Summary of Consent Decree Problems
It has been clearly shown that the NEPA and Superfund statutes specifically required, prior to the entry of the decree in 1985, studies of environmental impacts and feasibility of alternatives and public review thereof prior to selection and implementation of a Superfund site remedial cleanup plan such as that incorporated in decree. However, even had this law not been clear prior to entry of the decree in 1985, the Superfund statute was amended in 1986 to specifically require and to leave no doubt that an RI/FS must be performed at every Superfund NPL site.
The amendment emphasized the mandatory nature of the RI/FS requirement for all sites and further required that such studies be commenced promptly in accordance with a mandatory timetable. Unlike the cleanup standards section added by the same amendment which provided an exemption (grandfather clause) for some older sites, no such exemption was provided from this RI/FS requirement for any sites, including enforcement sites and sites where litigation or other proceedings had begun before the 1986 effective date of the amendment. . .
Further, the City and County officials have now publicly called for such studies of alternative PCB cleanup methods and have publicly criticized and rejected the proposed MSW fueled incinerator as not being the best available technology and likely not even being an acceptably safe method.
In addition, public and official confidence in the proposal has reached an all time low as a result of Westinghouse failing to follow through on its promises to conduct tests on a prototype, and as a result of the discovery that EPA withheld the actual Record of Decision not only from the public but also from the court during the review and comment period, and failed to inform the public or the court that EPA had actually planned and begun work on the required RI/FS studies for the Bloomington sites, including Lemon Lane, only to cancel the planned studies during secret negotiations with Westinghouse.
New PCB disposal technologies are now available which are safer and quicker to use than the proposed MSW fueled incinerator, and we now know that the proposed incinerator threatens the endangered Bald Eagle.
Further, it is now stated by the parties that the incinerator will create a volume of hazardous waste ash as large or larger than the volume of hazardous waste at the sites to be treated and that this will require an unanticipated hazardous waste landfill in Monroe County.
It has also become apparent that the lead attorneys for Westinghouse, the City of Bloomington and EPA who negotiated the proposed decree were involved with each other and other waste firms simultaneous to and subsequent to the decree negotiations which creates the appearance of a conflict of interest.
The Westinghouse PCB Consent Decree was negotiated via procedures which violated state and federal law. The EPA selected the remedy incorporated into the decree via a process that violated federal statutes. As a result, the consent of the City, the consent of the County, and the consent of the EPA to this decree are all invalid.
The decree was approved by the Court only as a result of fraudulent representations and omissions by the parties and their attorneys, and the decree itself is in direct conflict with federal law. As a result the decree is void.
The decree as it stands has not been and will not be accepted by the Bloomington community for these and other good reasons. There is massive and almost unanimous opposition to the decree. The community has lost confidence in the ability of this agreement, and the parties to it, to protect the public health and environment as result of the fraud, violations of law, and the appearance of conflicts of interest and collusion to protect the liability of Westinghouse and the City, and possibly to protect the financial interests of others.
Further, as a result of changes in circumstances, it is now clear that everyone, including the parties, are open to exploring technological alternatives to the current cleanup plan and most believe the current experimental incinerator proposal is not the best available technology as previously thought, may not be feasible at all, and could cause much greater health risks than previously understood.
8/10/96
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