you. Now then how about Neal's Landfill, Neal's Dump and Bennett's Quarry, have you done your drilling out there yet? MR. ELLIS: No, Your Honor, we have not. THE COURT: Why not? MR. ELLIS: Because the United States has focused all of its attention right now to - THE COURT: Is there any reason in the world why you can't go out and drill some holes in the ground and bring the samples in? Is there any reason? MR. ELLIS: No, Your Honor. From the federal government's standpoint it's a matter of resources. THE COURT: Well, we're back to resources. Resources means people. It's Westinghouse's job to clean this up. They can hire the people, that's no problem. They're a five-billion-dollar company or something like that. It's true they haven't had a very prosperous year the last few years, but I suppose a lot of that right off is depreciation and whatnot. Any reason why these holes can't be drilled in the wintertime as well as the summertime? Is there as far as you know? MR. ELLIS: I would have to ask my project manager that, Your Honor. Mr. Hopkins? MR. HOPKINS: I would say with the exclusion of having frozen ground that most of the time I think samples could be taken except under really adverse conditions or may not be safe. THE COURT: Well, this is Indiana, it's not Minnesota. We have lots of nice winter days in Indiana. MR. HOPKINS: That's true. MR. GRODNER: Your Honor, if I may. The issue of the regulatory processes is one that I addressed briefly in my opening remarks and that is that we are and continue to be concerned that as we move through the process that there are a lot of federal regulations, state regulations, the city sort of operates under a much simpler set of rules, but those processes are something that as we move through and especially with Lemon Lane we're going to be asking the federal government and the state to look very hard at how they can compress those processes because they do take months and months and months. And that's not the fault of Mr. Ellis or Mr. Cahn or Mr. Hopkins over there, that is the federal rules that they read and believe and are told by the superiors have to be applied. So it is an issue. It is very definitely an issue and we're going to ask to stay on top - THE COURT: Just enlighten me, what are two or three of your toughest rules that are holding up this process? MR. ELLIS: Well, Your Honor, again I don't look at that as holding up the process but - THE COURT: Well, I'd say slowing down the process. MR. ELLIS: The most important rules that we need to focus on from the United States' standpoint is the opportunity for citizen input. And those deal with the public comment periods that are required by law. THE COURT: Well, that doesn't happen until you get your plan made. MR. ELLIS: That's absolutely correct, Your Honor. THE COURT: So that isn't a problem whatsoever. The problem is getting the plan made. And getting the plan made in turn depends on drilling holes in the ground and getting some samples and having them analyzed. That's the way you go about this. You can have one -- you could have one public comment thing on the whole schmear if you had it all put together with drilling your holes and so forth at the same time instead of once a year, a year at a time for each landfill. Yes, you're about to say something? MR. BERZ: Your Honor, a certain amount of, one of the issues we face with this is, and I mean all of us, that I wish we could say to you: Yes, the weather doesn't matter, we can drill the holes. And in fact meteorlogically otherwise that's probably true. The fact of the matter is before we put holes in the ground we have to submit a plan to the state for groundwater intrusion. That plan has to be reviewed and approved by the state. And we have a cooperative project here and I know EPA likes to take a look at that as well. What I'm trying to say is when you asked what the regulatory barriers or issues are, they really do start at the beginning because we simply are not able to go out there, do our own sampling, give those results to someone and say here it is, this is what we want to do. We have to get approval for every step in the process. THE COURT: Approval to do your own sampling? MR. BERZ: Yes. We are not allowed to intrude into groundwater of the State of Indiana unless we have approval. THE COURT: Is the State of Indiana here today? MR. COBB: Your Honor, we are. THE COURT: Why can't they go out and drill holes in the ground? MR. COBB: Your Honor, David is correct, there has been an approval process in the past. It has been slow. Mr. Hamilton has said in recent weeks when he became aware of that that's not going to be the case anymore. And to the degree the state has been a problem with that approval process we no longer are. THE COURT: That's good news. Did everybody hear that? MR. COBB: I'm sure they did, Judge. THE COURT: Okay. MR. ELLIS: Your Honor, if I may add one other thing about why Westinghouse cannot just go out and do its own sampling is that it's the viewpoint of the United States that we want to make sure that the sampling Westinghouse would do is representative, that they would not go out into the areas where they expect to have the least amount of contamination or the fewest amount of problems and do all of their sampling there. THE COURT: Well, send somebody out with them. MR. ELLIS: And we have a series of regulations known as the National Contingency Plan that are in the regulations that provide the types of plans that must be provided, the types of investigations we must do in order to be able to determine whether their plan is adequate. THE COURT: Well? So? MR. ELLIS: And that's what we intend to do, Your Honor. THE COURT: Intend to do when? MR. ELLIS: We intend to do it as quickly as we possibly can. THE COURT: I don't know what that means, as quickly as we possibly can. Is that next week? Next month? Next year? 2002? Or what? MR. ELLIS: Maybe, Your Honor, following this conference we need to get together with the parties and determine a schedule in which Westinghouse can submit proposals for investigation of the other