UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

Plaintiffs submit this memorandum in surreply to the Reply Memorandum of Law of Viacom, Inc. ("Viacom").

I. INTRODUCTION

Defendant Viacom admits that the remedies selected and described in Records of Decision by EPA for the Bennett's Dump sites, Neal's Landfill, and Lemon Lane Landfill have been completed but does not acknowledge that they failed to achieve their objective as a final remedy and this is the crux of Plaintiffs' Amended Complaint to the Court and of Plaintiffs' concerns for the future.

EPA news releases on the progress of the cleanups at Bennett's, Neal's Landfill and Lemon Lane Landfill touted the excavations as a final remedy and EPA's Deputy Regional Administrator David Ullrich and John Fernandez, Mayor of the City of Bloomington, held a news conference after the "cleanup" of Lemon Lane Landfill, supposedly the "final" cleanup of the community's Superfund National Priority List Sites, rejoicing at the completion of the excavation of these sites. This optimistic view was short-lived for on March 16, 2002 in a EPA news release to the Herald-Times the public learned that the cleanups had failed at all three of the major PCB Sites with releases of PCBs into the environment when it rained as high as they had been before the cleanup. EPA noted in fact that they had been concerned with Bennett's Dump since the cleanup was completed and at the much bigger Neal's and Lemon Lane Landfill Sites after finding after heavy rains the water carried high levels of PCBs flushed from Springs near the dumps.

The public was opposed to the Hotspot Cleanups at Neal's and Lemon Lane Landfills as based on inadequate study and excavations far too incomplete to be meaningful. The fact must be reiterated that the public wants total excavation of the PCB contaminated-soils and materials from these PCB Superfund National Priority List Sites which are located on KARST and have been discharging large quantities of PCBs into the Groundwater and eventually into the environment from Springs and Seeps into our streams and the air we breathe since 1948.

The main issue is stopping the direct poisoning of our Groundwater at the SOURCE, Monroe County's PCB Superfund NPL Sites. The poisoning of this community and our life support system by PCBs, considered one of the 12 top poisons of the world by the United Nations Environmental Program and marked for a world-wide eradication effort, has been going on unabated for 45 years. Shouldn't this poisoning be stopped at the SOURCE as completely as possible?

Everyone knows that KARST is the issue and poisons such as PCBs should never be dumped over karst ruining a precious natural resource, the Groundwater, but having been dumped should not be allowed to go unrestrained for nearly 50 years into the jointed, fractured cavernous bedrock destroying the Groundwater and easily escaping by numerous springs into the open environment and poisoning of the environment on a massive scale. It is because PCBs bioaccumulate in all organisms and are persistent in the environment and build up in the food chain to serious levels for birds, mammals, humans, etc. at the top of the food chain that makes them so dangerous.

EPA said in their March 16, 2002 news release that "the protectiveness issue is not negotiable", but it has been in the past and the public that has expressed the need for complete removal of PCBs from the major PCB sites has not been listened to. EPA is in another round of negotiations with the PRP and it is an appropriate time to try and be heard by the Courts before another unacceptable "final remedy" is proposed.

Lemon Lane Landfill discharges into Clear Creek which runs through the City of Bloomington and has had a number 5 warning posted by the State Board of Health, the highest contaminated warning possible, since 1976 when the fish in Clear Creek were found to be heavily contaminated with PCBs. The PCB pollution from Bennett's Dump Sites is discharged into Stout's Creek that drains another section of Monroe County, and PCB pollution from Neal's Landfill is discharged into Richland Creek which is in still another part of the County. This means that a large part of Monroe County as a whole is exposed to considerable first hand toxic PCB pollution from PCBs released into the air during turbulence in the streams, springs, seeps in these watersheds during storms, as well as the PCB poisoning of the aquatic ecosystem in these drainage systems.

EPA has been stressing the importance of water treatment systems at the springs as a part of the final remedy. But they should be considered necessary but secondary to complete removal. There is no question whatsoever but it more rational and successful to excavate them at the source and isolate them from the environment at that time, than it is to let them escape from the landfills into Groundwater and then try to collect them at numerous springs and seeps through a water collection and treatment process which is far more a matter of chance.

