Comments on Proposed Plan
The residents expressed several concerns and questions regarding the proposed settlement. They broke down into several main issues:
- The residents shouldn't have to pay any of the costs of hookup.
- The settlement refers to completing the hookups by 2005. Will it really take that long? When will the hookups occur?
- Will all homes be hooked up to the public water supply, or only those with known contamination?
- Will there be further steps taken to protect the residents and the environment?
- Where does the 5 parts per billion drinking water standard for TCE and PCE come from?
- Why should any portion of the federal funds granted to the County or the Water Commission loan program be used to benefit the polluters?
- Why does paragraph 14(a)(i)(B) say "will agree to arrange for financing" instead of "will arrange for financing"?
- The language of paragraphs 50 and 51 unfairly cuts off the rights of the residents to sue the PRPs.
- What happens if the money runs out before the hookups and well sealing are completed?
1. The residents shouldn't have to pay any of the costs of hookup.
The U.S. EPA does not have the legal authority to immediately require the PRPs to pay all the costs of hookup. Although the levels of contamination are significant, they are not high enough to trigger U.S. EPA's immediate response authorities where it could require immediate action. Instead, U.S. EPA would have to go through a remedy selection and enforcement process that could likely take up to another year before U.S. EPA could require the PRPs to pay for the hookups. Even then, the PRPs might be able to delay the requirements further in court.
The PRP Group has agreed to pay $4.275 million, which is the estimated amount of funding needed to physically hook up the effected residents. (This estimate was developed jointly by U.S. EPA, Illinois EPA, Downers Grove, DuPage County and the PRPs based on the best information available at the time of the negotiations.) The PRPs are not covering the Downers Grove service fee, which is a monthly charge assessed against all new customers on its system to recapture its past investment in infrastructure. Downers Grove will still need to set and justify this service fee for non-residents through a public process.
This result is a compromise reached to provide as much funding as possible as quickly as possible to relieve the burden on residents. A year ago, the residents were looking at paying all costs of hookup out of their own pockets. Now we expect that they will not be required to pay any of the physical construction costs, and will only be responsible for the service fee and their monthly water bills. In addition, U.S. EPA, Downers Grove and DuPage County are exploring funding sources that may be available to pick up some or even all of the service fee. U.S. EPA's goal is to be sure as little of the cost of the project as possible falls on the residents.
2. The settlement refers to completing the hookups by 2005. Will it really take that long? When will the hookups occur?
DuPage County expects to move forward with the majority of the hookups during this construction season. Residents in the area where water mains must first be installed and some residents in less contaminated areas may not be hooked up until next year. In projects of this magnitude there are typically a few residences that present particular difficulties or that are slow to cooperate. By extending the date in the settlement to 2005, even though we expect that virtually all homes will be hooked up within a year, we ensure that even these delayed residences remain eligible to have their hookup costs paid under the settlement.
3. Will all homes be hooked up to the public water supply, or only those with known contamination?
All homes will be hooked up, and we expect DuPage County to pass an ordinance requiring residents to hookup to the public water supply and seal their wells. If some residents continue to use their wells, they are likely to draw further contamination to those wells. In addition, they may alter the flow of groundwater in ways that make it more difficult to complete the future investigation and assessment of groundwater contamination.
4. Will there be further steps taken to protect the residents and the environment?
Yes, this is just the first step in the Superfund process. The hookups will eliminate the current exposure to contaminated drinking water. Two other steps in the Superfund process will follow.
First, there will be a detailed investigation of the potential source areas in the Ellsworth Industrial Park. Any remaining contamination that is still feeding into the groundwater must be located, evaluated and appropriately addressed.
Second, there will be an investigation and evaluation of the nature and extent of the existing groundwater contamination. This step will make sure that contamination that poses a threat to wells further downgradient or that may produce dangerous vapors will be addressed. Community input and comment will be solicited at all stages of the Superfund investigation and cleanup process.
5. Where does the 5 parts per billion drinking water standard for TCE and PCE come from?
That standard was set by U.S. EPA as a Maximum Contaminant Level permitted for public drinking water systems. It is set at a level intended to protect the public from short- and long-term effects of drinking water contaminants.