sites. THE COURT: Or you can propose to them I suppose. MR. ELLIS: The type of investigation that we would propose they undertake? THE COURT: I suppose you could. MR. ELLIS: Well, it's something we would want to discuss, Your Honor. THE COURT: Meaning what? MR. ELLIS: We would want to discuss that within the agency to see if that is a better way to get the job done than to have Westinghouse come up to us with a proposal. I have not spoken about Neal's Landfill, Neal's Dump and Bennett's Quarry in very recent times with Mr. Hopkins. We, following this conference, Your Honor, I perceive - well, what I'm understanding is a clear message from Your Honor that we need to go back, we need to redouble our efforts and do whatever we possibly can to simultaneously track all of these sites. THE COURT: Yeah. Do it all at the same time. There's no reason whatsoever why you have to do them one after another. Who analyzes these samples which you get? MR . ELLIS: Your Honor, the samples that Westinghouse picks up, Westinghouse has a laboratory that it has analyzing the samples. The samples that EPA picks up, it has a separate laboratory doing the analysis of those samples. THE COURT: Okay. Talking about your own laboratory, EPA, if I brought a sample in there tomorrow from Neal's Dump, how long do you think it would be before your experts analyze it? MR. ELLIS: Your Honor, we need to determine at Neal's Dump, this is your example -- THE COURT: Just an example. MR. ELLIS: -- where the sampling needs to take place based on existing site information. That's the first thing we need to do. Then once the parties agree upon a plan for sampling and a sample is taken, it would take Mr. Hopkins -- how long would it take to first analyze the sample and then have the data -- it would take four weeks to originally analyze the sample. How long for validation? MR. HOPKINS: It takes approximately 4 weeks I'd say to get the sample analyzed and reported back and to validate it several weeks after that. THE COURT: It takes a month to examine a sample? MR. ELLIS: Mr. Hopkins, describe the process, please. MR. HOPKINS: It wouldn't need to take that long, Your Honor. THE COURT: I wouldn't think so. MR. HOPKINS: We could expedite it. But if I could clarify, it isn't simply a matter of taking a sample. Our objective is to make sure that the data that we do take is sufficient for us to be able to rely on it for use. We have to make sure that, as Mr. Ellis pointed out, that it is in a location that samples represent what we're doing. THE COURT: That's back to location again, for heaven sake. Let's say it's your sample, you have picked out the location. And you have now drilled the hole. You have some dirt, you bring it into your lab. Now what, you're going to take another month for the lab to look at it or what? MR. HOPKINS: No, it wouldn't take a month for the lab to look at it. But, what we would have to do to make sure that the information we get from the sample is actually a quality, we have to make sure that the way it's being analyzed, the sampling methodology and the sampling equipment that is used does not bias the result so that - THE COURT: Well, for heaven sakes doesn't your own laboratory know how to do that? I mean you are looking over the shoulder of your own laboratory? I can't believe that. MR. HOPKINS: No, all of the data that gets collected must be put in a -- the way we collect it has to be set out so that we know that the data at the end of a long, after the collection, the way it's collected, the way it's held, the way that it's processed actually gives us a result that isn't biased and that we can really use that because that's going to determine for us whether there's sufficiency of the remedy. THE COURT: This started out with a simple little questions: How long does it take your laboratory to analyze a bunch of dirt once it gets it? MR. HOPKINS: Priority sample I believe, Your Honor, could be analyzed very quickly, probably within a week to two weeks. THE COURT: I would say within an hour or two hours. What do you do to analyze a piece of dirt? MR. HOPKINS: There's a process of extracting a chemical from the matrix that it's held in. THE COURT: Yes, how do you do that? MR. HOPKINS: It's mixed in a laboratory with chemicals, reagents that remove it. THE COURT: Yes. MR. HOPKINS: And the result is then injected into a gas chromatograph and it's run. THE COURT: Rather quick, isn't it? Can't you do that in a matter of hours really? MR. HOPKINS: I think probably the actual process from start to finish once a person has the sampling and to the time that the results are available is a matter of hours. THE COURT: Matter of hours. Let the record show we have now gone from a month to a matter of hours on analyzing the sampling. Well, anything else? Well, I'm disapproving the new proposed schedule and I'm going to require that all of this sampling be done in each of these areas to be cleaned up not later than we'll say -well, that's pretty bleak. June 1st of next year. As soon as you get that done we will have another conference and we'll see about doing the rest of it. My view at this time is that this is going to be done in this century, not the next one. In a sense it's Westinghouse's responsibility, I expect Westinghouse to go forward. And if they have any problems with the EPA or anybody, please report to Magistrate Foster immediately. If that doesn't work, you can talk to me. That will be all this morning. MR. GRODNER: Your Honor. THE COURT: Yes. MR. GRODNER: You have just disapproved the schedule but is it your intent for the Winston Thomas remediation currently scheduled to go forward this summer? THE COURT: Oh, sure. I mean I'm just disapproving this long-range stuff. No, Winston Thomas should go forward as previously scheduled. And Lemon Lane also. MR. ELLIS: Your Honor, your message is very clear we will take that back and proceed immediately. THE COURT: Thank you. I am prepared to overrule the EPA regulations, too, if I have to. (Court adjourned at 10:36 a.m.) |
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