To compound the problem a water treatment process ignores the problem of air releases which can be prevented during excavation but practically impossible to collect once emitted into the atmosphere as they exit the springs and seeps and as they move downstream and are continually emitted into the air during turbulence.

Water treatment will be necessary after the landfills are excavated as an aid to collecting the PCBs remaining at and around the major landfills, springs, streams, etc. but should still be considered as a secondary stage of the cleanup.. The Illinois Central Water Treatment Plant was needed since 1958 at the ICS Spring and a water treatment plant was necessary at Neal's Landfill from the time Westinghouse started dumping capacitors there and it is obvious that a treatment plant is necessary at the Bennett's site but they are no substitute for excavation and isolation from the environment of the PCBs at the source or destruction of them by an appropriate new technology. A major site in which PCB sediments have collected is in the vicinity of the Illinois Central Spring down to Clear Creek itself which has been subject to PCB contaminated sedimentation since 1958.

The Records of Decisions on the excavation activities at the Superfund Sites came to an end when the actions were completed and there has been a long hiatus with no news releases as to what is going on or actions contemplated. It has been two and a half years since Lemon Lane Landfill was capped and we have heard nothing definite about proposed plans for further remedial actions beyond the fact that water treatment and PCB sediment accumulations would be addressed in later stages.

Both Viacom and Region V EPA in their replies to Plaintiffs' Amended Complaint have stressed that they are actively doing research and working on plans for further remedial action but there is no divulging of what the thrust of the planning is about.

Viacom sees section 1 13 (h)(4) of the Comprehensive Response Compensation and Liability Act (CERCLA), 42 U.S.C. section 9613(h)(4) as significant in this interim period when EPA is mulling over what to do next and notes that "it is undisputed that EPA is investigating whether to implement additional remedial measures at each of these sites." Following this with the statement that: "The question thus raised by the plaintiffs is whether section l 1 3(h)(4) allows them to bring this lawsuit while EPA is actively considering whether to implement additional remedies but before EPA has decided what to do."

The use of the word WHETHER is disturbing, because it leaves a wide open question whether and what remedial measures would be proposed for the cleanup of the sites. Also disturbing is Viacom's footnote 1 for they made it clear during negotiations concerning the "hotspot" cleanups, with water treatment and sediment cleanups as part of the cleanup process that they were opposed to further excavations and only said they would "consider" water treatment as part of the solution. Viacom is worried in the footnote that further "active" steps might mean further excavations might be required. and that EPA might sue to compel them to contribute to further cleanup.

Plaintiffs would like to think that the fact that the excavation phase of the cleanups failed to provide an acceptable remedy would be the salient point from which further action revolves but are not optimistic knowing what CBS said and failed to do in the past and what Viacom has said in their reply memorandum.

Viacom is not CBS who refused to do appropriate studies of the PCB Superfund Sites, prior to the "Hotspot" excavations, resulting in a very poor understanding of the total scope of contamination of the sites. Plaintiffs believe that EPA may have a poor idea of the total contamination of the Bennett Dump Sites which is a poor basis for further planning and Viacom in its obvious responsibility for cleanup of the sites should be the one to do further studies. Viacom has shown an unwillingness to do further excavations as noted above and what Viacom/CBS also opposed contributing in any way whatsoever to construction of the Time-Critical Action Illinois Central Spring Water Treatment Plant while proposing a water treatment facility that would have been ludicrously insufficient for the job. As much so as the Water Treatment Plant that Westinghouse built at Neal's Landfill that has been a resounding failure.

On page 2 of Viacom's Reply Memorandum they say that Plaintiffs' position is not only illogical but refuted by the language of the statute itself and by case law, noting in a 7th Circuit decision that:

"Congress intended by this statute [section I 1 3(h)(4)] to prevent unnecessary delay in implementing hazardous waste cleanups."

Plaintiffs believe that this decision may have been made in good faith by the 7th District Court but it does not apply to Monroe County/City of Bloomington citizens and we are essentially back to square one because of the decision-making of Region V EPA with Westinghouse (principal responsible party, PRP); and CBS and Viacom who successively bought Westinghouse out. The facts are:

The public had no part whatsoever in formulation of the Consent Decree (CD), which Westinghouse and its successors have clung to so tightly. It was forged by government officials working with their attorneys and signed by U.S. EPA behind closed doors.

