Suit over Vertac not finished yet

Judge wants ‘loose ends’ tied up

— A 32-year-old lawsuit over cleanup costs at the former Vertac site in Jacksonville inched closer to an end on Friday, with a federal judge holding off his final approval of a proposed settlement until attorneys tie up some “loose ends,” which he predicted could take until March.

“Before I can approve the agreement, I need all the particulars narrowed down,” U.S. District Judge D. Price Marshall Jr. told 10 attorneys and a Jacksonville woman who gathered Friday afternoon in his Little Rock courtroom.

The woman, Rebecca Brooks of 1712 Hill Road, has lived for 41 years in a housejust outside the southeastern edge of the former Superfund site, which occupies roughly 93 acres west of Marshall Road. She is the only person to file an objection with the court to the proposed settlement of the Environmental Protection Agency’s 1980 lawsuit against Vertac and other chemical companies by a Dec. 7 deadline.

Herbicides were manufactured on the site for more than four decades, leaving behind toxic waste that included dioxin, a carcinogen. In 2005, a previous judge ordered Hercules Inc. of Delaware, which sold the property to Vertac in 1976, to pay nearly $120 million of the cleanup costs and declared the former Uniroyal Chemi-cal Corp. jointly responsible for about $3 million of the total.

Both companies paid up in 2007, after the U.S. Supreme Court silenced all appeals. Since then, Hercules has continued monitoring and maintaining the grounds under a 1982 consent decree, revised in 1984, that is set to expire in the next three years.

The pending agreement is between Hercules; Lee Thalheimer, a court-appointed receiver for the property that Vertac abandoned in 1986; and the EPA and its state counterpart, the Department of Environmental Quality.

It would end court supervision of the case but would ensure that East Bay Realty Services Inc., a subsidiary of Hercules, continue treating groundwater and monitoring the site until the regulatory agencies determine - if they ever do - that no environment hazard remains.

Touching on an issue that Marshall expressed some concern about - ensuring that proper notice of the impending settlement has been provided to the public - Brooks said she didn’t see one of two public notices that Hercules Inc. ran in the Arkansas Democrat-Gazette’s classified section last month, “and I follow this very closely.”

She said she found out about the proposed settlement through a Nov. 19 article in the newspaper that provided instructions for filing written objections.

“It’s not that I’m opposed to what they’re trying to do,” Brooks told the judge Friday. “I just think that Tract C, on the west side of Marshall Road, needs some serious consideration.”

That is the part of the acreage that sits closest to her home and two other houses in Jacksonville’s Hill Addition.

Brooks said it was her understanding that the consent decree permanently protected the area, which contains underground wells, from ever being disturbed. She said she fears that the settlement agreement would permit digging - albeit only for restricted forms of development and with permission of regulatory agencies - in that area.

“We’re talking not a quarter of a mile from my back door to the wells,” Brooks said, pointing out on a map where she lives in relation to the site.

She said that water from the area where the wells are flows downhill in a southeasterly direction, and her house is down the hill and south of the area. She said she is concerned that any alteration of the ground could send the potentially contaminated water in her direction.

N.M. “Mac” Norton, a Little Rock attorney for Hercules, noted that the city of Jacksonville has zoned that area for commercial and industrial use, making Brooks’ concernmore of a “zoning issue.” He also said he isn’t aware of any current plans for developing that particular area, the corner of which lies in a flood zone, “which would further narrow the possibility of anything being done there.”

Marshall said he could find no documentation promising that the area above Brooks’ house was permanently restricted from development, but he said that if she could find some documentation by Dec. 31, he would reconsider his decision to deny her request to halt or alter the agreement.

Attorneys in the case told the judge that they, also, weren’t aware of any permanent protections guaranteed for that area. But they and Marshall noted that the consent decree is set to expire in 2014 or 2016 anyway, and that protections in the decree could only be extended through the settlement agreement, which wouldextend them indefinitely.

“To me, one of the benefits of the settlement agreement is that it takes that monitoring agreement and extends it into perpetuity,” Marshall told Brooks.

The “loose ends” that the judge and attorneys agreed need to be tied up include clarifying boundaries on a map, ensuring that legal descriptions are correct and getting the approval of the Jacksonville City Council after the issue is fully aired over three meetings in January and February.

Marshall said the latter “is important to allow the process to unfold and the people to be heard.”

Jacksonville City Attorney Bob Bamburg told the judge that the proposed agreement will be announced at the city’s Jan. 3 meeting, giving residents the opportunity to show up in protest at the two meetings to follow.

Marshall thanked Brooks for attending the hearing, telling her, “It’s easier not to come.”

Marshall said that although attorneys had once hoped he could approve the settlement Wednesday, “I’m uncomfortable with giving even preliminary approval of a plan that, even as I’m approving it, is changing.” He was referring to conflicting nomenclature of zones and a murky map, and ordered attorneys to file a larger, easier-to-digest map by Feb. 28.

“I think it’s important that the public know what we’re doing,” Marshall said. “I do want to press forward, but not at the expense of hearing from someone who wants to speak, whether it be at a City Council meeting or here.”

Marshall granted Thalheimer’s request to donate the old Vertac records to the University of Arkansas at LittleRock to preserve as historical documents, agreeing that personnel records should first be removed and destroyed.

“This case is in large part a matter of history now rather than active litigation,” he noted.

Arkansas, Pages 9 on 12/20/2012

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