HAMMOND — U.S. District Chief Judge Philip Simon heard arguments Tuesday to help him decide whether people living in the lead-and-arsenic polluted Superfund site in East Chicago can formally intervene in EPA cleanup decisions.
Attorneys representing residents have accused the EPA of minimizing health concerns and cleaning up a limited number of properties despite knowing for decades about widespread contamination.
Residents say they didn't realize the extent of contamination until summer 2016, when city officials announced families at the West Calumet Housing Complex had to relocate due to the severe contamination and that they would demolish the site.
EPA in 2014 approved a consent decree that secured $26 million from Atlantic Richfield and DuPont for a cleanup in zones 1 and 3 of the USS Lead Superfund site. Zone 2 — the middle part of the neighborhood — was left out of the consent decree.
Costs have since nearly quadrupled. Residents' attorneys argued EPA has repeatedly modified the consent decree, while at the same time arguing in court the case is closed and statute prohibits intervention.
Simon, the judge who signed off on the 2014 consent decree, said Tuesday that EPA’s cleanup does indeed appear to be a “totally different landscape” that what was presented to him back then — with the West Calumet Housing Complex now vacated and East Chicago eying demolition.
'Years left of work'
Emily Gilman, of law firm Goldberg Kohn representing residents pro bono, said EPA has made it clear they plan to modify its cleanup plan for Zone 1, the public housing complex.
“There are years left of work to do,” Gilman said.
Simon suggested it seemed inevitable EPA would have to return, eventually, to the courts for approval because federal Superfund statute requires the agency to do so in the cases of substantial cleanup amendments.
And that move would open up the possibility for residents to intervene then, he said.
"Let's say you do something they don't like, they would have a right, at that time, to seek intervention?" Simon said, directed at EPA attorney Annette Lang.
Lang replied yes, while maintaining she believes EPA is adequately representing residents' interests in the case.
"...And we'll be right back here again (with another motion to intervene)," Simon said.
EPA: Intervention would cause unnecessary delay
Lang also argued Tuesday the motion was filed too late and that granting them intervener status would “unnecessary delay” ongoing time-critical cleanups at the site. According to EPA, nearly 290 properties have been remediated since summer 2016. Another 718 require remediation.
Simon appeared perplexed at that argument, saying, “Don’t you feel silly, having found out about this problem (in the 1980s), and your concern is that citizens are delaying this? That’s amazing,” Simon said.
“You all have really known about this … yet your litigation position is that citizen intervention is slowing the process down. That’s a little hard to swallow," he added.
Last May, U.S. District Magistrate Judge Paul Cherry denied residents’ request to intervene in the case, basing his decision mainly on the fact that the filing was untimely and that attorneys should have tried to intervene years ago.
Residents successfully appealed Cherry's decision, leading to Tuesday’s oral arguments.
Lang said Tuesday EPA has “adequately represented” residents’ interests in cleanup negotiations with polluters, having held several public hearings and community meetings while also hiring two outreach coordinators and implementing indoor dust and paint sampling at select homes.
Weeks before Tuesday’s oral arguments, EPA issued two unilateral administrative orders to companies to clean up soil in Zone 2 and indoor dust. However, residents' attorney argue EPA has omitted indoor dust cleanups in hundreds of homes.
Simon said Tuesday he would issue a decision "quickly" but did not provide a timeline.