The public approved of the provision to remove all of the PCB-contaminated soils and other contaminated materials in the PCB Superfund landfills over KARST as well as other severely contaminated sites such as the Winston- Thomas Sewage Treatment Plant for this was based on recommendations of the Scientific Consultants employed by the respective government parties for the need of total removal over KARST.

The public could not approve of a Hazardous Waste Incinerator to burn the PCB contaminated soils and other materials because Westinghouse was to build its own incinerator, a Westinghouse O'Connor Rotary-Kiln Combustor which for the type of contaminated soils and other contaminated materials it was to burn was an experimental technology.

The proposed use of Bloomington's Municipal Solid Waste as fuel for the incinerator added further uncertainty to the process of incineration as it had never been used before with PCBs concentrated in soil. It was in essence an incentive for Westinghouse to agree to the Project because Bloomington would pay tipping fees for its incineration and Westinghouse could pay off in 15 years or so the cost of building and operating the incinerator. A considerable number of citizens were outraged by the MSW proposal for they had been working for a Recycling Program for the City and County's MSW and this would essentially have ended this progressive step.

Citizens researched the incineration technology, read the literature on it, learned how it was functioning in other communities etc. and with this knowledge a strong consensus developed in the Monroe County/Bloomington community against an incineration remedy with our State Representatives helping to put the coup de gras on it as not in the public interest.

Plaintiffs have related how the first remedy, proposed without public input, was defeated because Region V EPA still likes to make the Monroe County Community feel it made an awful mistake while recent research by EPA itself on incineration of PCBs at their Laboratory at the Research Triangle in North Carolina confirms Plaintiffs' opinion that it is not a viable technology.

It was many years before another remedy was proposed and Westinghouse in the meantime was taken over by CBS Corporation. EPA had such a difficult time coming to an agreement with CBS on a remedy that Federal Judge Hugh Dillin, in charge of the Consent Decree and overseeing a remedy for cleaning up the PCB Superfund Sites took the initiative to appoint a Magistrate Judge Kennard P. Foster to expedite the process. A more or less complete removal was planned for Neal's Dump, situated near the White River, and Bennett's Dump Sites within Bloomington and these excavations took place in 1998-99 while the first "Hotspot" Cleanup at Neal's Landfill was in 1999 and Lemon Lane Landfill in 2000.

The public was not the cause of any delay in the 15 years between filing of the Consent Decree and the completion of the cleanups of the principal PCB Superfund NPL Sites and as previously noted CBS and EPA viewed this as a final remedy. The Records of Decision for the "Final Remedy" excavations do not cover another remedial decision because the "Final Remedy" failed, and a Proposed Plan, Public Hearing and a new Record of Decision should be prepared when a new decision is made.

The time that has expired since PCBs were released into the environment at Lemon Lane Landfill and discharged into Bloomington's Sewer system and Clear Creek, and Westinghouse workers subjected to first-hand PCB contamination because they were not properly protected by their employer, is 45 years. It is 27 years since the public learned of their continuous exposure to PCBs since 1958 and hat the fish in Clear Creek were heavily contaminated with PCBs and 22 years or more since Region V EPA took an active interest in our PCB sites, designating 4 of them NPL sites.

Plaintiffs believe this to be an appropriate time to take our case to the Courts because no plans have been formulated and or announced to get at the SOURCE of the community's problem since it was known that the "final remedies" had failed. The public is for total removal of the PCB contamination of the Landfills and a study of the best obtainable technology to destroy them safely or isolate them effectively from the environment and it is long past time that the public should be heard. What has been proposed in the past were EPA negotiated remedies with the PRPs responsible for the PCB pollution of our community, with cost-effectiveness, not protection of public health and the environment the primary concern as the law requires.

