February 15, 1996
MEMORANDUM
Subject: Bloomington RI/FS
To: Bob Martin
From: William Sanjour
The complainants in the Bloomington ease have charged that EPA had agreed to a consent decree with Westinghouse in 1984 without having conducted an RI/FS contrary to law and EPA procedures (see my memos of August 21, 1995 and September 7, 1995). There complaint is supported by several facts:
I had a lengthy conversation on this issue with Charles Openchowski of OGC on October 4, 1995. He said that there was no requirement in 1983-4 in the NCP to do an RI/FS for enforcement lead sites. He did concede that EPA was required to do the functional equivalent of an RI/FS and did indeed do so with documents called EE/CAs (Engineering Evaluation/Cost Analysis). The EE/CAs were submitted with the consent decree in 1984. The briefs filed with the consent decree specifically referred to them. Although he doesn't remember the substance of the EE/CAs he specifically remembers seeing them as part of the documentation accompanying the consent decree. He remembers this because EE/CA struck him as a funny name.Dan Hopkins, Regional Project Manager of the Bloomington site told me there was no RI/FS and none was required but the equivalence of an RI/FS was performed but thee region has been unable to find one (see my memo of October 5, 1995). FOlA request to region 5 was unable to produce an RI/FS or its functional equivalence. Instead the region gathered all the documents it could find and called it the "equivalent" of an RI/FS (see my memo of October 5, 1995). A request to OERR and OGC for the RI/FS or the functional equivalent met with no initial response (see my memo of September 7, 1995). Mr. Openchowski explained that once the consent decree was filed with the court these documents were open to public inspection and comment. There was a comment that the agency had failed to comply with NEPA by not issuing an Environmental Impact Statement (EIS) but the court ruled that the agency had issued the equivalent of an EIS. Since the consent decree is still in effect, all the documentation should still be on file with the court. He also believed that the EE/CAs should be available from both headquarters and the region, although both my and the complainants experience indicates the contrary.
Shortly after speaking to Mr. Openchowski, I conveyed all this to Mr. Michael Baker, one of the complainants and suggested that he search the court records to see if he can find these EE/CAs. Apparently he didn't get around to doing this until February 2nd of this year. He and several others searched the court records and were unable to come up with any EE/CAs (see the attached sworn statement).
Conclusions and recommendations
Mr. Openchowski told me that after the public comments were reviewed by the judge he submitted the consent decree to a three part test; was it fair, reasonable and in the public interest. After review, the judge determined that it was, and this, in Mr. Openchowski's mind I believe, is the clincher. Yet subsequent events have shown that the decree was not reasonable, and not in the public interest and as a result probably not fair.
That it was not reasonable is illustrated in my memorandum of September 7, 1995, where several EPA incinerator experts told me that the proposed incinerator, an experimental design to burn both hazardous waste and garbage, was of dubious feasibility and utility.
That it was not in the public interest (as explained to me by Mr. Hopkins in my memo of October 5,1995) is shown by the fact that between 1990 and 1993, responding to the concerns of the public, the Indiana legislature passed a number of laws throwing up road blocks to the incinerator remedy. EPA was then faced with the decision of either arguing that the State of Indiana was in contempt of court or trying to find a creative solution which did not force the incinerator down the throats of an unwilling community. EPA therefore convinced Westinghouse to modify the consent decree to come up with an alternative solution.
Furthermore, at EPA's urging, the court blocked all attempts to allow citizens groups to be interveners. For these reasons I suggest that just because the court gave EPA a clean bill of health it does not follow that we should necessarily do so.
There is also a problem of the inconsistent explanations of the requirement for a RI/FS by three different EPA officials. Sandra Gardebring, head of enforcement at region 5 until 1983, said that an RI/FS was always required without exception. Mr. Hopkins explained that although these events predated him, his understanding is that because this case had been in litigation it didn't follow the customary RI/FS path. The only discussion of a rationale for selecting the incinerator which he was aware of was in a four page Enforcement Decision Document and he does not know where the document is. And, as explained earlier, Mr. Openchowski is certain that the functional equivalent requirement was met by the EE/CAs, which no one can find.
There is also concern about the fact that, in the negotiations for the consent decree, Westinghouse was represented by former EPA General Counsel Jody Bernstein and that the EPA representative, Barbara Magel, left EPA after the consent decree was signed to work for the attorney who represented the City of Bloomington which along with Westinghouse, was the Potentiality Responsible Party.
Considering the efforts that the complainants have made to find "the functional equivalent of an RI/FS" and the fact that no such document can be produced by EPA or found in the court records and the fact that the court and EPA litigators may not have been not too friendly to the public interest, we should seriously consider the possibility that the "functional equivalence" was never performed. In any event, it is my recommendation that EPA should either produce documentation of the functional equivalence of an ElS or perform an RI/FS, the court's judgement not withstanding. I also recommend a legal review of the issue of whether the consent decree is valid if the functional equivalence had not been performed.
attachment
cc: Tim Fields