EPA MISCONDUCT IN BLOOMINGTON INDIANA SUPERFUND CLEANUP

1. The Record of Decision (ROD) for the enforcement action (called an Enforcement Decision Document or EDD) against "potentially responsible party" (PRP) Westinghouse Electric Corporation was negotiated by EPA and local government in secret with Westinghouse.
2. The ROD/EDD was signed, making it a final agency decision, prior to the first public hearing to take public comment on the cleanup proposal, in violation of the Superfund regulations, EPA policy, and the National Environmental Policy Act (NEPA).
3. Despite the fact that EPA was required to create an ROD/EDD and take public comment on it before signing it as a final agency decision, no ROD/EDD was released to the public. No ROD/EDD was available during the public comment period or even during the later federal court's consideration of the proposed consent decree incorporating the EPA approved remedy. The EPA kept the ROD/EDD secret for two and a half years during which the federal court had signed the proposed decree into law, several legal and political challenges were brought by concerned community groups, and mass public opposition to the proposal was documented.
4. It appeared to InPIRG that EPA intended to keep the ROD/EDD secret indefinitely, even from the federal court, which should have reviewed it, and public comment on it, prior to signing the remedy selected into law. InPIRG began a campaign to force EPA to release the document through FOIA requests, phone requests to EPA, and requests to local officials. EPA, after several months of stalling, finally released the document in response to InPIRG's 1987 FOIA request. It was signed and dated by EPA headquarters in Washington on December 4, 1984, one day before the first public meeting on the proposed remedy. It was not released until two and a half years later, and then only because persistent efforts by InPIRG through FOIA forced its release.
5. When the ROD/EDD was finally released, it was apparent that it was not based on, nor did it include or even refer to a Remedial Investigation/Feasibility Study (RI/FS). The RI/FS is a comprehensive study of alternative remedies and their environmental impacts, which is required prior to EPA remedy selection at all NPL sites. As it became clear, EPA had joined negotiations with the City of Bloomington and Westinghouse, both PRPs, after they had already announced the remedy that they intended to implement, and that remedy did not change after EPA joined the negotiations. However, under the law, EPA must be the one to select the remedy, and even influence by the PRPs during the formative stage, prior to the comment period, is improper. While EPA procedure allows negotiation with PRPs regarding litigation settlements, the remedy selection process must be completed, including the RI/FS, ROD/EDD and public comment thereon, prior to settlement negotiations. In the Bloomington, Indiana case, the PRPs didn't just influence EPA's choice of remedy decision, they made it for EPA in advance of the entire agency deliberative and public comment processes.
6. The "remedy" selected by this improper process turned out to be an untried and ill-thought through combination of hazardous waste incineration and garbage incineration. This plan, coincidentally, not only omitted many contaminated areas from the cleanup plan, thus minimizing the PRP's cost, but actually required taxpayers to pay the PRP to conduct the cleanup of the PRP's own pollution.

InPIRG sent essentially the same documentation which had been provided to the EPA IG to Indiana Congressman Lee Hamilton and requested the Congressman's assistance. Congressman Lee Hamilton forwarded InPIRG's questions and concerns to Congressman John Dingell's Subcommittee on Oversight and Investigations. Congressman Dingell began an inquiry into the matter and sent a letter to EPA IG John Martin asking for a formal response to several detailed questions about InPIRG's allegations of EPA misconduct.

The EPA IG apparently contacted Region V EPA to answer the questions but did not contact InPIRG. The IG then submitted a report, after several months delay, to Congressman Dingell's Subcommittee. The report acknowledged several of the key factual allegations made by InPIRG. However, the report whitewashed the critical issue of illegality by 1) mischaracterizing the minimum requirements of the RI/FS and ROD/EDD process in place at the time (1984-85), 2) erroneously concluding that those requirements were met by EPA's procedures in the Bloomington case, 3) repeating without question EPA's false assertion that the existence of litigation somehow justified omission of the written RI/FS and omission of public comment prior to final remedy selection, and 4) conveniently ignoring all the statutory and regulatory documentation provided by InPIRG, including several high level EPA memorandums, which directly contradicted the IG's (and EPA's) mischaracterizations.

The IG report glossed over the fact that EPA failed to release the ROD/EDD for two and a half years, by repeating EPA's lame excuse that they thought they had placed the ROD/EDD in the public library back in late 1985 or 1986. This was not an excuse even if true, however, since the critical court and government public comment and approval processes all occurred prior to September 1985. EPA had the audacity to assert in the press that perhaps some careless citizen misplaced the ROD/EDD in the public library! Library staff confirm that it was not received until EPA responded in 1987 to InPIRG's FOIA. The IG report acknowledged that there was no evidence to support this position by EPA, but failed to point out the critical evidence which InPIRG's Harrison had explained to the IG's Rickey months earlier which totally discredited EPA's "explanation."

