REPORT AND RECOMMENDATIONS
of the Magistrate Judge and Special Master
Jan 20, 1999 .
In the
United Sates District Court
for Southern District of Indiana
Indianapolis Division
UNITED STATES OF AMERICA,
Plaintiff,
The STATE OF INDIANA and the INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT,
Intervening plaintiffs,
vs.
CBS CORPORATION, f/k/a WestinghouseElectric Corporation,
Defendant.
The CITY OF BLOOMINGTON, INDIANA; The UTILITIES SERVICE BOARD
OF BLOOMINGTON, INDIANA; and MONROE COUNTY, INDIANA,
Plaintiffs,
vs.
CBS CORPORATION, f/k/a Westinghouse Corporation, and MONSANTO
COMPANY,Defendants.
REPORT AND RECOMMENDATIONS
of the Magistrate Judge and Special Master.
By order of November 21, 1997, the Court appointed this magistrate
judge to serve as a Special Master "to see that the aims
of the consent decree, as modified by the orders of the Court,
are carried out expeditiously and to resolve possible disputes
between the parties." Pursuant to Rule 53 of the Federal
Rules of Civil Procedure, I hereby submit this interim Report
describing the progress achieved to date in implementing the
aims of the consent decree and Recommendations of aproposed schedule
for future progress.
I. Progress to Date.
A. Progress.
Initially upon appointment, I viewed each site personally and
then convened pre-trial conferences in chambers among the parties
to become familiar with the legal and technical issues involved
in theremediation of the Consent Decree sites. I received oral
and written presentations from the parties about the issues.
Pre-trial conferences continued to be held on a frequent basis
to monitor the progress of theparties' negotiations and of data-gathering
and remedial activities.' Where necessary, I assisted the parties
as mediator to help resolve disputes and keep cleanup activities
moving forward expeditiously. l o date,substantial progress has
been made in implementing the aims of the consent decree. As
work has gone forward, I visited each site to observe the progress
of cleanup activities.
B. Implementation of the Consent Decree.
To date, the following remedial measures have been implemented:
- In February 1998, CBS removed and properly disposed of 10,000
tons of soil, debris, and sediments from the Interim Storage
Facility at the Winston Thomas site. This material consisted
of soil and debris from the Anderson Road landfill and sediments
from five streambeds that had been previously excavated under
the terms of the consent decree.
- In May 1998, CBS began work on the remediation of the remaining
portions of the Winston Thomas site, having previously completed
remediation of other components at the site in1997. In 1998,
CBS completed remediation of two of the remaining components
on the site: the trickling filter and the abandoned lagoons.
With respect to the third component, thetertiary lagoon, CBS
will have excavated and removed over 85% of the contaminated
sludge, including all contaminated clay material that can be
removed by dredging by the endof 1998. To date, CBS has removed
and properly disposed of 18,000 tons of contaminated sewage sludge
and clay soil from the tertiary lagoon, as well as 11,800 tons
of contaminated sludge and soil from the abandoned lagoons and
1,100 tons of sediments and rock debris from the trickling filter.
- As part of the remedial activities at the Winston Thomas
site during 1998, the Utilities ServiceBoard of Bloomington,
Indiana treated, at its Dillman Road Wastewater Treatment plant,
over 29,306,760 gallons of wastewater pumped by CBS from the
tertiary lagoon.
- In September 1998, CBS began work on the excavation of Neal's
Dump. CBS has removed200,000 pounds of capacitors and 7,250 tons
of contaminated soil and debris. The capacitors were incinerated
and the other materials were landfilled. Excavation and site
restoration has been completed.
- The governmental parties provided oversight for the remedial
activities implemented by CBS atthe Interim Storage Facility,
Winston Thomas, and Neal's Dump during 1998.
In September 1998, the E.P.A. began efforts to implement a spring
water treatment system at Illinois Central Springs, located about
2000 feet southeast of the Lemon Lane Landfill. Such a treatment
system was not provided for in the original Consent Decree.
In addition to the above remediation work, several significant
data gathering events have occurred, including:
- In March 1998, the E.P.A. and CBS undertook sampling of landfill
material at Neal's Landfill.
- In April 1998, CBS undertook water, sediment, and biota sampling
at Conard's
- In April 1998, CBS began a geologic investigation to locate
groundwater conduits around Lemon Lane Landfill. The purpose
of the investigation is to obtain data that could be used indeveloping
water control or treatment measures. This investigation is continuing.