6. Why should any portion of the federal funds granted to the County or the Water Commission loan program be used to benefit the polluters?
It is important to remember that the only real "benefit" that the PRPs get is that their $4.275 million may go further. The PRPs are nonetheless providing substantial funding for the public water supply hookups and well sealing that would otherwise likely have to be paid by individual residents. The PRPs will also likely be asked to pay significant further amounts for the remaining Superfund activities related to the Site, including those described in #4 above.
U.S. EPA's goal here has been to find as many sources of funding as possible. The State of Illinois is providing a grant to pay for 65% of the cost of the water main for North Belmont Park. DuPage County intends to apply part of its $431,000 federal grant toward some of the construction costs, which should help assure that the PRPs' $4.275 million covers all the rest of the construction costs. The DuPage Water Commission has been willing to make its low-interest loan program available to residents through the Village of Downers Grove. By allowing the PRPs, in effect, to make the loan payments on behalf of the residents, it allows those dollars to go farther. The Water Commission will be repaid in full, and the funds will have been used to benefit public health.
One of the comments noted potentially unclear language in Paragraph 14.b of the proposed settlement that will be corrected. The language was intended to provide that the PRPs' payments could be reduced below $4.275 million if the grant funds provided by DuPage County and the State reduced the remaining construction costs below that level. If interpreted a different way, the proposed language could be read to say that the $4.275 million figure is automatically reduced by the amount of the County grant funds applied to the project. This language will be clarified.
7. Why does paragraph 14(a)(i)(B) say "will agree to arrange for financing" instead of "will arrange for financing"?
The actual arrangement will be contained in the agreement with Downers Grove and DuPage County.
8. The language of paragraphs 50 and 51 unfairly cuts off the rights of the residents to sue the PRPs.
U.S. EPA believes that it is fair and appropriate to characterize the scope of the agreement broadly to protect the settling PRPs from contribution lawsuits brought by other non-participating PRPs. These PRPs have, after all, voluntarily agreed to pay for cleanup activities on a much more expedited basis that U.S. EPA could force them to. They are providing the funds necessary to complete construction activities to hook all residents up to the Downers Grove public drinking water system.
As the article attached by counsel for some of the residents indicates, a lawsuit brought by residents would not be a contribution lawsuit, and a Court will look beyond the language of paragraph 50 to see if some or all of the relief sought by the residents is already covered by the settlement.
While counsel for some of the residents proposes some additional language that might make it easier for him to sue the PRPs, it is not typically U.S. EPA's job to encourage private litigation. There is nothing in the settlement that cuts off the rights of the residents to sue to recover damages and other relief from the PRPs. The terms of the settlement are clear that the PRPs will provide the funding necessary to complete the physical hookups to the public water supply system, thereby eliminating current exposures to contaminated drinking water. The terms are equally clear that the settlement does not cover the service fees and monthly bills due to Downers Grove as a condition of water service, does not cover out-of-pocket expenses already incurred by the residents related to the groundwater contamination, and does not release the PRPs from any liability related to those expenses.
9. What happens if the money runs out before the hookups and well sealing are completed?
U.S. EPA expects that the State and County grant funds and the PRP payments will cover all future costs of physically connecting residents to the public water system.
U.S. EPA also expects that it will begin sampling this summer at other commercial and industrial properties in and around the Ellsworth Industrial Park. That sampling should be completed over the next few months. U.S. EPA expects that this sampling will identify additional PRPs. Because the hookup construction funds will be drawn down only as they are needed, these additional PRPs will be identified and put on notice well before $4.275 million is borrowed to finance hookups. Thus, U.S. EPA will have a significant period of time in which to negotiate with these parties to cover any potential shortfall. U.S. EPA expects that the additional PRPs will have a strong incentive to cooperate in order to reduce their exposure to potential contribution claims from members of the PRP Group.
As a last resort, in the unlikely event all of these efforts fail or become too time-consuming, DuPage County has agreed to pay for any shortfall amount up to $400,000. At present under the County's estimated "worst case" scenario the only costs that might not be covered by the existing funding sources are a portion of the County's contingency. This additional $400,000 commitment should be more than adequate to cover any shortfall even under a worst case scenario.