Plaintiffs disagree with EPA as to the part that water treatment should play in a final remedy believing that complete removal of PCBs from the landfills should come first. Plaintiff, Sarah Elizabeth Frey has also listened recently at a CIC meeting to reports on Geophysical Studies that Viacom has performed around Lemon Lane Landfill and does not believe this to be a viable way to address our problems nor see that they would contribute significantly as a solution. It seem that the money spent on this research would have been better spent on total excavation of the sites.

II. ARGUMENT

In its Reply Memorandum, Viacom argues that the Plaintiffs' action is barred under 11 (h)(4) of Comprehensive Environmental Response and Liability Act ("CERCLA"), 42 U.S.C. .9613(h)(4) because EPA has yet to make up its mind which remedy should be selected. Viacom's argument completely misses the mark in that Plaintiffs are not challenging any response action to be taken under .9604 or secured under .9606 by EPA in the future. Rather, Plaintiffs seek judicial review of the "hot spots" excavation of the sites in question which was selected as a fmal remedial action by EPA and which has been completed.

Viacom cites the case of Cooper Industries, Inc. v. EPA, 775 F. Supp. 1027 (W.D.Mich. 1991) arguing that the same argument raised by Plaintiffs in this case regarding the timing of judicial review was raised by the plaintiff and rejected by the district court in that case. In Cooper, the Plaintiff sought an injunction to prevent EPA from issuing a final Record of Decision ("ROD") or implementing EPA's proposed remedial action. Plaintiffs in this case only seek review of completed remedial actions, not contemplated future actions.

The review sought by Plaintiffs here is exactly the type of judicial review allowed under CERCLA 113(h).

Section I 1 3(h) provides that "no Federal court shall have jurisdiction . . . to review any challenges to removal or remedial action ... except:

(4) An action under section 9659 of this title (relating to citizens 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."

The quoted excerpt from the statute confers jurisdiction on the Court to hear Plaintiffs' case. Viacom's argument is that the final sentence of .113(h)(4) divests that Court of jurisdiction in this case. The final sentence reads: "Such an action may not be brought with regard to a removal where a remedial action is to be undertaken at the site." 42 U.S.C. .9613(h)(4).

Plaintiffs submit that the sentence in question does not divest the Court of jurisdiction for two reasons:

First, Plaintiffs' challenge is not to a "removal" action. The EPA actions challenged by Plaintiffs' amended complaint have consistently been characterized as "remedial" as opposed to "removal" actions. A brief review the statutory definitions of various types of clean-up activity under CERCLA is in order.

A "removal" action is defined by 42 U.S.C. .9601(23) as:

(23) The terms "remove" or "removal" means the cleanup or removal of released hazardous substances from the environment, such actions as may be necessary taken in the event of the threat of release of hazardous substances into the environment, such actions as may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances, the disposal of removed material, or the taking of such other actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare or to the environment, which may otherwise result from a release or threat of release. The term includes, in addition, without being limited to, security fencing or other measures to limit access, provision of alternative water supplies, temporary evacuation and housing of threatened individuals not otherwise provided for, action taken under section 9604(b) of this title, and any emergency assistance which may be provided under the Disaster Relief and Emergency Assistance Act [.42 U.S.C.A. 5121 et seq.]. A "remedial" action is defined by 42 U.S.C. .9601(24) as:

(24) The terms "remedy" or "remedial action" means those actions consistent with permanent remedy taken instead of or in addition to removal actions in the event of a release or threatened release of a hazardous substance into the environment, to prevent or minimize the release of hazardous substances so that they do not migrate to cause substantial danger to present or future public health or welfare or the environment. The term includes, but is not limited to, such actions at the location of the release as storage, confinement, perimeter protection using dikes, trenches, or ditches, clay cover, neutralization, cleanup of released hazardous substances and associated contaminated materials, recycling or reuse, diversion, destruction, segregation of reactive wastes, dredging or excavations, repair or replacement of leaking containers, collection of leachate and runoff, onsite treatment or incineration, provision of alternative water supplies, and any monitoring reasonably required to assure that such actions protect the public health and welfare and the environment. The term includes the costs of permanent relocation of residents and businesses and community facilities where the President determines that, alone or in combination with other measures, such relocation is more cost-effective than and environmentally preferable to the transportation, storage, treatment, destruction, or secure disposition offsite of hazardous substances, or may otherwise be necessary to protect the public health or welfare; the term includes offsite transport and offsite storage, treatment, destruction, or secure disposition of hazardous substances and associated contaminated materials.

