Draft Questions and Answers
for Bloomington Meeting
October 1, 1996
From: Dan Hopkins
To: Distribution List
These are the draft questions and answers that I anticipate for the October
15, 1996 meeting with Bob Martin and the Bloomington Community.
Question 1: What was required of EPA, in terms of remedy investigation
and selection, at the time of the signing of the 1985 Consent Decree.
Response 1: At the time that the 1985 Consent Decree was signed, U.S.
EPA was required to conduct investigations and develop remedies for Superfund
sites in accordance with the provisions of the July 16, 1982 National Oil
and Hazardous Substances Contingency Plan ("NCP"). The 1982 NCP
contemplated that an RI/FS would be performed, however, an RI/FS was not
required. The 1982 NCP provided that U.S. EPA could pursue a voluntary agreement
or an administrative or judicial process (as an alternative to a Fund financed
remedial action) to have those persons responsible for the release clean
up in a manner that effectively mitigated and minimized damage to and provided
adequate protection of public health, welfare, and the environment. The
lead agency (U.S. EPA or the State) was required to evaluate the adequacy
of clean-up proposals responsible parties or determine the level of clean-up
to be sought through enforcement efforts, by considering:
1) whether initial remedial measures can and should begin before final
selection of a remedy [Sec. 300.68(e)(1)] -In fact, initial remedial measures
(e.g. installation of fences and warning signs, installation of surface
capping, removal of surface level capacitors, and hydro vacuuming of area
streambeds) were implemented at each of the sites. In the case of the Anderson
Road Landfill, the contaminated material (i.e. surface soil and capacitors)
was completely removed from the site.
2) the appropriateness of controlling the source of the contamination
[Sec. 300.68(e)(2)] -The final remedy not only considered source control
but provided that large portions of each of the sites were removed and treated.
3) whether to take off-site remedial actions [Sec. 300.68(e)(3)] -off-site
control was provided by removing stream bed material and fencing the Illinois
Central Spring area.
4) that a remedial investigation should be undertaken by the lead agency
or responsible party [Sec. 300.68(f)] - The purpose of the RI/FS was to
determine the nature and extent of the problem and to gather sufficient
information to determine the necessity for and proposed extent of the remedial
action. The type of work performed at the sites included geophysical studies,
interpretations of aerial photographs, installation of monitoring wells,
surface borings, monitoring of water wells, seeps, and springs, sampling
of a variety of materials (site waste material, fish, deer browse materials),
assessments of PCB contaminated water movement, geologic investigations
and interpretations, the historical placement of waste material at the sites
and the areal extent of contamination.
5) development and analysis of alternatives [Sec. 300.68(g)-(j)] -
For at least Neal's Landfill and Neal's Dump, EPA prepared documents
describing the assessment of remedial alternatives for the sites. The remedial
alternatives evaluated for Neal's Landfill included the following;
a) an interceptor trench b) an impermeable barrier around and under the
site c) an impermeable barrier up gradient from the site d) an impermeable
barrier down gradient with treatment of ground water and leachate
In addition, engineering and hydro geologic experts working for the governmental
parties reviewed the feasibility of installing a ground water purge system.
For Neal's Dump, the following remedial alternatives were evaluated;
a) removal of refuse and contaminated soils b) installation of a permanent
cap c) surface water drainage control, grading and revegetation of disturbed
areas d) installation of an impermeable barrier around and under the site
e) security fencing f) in-situ treatment of waste and contaminated soils
g) leachate collection system
The remedial action measures in the Consent Decree were negotiated in
the settlement discussions with Westinghouse after consideration, by the
experts, of site geologic conditions, the extent of contamination, and the
alternative remedies described above.
In the 1982 NCP, U.S. EPA gave itself flexibility in determining the
type and extent of information gathering provided that it (or the lead agency)
considered the above-mentioned factors [Sec. 300.68 (e) through (g)] in
arriving at its conclusion.