This evidence, totally omitted by the IG report, included the facts, personally confirmed directly by Harrison, that EPA policy at the time was not only to place the ROD/EDD in the public library but to deposit it with EPA Headquarters in Washington, with the Environmental Law Institute in Washington, with the National Technical Information Service, and with local officials, none of whom had seen it as of the summer of 1987. The fact that EPA Headquarters in Washington didn't have a copy of the ROD/EDD in 1987 despite having allegedly signed it in 1984, was particularly noteworthy.

In desperation, citizens have turned to litigation to address the problem only to find EPA arguing incredible interpretations of the law, including the extreme position that during Superfund cleanups, EPA is above the law. EPA is taking the position, in an appeal currently pending in the 7th Circuit Court of Appeals in Chicago, in defense of a CERCLA citizen suit brought by concerned Bloomington residents attempting to force the agency to perform the required analysis of alternatives and environmental impacts, that even if they did violate the law in selecting the remedy, that citizens cannot challenge their action until they have finished implementing it (15 years of irreversible pollution later).

In addition to EPA refusing to enforce the law themselves, and arguing to the courts that they should be insulated from citizen enforcement via congressionally provided statutory citizen suit provisions, EPA has gone one unbelievable step further in Bloomington. After citizens complained to the local county prosecutor that the state RCRA statute was violated by the EPA/ Westinghouse plan to transport 20,000 tons of contaminated materials from out of town dumps into town to a non-permitted city owned facility for long term storage, a plan that was a thinly veiled scheme to allow Westinghouse to reimburse City legal fees in the guise of rent, EPA requested a federal court hearing.

The prosecutor had investigated and after finding InPIRG's allegations about the state RCRA violation to be well founded, and finding that the EPA, City and Westinghouse had no adequate justification for the plan, announced that any attempt to transport the contaminated material off-site to a non-permitted facility would be met by arrest of the violators and impoundment of the vehicles. So, what did the EPA argue in federal court regarding this planned state criminal enforcement action? Did EPA take action to support the state enforcement? Quite to the contrary, EPA went into federal court and asked that the state criminal prosecution be prohibited before it had begun. EPA argued that the hazardous chemicals might not be from regulated sources since EPA was ignorant of the source of the chemicals found at the dump. Therefore, EPA argued, there was no permit requirement to be violated since EPA could not determine that the chemicals came from regulated waste streams.!

Both InPIRG and the Prosecutor were prepared to testify that Westinghouse was a known and documented source for the chemicals, and the waste stream at Westinghouse included spent solvents used in degreasing operations, clearly a regulated hazardous waste under the state and federal RCRA programs. Neither the Prosecutor nor InPIRG were allowed to testify and the court, on the basis of expressed agreement of the parties to the settlement that no permit should be required, declared that there was no permit requirement and that any one, including the prosecutor, who attempted to interfere with the transportation of the waste to the non-permitted facility could be held in contempt.

The state, city, and county records had, for many years, contained memos confirming the source and nature of the chemicals found at the sites. EPA's ignorance was wilful or fraudulent, and their interference with a state RCRA criminal prosecution, apart from being unconstitutional, sets a troubling precedent and sends a disturbing message to other states about EPA's real position on state enforcement.

The issue remains unresolved. At this point, GAP's EPA Watch and InPIRG are requesting that not only should EPA's original misconduct be investigated and appropriate corrective measures taken, but that also the apparent initial coverup and later whitewash attempt by the EPA IG be investigated as well.

The failure of the EPA IG to conduct a legitimate investigation has left EPA with a feeling that they can proceed with impunity to ignore the law in conducting the Bloomington NPL sites cleanup. The IG's failure has left concerned citizens wondering where they can turn for effective agency oversight. GAP and InPIRG seek assistance in bringing appropriate pressure to bear on EPA IG to disclose the agency misconduct and force the agency to comply with the law, and conduct the necessary analysis of alternatives and environmental impacts.

Steps need to be taken to ensure that the remedy ultimately implemented can be justified by a proper record, including a written analysis of alternatives and impacts, as adequate in scope and protective of the environment. At the moment, the community is faced with an ongoing hazard from the contaminated sites excluded from the plan, and the prospect of immediate permitting of a dangerously wrong technology.

The State of Indiana, apparently with EPA's blessing, is rushing forward with issuance of a state RCRA permit, pending lawsuits and public opposition notwithstanding, which will begin the 15 year "cleanup" process. This 15 year plan, using the ill-conceived experimental incinerator, will pollute further an already victimized community and benefit only the polluter. The only thing this incinerator is capable of efficiently destroying is the Westinghouse name on the PCB capacitor labels evidencing their liability. Corrective action by the Congress must come quickly to avert irreparable harm to public health and the environment, as well as to prevent a massive bad investment and avoid setting national precedent that EPA is free to ignore the carefully designed Congressional safeguards in the Superfund, NEPA and RCRA statutes.