Finally, a "response" action is defined in 42 U.S.C. .9601(25) as:

(25) The terms "respond" or "response" means remove, removal, remedy, and remedial action; all such terms (including the terms "removal" and "remedial action") include enforcement activities related thereto.

In the final sentence of 113(h)(4), Congress chose the term "removal" in describing what actions would be protected from judicial review. Congress could have included "remedial actions" in the list of what clean-up actions would be insulated from judicial review. Or, if Congress truly intended to prohibit judicial review of all clean up activities when a remedial action is to be taken at the site, it would have used the term "response action" in describing the actions precluded from review.

The intent of Congress in this regard is readily apparent from the plain meaning of the statute. Congress meant to prohibit plaintiffs from seeking review of preliminary "removal" actions when more comprehensive "remedial" actions are still in the offing.' Congress could have used any of the three terms descriptive of various levels of response action defined in CERCLA in drafting the .1 13(h)(4). Congress limited the bar to jurisdiction to "removal" actions only. Thus, in this case, had EPA chosen "hot spots" excavation as an interim removal action while making it clear through an ROD that more comprehensive excavation of the site would take place in the future as part of a final remedial action, .1 1 3(h)(4) would prohibit citizens from complaining about the incompleteness of the excavation. Such an application of the statute would be logical and in keeping with the overarching purpose of the statute which is to provide prompt and effective responses to contamination of the environment. In the case of the three sites in question, however, the "hot spot" excavation was selected as the final remedial action with regard to excavation. The excavation is complete and a cap is in place. The problem faced by the Defendants is that the Plaintiffs have consistently taken the position that they believed the "hot spot" excavation was inadequate. Plaintiffs have asserted at every juncture that the only appropriate excavation response would be to completely excavate and isolate all contaminated materials from the environment. Now that the "hot spot" excavation selected by EPA has been completed, Plaintiffs have been vindicated by EPA's announcement that the remedial action selected by EPA has not been effective to reduce the release of PCBs into the environment.

Plaintiffs submit that now is the appropriate time to seek review of the completed remedial action under the timing of review provisions of CERCLA.

Plaintiffs have explained in their initial response to EPA's motion for summary judgment that the bar to review of removal actions should not apply unless the contemplated fixture "remedial" action has been formally selected by means of a Record of Decision.

The second reason Plaintiffs submit that the final sentence of . I 1 3(h)(4) does not bar their action for review of the remedial actions now completed by EPA is that the statute refers to future remedial actions to be undertaken "at the site." In this case, EPA has stated that it contemplates water treatment and sediment removal downstream from the sites. If the Court were to grant the relief sought by Plaintiffs and order complete excavation of all remaining contaminated materials from the three sites, such a remedy would not prevent the Defendants from proceeding with planning and implementation of water treatment and sediment removal. These additional activities would be taking place outside the sites where the excavation would be occurring. Again, this interpretation is in keeping with the plain language as well as the stated purpose of the statute. Only the selection and implementation of additional "remedial" actions "at the site" result in a bar to review of"removal" actions which have already been taken. One can envision a situation where EPA completes an interim emergency removal excavation of"hot spots" at a site and plans to return to complete a more comprehensive excavation or treatment of contaminated materials on the same site. A court order directing EPA to perform additional response actions at the same site might interfere with completion of the additional remedial actions EPA planned to take. Workers would be present at the site simultaneously attempting to comply with a federal judges order while other workers would be at the same location carrying out the EPA's planned additional remedial actions. Congress sought to avoid such problems by passing 113(h)(4).

There is no such potential conflict in this case. There is a need for complete excavation and isolation of the contaminated material from the three sites in question without further delay

III. CONCLUSION

The Defendants have failed to demonstrate that EPA has selected any future remedial action to be undertaken at the sites which would preclude judicial review of the completed "hot spot" remedial action. Therefore, EPA's motion for summary judgment should be denied.

Respectfully submitted,

Rudolph Wm. Savich
One of Counsel for Plaintiffs