Question 2: Did EPA do a formal (or informal) RI/FS for any of the Consent
Decree sites?
Response 2: Neither U.S. EPA nor any other party performed a formal RI/FS
for the Consent Decree sites. Rather, during the course of the litigation
for this matter, investigative work was performed that included; geophysical
studies, interpretations of aerial photographs, installation of monitoring
wells, surface borings, monitoring of water wells, seeps, and springs, sampling
of a variety of materials (site waste material, fish, deer browse materials),
assessments of PCB contaminated water movement, geologic investigations
and interpretations, the historical placement of waste material at the sites
and the areal extent of contamination.
The investigative work was performed by experts and consultants retained
by the City of Bloomington, the County of Monroe, the Indiana State Board
of Health, and EPA. The recommendations and conclusions of the experts and
consultants were considered by the parties in connection with developing
the settlement of this matter. The information gathered and the recommendations
and considerations made by the experts and consultants were of the same
type of information and recommendations that might otherwise have been included
in a formal RI/FS. Because this matter was in litigation, the parties concluded
that it was necessary to protect information developed in connection with
the sites through attorney work-product and attorney-client privileges.
The hope was that the best possible clean-up would be achieved through the
pursuit of the litigation process.
Question 3: Isn't it a procedural error that an RI/FS was not performed?
Does the fact that you did not perform a formal RI/FS make the Consent Decree
inconsistent with the law in effect at that time?
Response 3: No and No. EPA was required to consider the factors described
above in response 1, which it did.
Question 4: The lack of public participation in the process of selecting
a remedy for the Bloomington sites has historically been difficult for some
in the community to accept. The community had essentially only a "take
it or leave it" choice. How could this choice be considered fair?
Response 4: There were numerous opportunities for public comment provided
before and after the signing of the Consent Decree (but before entry of
the Consent Decree by the Court), as shown below. The community, however,
was provided opportunities to comment very late in the process of remedy
selection and it had effectively only an "accept or reject" choice.
Importantly, the Federal District Court was required to review the settlement
to make sure that the agreement was reasonable and was in the public interest.
The Court did reach that conclusion, after considering public comment, prior
to entering the Consent Decree.
Pre-signing public involvement included:
1) City held a public meeting regarding negotiations for proposed incinerator
project (1984); 2) Joint press conference held on the terms of the proposed
Consent Decree (1984); 3) U.S. EPA held a public meeting on proposed settlement
(1984); 4) U.S. EPA issued a press release and notices in newspaper announcing
public meeting to be held on Dec. 5, 1984 (1984); and 5) Parties hold press
conference to describe proposed settlement (Dec. 3 1984).
Post-signing (pre-entry of C.D.) public involvement included:
1) EPA holds public meeting on proposed Consent Decree (Dec. 5, 1984);
2) Parties hold public meeting sponsored by the City (Dec. 13, 1984);
3) Parties participate in television appearance (Jan. 13, 1985);
4) City sponsors (EPA attends) three day public session on proposed C.D.
(Feb. 14-16, 1985);
5) City sponsors (EPA attends) two day public session on incineration and
air emissions (Feb. 22 & 23, 1985);
6) City holds public meetings and votes to adopt proposed C.D. (March 1985);
7) County hold two public meetings and votes to adopt proposed C.D. (April
1985);
8) Indiana Env. Management Board holds public meeting (EPA participates)
and votes to adopt proposed C.D. (April 17, 1985);
9) DOJ published notice announcing comment period on proposed C.D. (May
24, 1985); and
10) Federal Court provided 60 day public comment prior to entering C.D.
Question 5: Why did the Ombudsman's Office become involved in the issue
of whether the Consent Decree is legal or whether an RI/FS had been done?
Question 6: The impression given through newspaper articles is that the
Ombudsman's Office questioned the legality of the 1985 Consent Decree. Do
you?
Questions 5 & 6 should be answered by the Ombudsman's Office. |
