The federal defendant filed a Reply memorandum on April 16, 2003; however, it was not served upon Plaintiffs' counsel until April 25, 2003. This surreply memorandum is filed within seven (7) days of service of the federal defendants' Reply.

In their Reply memorandum, Defendants raise a new argument or articulate their original argument for the first time in a way that it can be perceived for what it actually is. Defendants in their Reply argue that:

1 ) Plaintiffs' Complaint challenges in-progress information gathering by EPA via ViaCom. Defendants imply this without citing to any part of the Complaint;

2) This in-progress information gathering equates to a"removal action" as that term is defined under CERCLA;

3) EPA intends to take some yet to be defined action in the future based on the yet to be completed information gathering;

d) Defendants in their Reply admit that significant releases of PCBS to the environment continue to occur from these three sites;

e) Defendants admit that any future remedial action that may follow the current information gathering activities is not currently selected under CERCLA section l 04 or secured under CERCLA section 106 (and could not be because such remedial action has yet to be defined);

i) Viacom maintains the position that after the information is gathered that no additional remedial may be required at all;

g) CERCLA section 113(h)'s plain language states, as Defendants recognize and quote, that "no federal court shall have jurisdiction to review any challenge to a removal or remedial action selected under section 9604 of this title, or to review any order issued under section 9606(a) of this title" except in certain specified exceptions. 42 U.S.C. sec. 9613(h). The citizen suit exception of this same provision provides an exception to this already narrow bar for:

an action under section 9659 of this title (relating to citizen suits) alleging that the removal or remedial action taken under section 9604 of this title or secured under section 9606 of this title was in violation of any requirement of this chapter. Such an action may not be brought with regard to a removal where a remedial action is to be undertaken at the site.

h) The Schalk and Cooper Industries cases cited by Defendants are inapposite and do not stand for the proposition that a completed remedial action cannot be challenged in a citizen suit (as Plaintiffs do here), but stand for an inapplicable rule that a yet to be completed action cannot be challenged on the grounds of illegal procedure (Schalk), Schalk v. Reilly, 900 F.2d 1091 (7th Cir. 1990), and cannot be challenged at any stage before completion including the earliest stage before approval of the ROD, Cooper Industries. Inc. v. EPA, 775 F. Supp. 1027 (W.D.Mich. 1991). Here the RODs are final and all remedial actions specified in the RODs are completed. Cooper Industries is, of course, non-binding authority even if read to be applicable.

i) Defendants engage in baseless exaggerated rhetoric when they assert that Plaintiffs' position is illogical, contrary to caselaw and "would open a massive loophole in the well-established interpretation of section 113(h)." It is Defendants whose position is contrary to the plain language of the statute. There is no caselaw to support Defendants' position and there is a reason why. Congress intended the protection from judicial review to apply to agency actions selected by the proper statutory procedure that Congress specified in sections 9604 and 9606. Congress did not contemplate EPA making sweetheart deals with polluters such as ViaCom where some portion of a remedy would not be included in the selected remedy in the ROD even though EPA believed it necessary to protect the public simply because the polluter refused to pay for it. Here EPA wants to have their cake and eat it too, EPA wants the protections of section 9613(h) without following the procedures in the statute required to obtain that protection. In so doing, EPA asks the District Court to take Congress' role and re-write the statute. This, of course, is not the proper role of the courts.

EPA and Viacom freely acknowledge that the Source Control Operable Unit excavations of the PCB Superfund NPL Sites were complete. What they failed to mention in their Reply Memorandums on EPA's Motion for Summary Judgment was that the excavations at all three sites had failed to accomplish their objectives, which in the Lemon Lane Landfill Record of Decision (ROD) were stated to be:

Reduce or eliminate the direct contact threat associated with contaminated landfill material.

Minimize contaminant migration within the karst topography and to Groundwater and surface waters to levels that ensure the beneficial reuse of these resources.

Minimize future migration of Groundwater contamination to surface water.

The Source Control Operable Unit did not eliminate, reduce, or minimize migration of PCBs in the remedial actions performed at the Superfund Sites to Groundwater and the environment. As stated in the EPA March 16, 2000 News Release to the Herald -Times the release of PCBs into the environment continued at the high levels of previous releases at these sites, before the so-called "cleanups".

This was no surprise for none of the Hotspot Cleanups were based on even a semblance of an adequate study and this harks back to the fact that EPA denied Monroe County/ City of Bloomington citizens requests for Remedial Investigations/ Feasibility Studies on any of the Superfund Sites, simply because Westinghouse, CBS and Viacom the PRPs did not want them. For EPA to say functional equivalents were made is also fatuous for the history of these sites show how inadequate and unacceptable were the studies but also the amount required to be excavated.

Beyond the fact that the studies were inadequate is the fact that the excavations were minimal and CBS, the principal responsible party ("PRP") at the time refused to agree to more. Another fact is just as meaningful for EPA required no removal at Neal's Landfill below 500 ppm making a sham of cleanup of that 18 acre landfill.

Bennett's Dump seems a special case for the site was dotted with quarries from one end to the other that were covered over once filled and EPA's choice for excavation was probably only part of the contamination.

The most significant part of a cleanup is Source Control and in the Monroe County Superfund NPL Sites the PCBs were concentrated in landfills and it should be recognized by EPA now, as they did back in 1984-85 when the Consent Decree was being developed and they were following their scientific consultants advice, that if you are going to cleanup the Groundwater and the environment that the most significant action to take is cleanup of the PCB- containing landfills to the extent possible, as the first step. Plaintiffs are concerned that EPA is trying to walk away from Source Control at the Source---- which failed for obvious reasons, and go on to water treatment and PCB sedimentation cleanups, the 2nd and 3r~ Operable units.

EPA states on page 8 of its Reply Memorandum that the work completed to date was never intended to stand on its own as a remedy. Plaintiffs opposed the "hotspot cleanups" as obviously inadequate for Source Control so obviously agree, but the fact that it failed should motivate renewed effort to remove the remaining PCB -contaminated soils and other PCB contaminated materials. Although they objected to the proposed "hot spot" excavation, Plaintiffs were constrained by the timing of judicial review provisions of CERCLA to wait until EPA completed its source control remedial action. The "hot spot" excavation was an utter and undeniable failure. It is now time for the source control remedial action to face judicial scrutiny.

CONCLUSION

For all the reasons stated herein and in Plaintiffs' initial Response to Defendants' Motion, Defendants' Motion for Summary Judgment should be denied. Respectfully submitted,

Rudolph Wm. Savich
One of Counsel for Plaintiffs