- In July 1998, the E.P.A. began a treatability study for treating
contaminated groundwater at IllinoisCentral Springs (from Lemon
Lane Landfill).
C. Plans.
The parties have engaged in substantial discussions concerning
the remediation work to be performed at the remaining three sites:
Bennett's Dump, Lemon Lane Landfill, and Neal's Landfill. At
a pre-trial conference on November 16, 1998, the parties indicated
that they had reached consensus about excavation work to be performed
at Bennett'sDump and Lemon Lane Landfill, subject to preparing
mutually agreeable Statements of Work andConsent Decree amendments
and submission of those documents for formal approval in accordance
with the approval processes of each of the parties. The parties
further informed me at that time that they had made substantial
progress toward consensus on an approach to the excavation of
certain materials from Neal's Landfill and consolidation of excavated
material from other sites at Neal's Landfill.
D. Outstanding Issues.
Outstanding issues among the parties remain, but can be addressed
separately from the current excavation work at the sites. These
unresolved issues chiefly concern treatment of water at Lemon
LaneLandfill, additional water treatment at Neal's Landfill,
removal of sediments from certain streambeds, andthe governments'
potential claims for natural resource damages and cost recovery.
CBS contends that these claims are barred by the Covenant Not
to Sue in the Consent Decree and are not included within the
parties' current agreements. The governments contend that the
parties agreed or understood that the consideration of water
treatment and sediment removal were integral to the targeted
excavation scheme planned for Lemon Lane Landfill and Neal's
Landfill as an alternative to the now-abandoned complete excavation
required in the Consent Decree. The governments want the issues
of water treatment and sediment removal to be discussed on the
scientific and technical merit of what will protect public health
and the environment, otherwise, the extent of the current targeted
excavation scheme must be reexamined and possibly reopened if
significant public and environmental health risks remain after
targeted excavation. CBS agrees to negotiate about additional
water treatment and sediment removal and, if consensus is reached,
is willing to undertake water treatment and sediment removal
beyond the requirements of the Consent Decree, but CBS does not
wantto relinquish defenses under the Consent Decree in advance
of a consensus and does not want to face the risk of demands
for additional excavations after having negotiated and completed
expensive targeted excavations.
The parties will continue negotiations about water treatment
and sediment removal, natural resource damages, and cost recovery
both during and after the excavation work.
II. Proposed Schedule.
In its November 21, 1997 order, the Court stated that it expected
that remediation work would be implemented simultaneously at
several sites, rather than at one site at a time, and that remediation
of the sites would be concluded by the end of 1999. During the
course of the pretrial conferences, and through review of materials
submitted by the parties and personal visits to the sites themselves,
I have become acquainted with the technical and practical problems
in undertaking excavation, removal, and water treatment activities
at these sites.
At the November 16, 1998 pre-trial conference, the parties collectively
proposed a schedule for work to be done at the remaining sites.
The parties' proposed schedule would involve work continuing
at multiple sites simultaneously, but would call for completion
of excavation work by the end of the year 2000, rather than 1999.
In addition, the governments propose that negotiations regarding
interim and permanent water treatment and sediment removal measures
regarding Neal's Landfill and Lemon Lane Landfill/Illinois Central
Spring will occur approximately one year after the completion
of source control (targeted excavation, etc.) at each site. The
interim year will allow (1) CBS to complete its investigation
of water conduits at Lemon Lane; (2) the parties to determine
whether the need for water treatment/sediment removal has changed;
and (3) will allow CBS to determine whether water conduit testing
and permanent water treatment/sediment removal is needed at Neal's
Landfill.
Under the proposed schedule, CBS would perform the following
work in 1999:
- complete the excavation and closure of the Winston Thomas
site, currently anticipated by theend of September 1999;
- undertake and complete the excavation and closure of the
Bennett's Dump site; and
- undertake and complete the excavation and consolidation of
materials at the Neal's Landfillsite, but not construct the cap
until the year 2000.
In the year 2000, CBS would perform the following work:
- construct the cap at Neal's Landfill; and
- undertake and complete the excavation work, surface water
control measures, and capconstruction at Lemon Lane Landfill.
I also propose that the governments' proposal of a schedule for
negotiations on water treatment and sediment removal be accepted.
While this proposed schedule would call for work to be completed
on the excavation of these sites a year later than contemplated
in the order of November 21, 1997, this schedule is both practical
and expeditious, considering the work to be performed. Discussions
regarding water treatment and sediment removal will occur both
while the excavation work is underway and after excavation is
completed. Accordingly, I recommend that the Court approve this
proposed schedule.
This schedule takes into consideration practical problems affecting
the excavation of the two largest sites, Neal's Landfill and
Lemon Lane Landfill. Under the proposed schedule, the Neal's
Landfill remediation project would take two years; however, it
is expected that, during the first year, 1999, all of the material
to be excavated would be removed, and material remaining on the
site would be consolidated. When this work is done, a landfill
footprint would be developed for designing the cap, but the cap
would not be installed until the second year, 2000. This would
allow CBS to base its cap designon the actual landfill contours
following excavation and consolidation, rather than on hypothetical
assumptions about the landfill contours made before the excavation
and consolidation work is complete. Also, this schedule would
allow CBS to construct the cap in warmer rather than colder weather
which might affect the integrity of the cap. The end result is
expected to be a better designed cap.
With respect to Lemon Lane Landfill, the proposed schedule calls
for the commencement of excavation work in the year 2000. The
parties have different reasons for wishing to begin work at Lemon
Lane Landfill at that time. The E.P.A. is constructing a system
to treat groundwater at Illinois Central Springs which is expected
to be in operation by the late summer of 1999 and the governmental
parties believe that it would be beneficial to have this system
operational before the excavation work begins at Lemon Lane Landfill.
CBS believes that it is preferable to defer the excavation of
the landfill until the year 2000 so that 1999 can be used to
design surface water control measures around the landfill that
can be implemented at the same time excavation is occurring.
Also, there are practical advantages in not scheduling the excavation
work for Lemon Lane Landfill at the same time as excavation work
at Neal's Landfill, Bennet's Dump, and Winston Thomas,which are
all scheduled for 1999. To perform the excavation work properly
at these sites, CBS needs both experienced personnel in-house
and experienced contractors; ordinary construction contractors
are not qualified for much of this work. CBS would also need
to engage substantial transportation resources to move all the
excavated material safely from four sites at the same time. If
work at all of these sites were going on simultaneously, it would
strain CBS's in-house and available contractor resources to a
point where the quality of the work could be compromised. CBS
believes that staging excavation work at the sites sequentially
over a two year period would allow for better overall project
management.
III.Recommendations.
I recommend that the Court approve the following schedule:
1. In the year 1999:
a. complete excavation and closure work at
the Winston Thomas site;
b. undertake and complete excavation and closure
at Bennett's Dump; and
c. undertake and complete excavation and consolidation
at Neal's Landfill.
2. In the year 2000, and consistent with the results of the parties'
discussions regarding water treatment and sediment removal:
a. construct a cap at Neal's Landfill; and
b. excavate and close Lemon Lane Landfill.
3. The parties shall engage in further settlement negotiations
regarding water treatment and sediment removal aspects of remediation
at Neal's Landfill and Lemon Lane Landfill, including negotiations
for permanent water treatment solutions for these sites, approximately
one year following the completion of source control activities
at each site. Through the year following the completion of source
control activities, water conduit and other relevant investigations
shall continue and/or be initiated at each site as necessary
or useful to determine the need for interim and permanent water
treatment at each site and sediment removal.
4. Discussions and negotiations regarding the governments' claims
for cost recovery and natural resources damages shall continue.
5. The Court authorizes the Special Master to continue to oversee
the implementation of the consent decree and the resolution of
disputes among the parties until the work is completed; the Consent
Decree, as amended, is fully implemented; and the disputes among
the parties are resolved.
Done this 20th day of January, 1999.
Kennard P. FOSTER, Magistrate Judge.
Conferences were held on November 18, 1997; December 10, 1997
(telephone); December11, 1997 (Bloomington); January 7, 1998
(telephone); January 13, 1998; January 22, 1998; March 4,1998
(telephone); March 6, 1998; March 19, 1998 (telephone); March
26, 1998; March 31, 1998(telephone); April 16, 1998 (telephone);
June 18, 1998 (telephone); July 14, 1998; August 14, 1998;September
15, 1998; October 16, 1998 (telephone); and November 16, 1998.
