n Inexpensive natural remedy vs. costly recommendation
Superfund litigant Glen Ekberg has proposed a remedy to the U.S. Environmental Protection Agency (EPA) for an environmentally polluted area on Rockfords southeast side. He asks, Why pay for costly major, invasive surgery to cure a health problem when an inexpensive, natural remedy is available?
Ekberg claims his proposal could save about $6 million in cleaning up land named by the EPA as Area 7.
The money was collected in the form of voluntary payments from industries versus possible litigation, and a 9 percent rate restructuring of commercial and industrial business water bills.
Walt Watson, an accountant for the city, said in total, the city contributed $3.1 million to a $10-$12 million settlement to clean up four areas in the southeast Superfund site.
Ekberg has proposed to federal and state officials to plant at least two rows of hybrid poplar trees, cottonwood trees and alfalfa cover as a natural, aesthetic and inexpensive way to clean up harmful chemicals, which were dumped on the property during the 1950s and early 1960s. The natural method to remedy the problem is the focus of considerable current scientific research, known as phytoremediation.
EPA and scientific research at many educational institutions indicates certain plants absorb contaminants through their roots and are able to modify the chemical(s) into benign compounds.
Investigation of phytoremediation technologies includes EPAs own scientists and researchers in the Geology and Environmental Geosciences Department at Northern Illinois University (NIU). Ekbergs son, Dean, is studying for his Ph.D. at NIU and is specializing in Rockfords southeastern Superfund hydrogeology.
The Ekbergs and NIU scientists want to make Area 7 at Ekberg Park near Sandy Hollow Road an outdoor classroom and research facility. However, Glen Ekberg said government officials, thus far, have been resistant to his proposal.
Instead, the EPA has proposed installing machinery and a series of trenches that may spread the contamination deeper into the ground at a cost of $6 million. The proposed horizontal and vertical trenches may penetrate a layer of clay that is about 20 to 30 feet below ground.
Dean Ekberg said the clay layer has halted the harmful liquids from seeping deeper into the soil and allowed the plants to naturally catabolize the chemicals. Both Ekbergs hope EPA officials accept their proposal to naturally clean up the area and provide more wildlife habitat, while saving taxpayers millions of dollars.
Glen Ekberg said when Area 7 was analyzed in 1995, pollution for a specific volatile organic compound (VOC) was 8,000 parts per billion (micrograms per liter). The specific VOC was 1,1,1-trichloroethane (TCA).
The Ekbergs said the TCA level dropped to 2,500 parts per billion by last year, due to the existing alfalfa cover, and cottonwood, poplar and box elder trees. Accordingly, the Ekbergs want to plant two more rows of poplar trees farther up the pollution flow to reduce these levels even further.
James Meason, Ekbergs attorney, said they met April 29 with representatives from the U.S. Justice Department, and state and U.S. EPA officials to discuss Eckbergs natural clean-up proposal. Meason said they also discussed access to the site to allow EPA officials to conduct new tests on groundwater and soil.
According to Meason, the new tests are needed to give officials an update on what has happened to the liquid chemicals that were dumped on the property. Dean Ekberg said the new tests will also quantify the extent plants and trees on the property have naturally remedied the VOCs that were originally present in the liquids.
When asked why they didnt propose their natural remedy idea sooner, the Ekbergs said they just learned about it last summer. The term phytoremediation wasnt coined until 1991, and the EPA didnt publish extensively on the issue until 2000.
Area 7 history
Glen Ekberg was the owner of the land where Ekberg Park is currently located. He donated the land to the Rockford Park District in 1986, and is still the owner of adjacent property. He purchased the land in 1964 from George Johnson.
In a deposition by former employee of Roto-Rooter, Shorty Thompson, he alleged the land was a toxic waste dump site in the 1950s. Thompson alleged he dumped the chemicals with the consent of Johnson, who is now deceased. According to Thompson, he and Johnson thought the material was septic pumpings, and Ekberg was told the same, but discontinued the practice.
Ekbergs land was included in the southeast Rockford Superfund controversy in the 1990s, in which many businesses in the area agreed to pay the EPA via the city rather than face threatened litigation. Ronald Schultz, legal director for Rockford, said he was the primary negotiator of the consent decrees, which made settlements possible.
Meason, a former hearing officer for the city, said many of the businesses that agreed to settle were bullied by Rockford to pay more than was warranted or necessary because officials didnt notify parties they may be eligible to settle for as little as $1.
Schultz responded by saying settlements were fully explained to all major and minor potentially responsible parties at a series of public meetings.
According to Schultz, the approximately 10 major parties each settled for between $600,000 to $700,000. The approximately 100 minor parties each settled for about $2,000 to $3,000.
Schultz said Ekberg was a major party who refused a $25,000 settlement sometime between 1997 and 1998.
Ekberg responded to Schultzs assertion by saying: I made an offer to them for $20,000, but Ron Schultz rejected it, sometime between 1995 and 1996.
In addition to Ekberg, some other major parties in the settlement were Sundstrand, Rockford Products, Borg Warner, Sun-Tech and Woodward Governor.
Glen Ekberg sought a settlement in 1998. However, his proposition was rejected by Schultz in a July 9, 1998, letter.
Schultz wrote: We have been reviewing the voluntary pledge forms for Southeast Rockford and found a pledge from Circle Boring [Glen Ekbergs company]. … Because you are involved in the group of persons the Department of Justice has named as persons with liability, we must decline the offer of Circle Boring to participate in the voluntary group of Covenant Beneficiaries, Schultz wrote.
Schultz explained that the settlement described in the letter was for minor parties, not major parties, such as Ekberg.
Mary Reed, trial attorney with the U.S. Department of Justice, who is working for the U.S. EPA, said April 27 she couldnt discuss pending litigation.
Jury trial denied
As to Ekbergs not being allowed a jury trial, Meason said Federal District Court Judge Phillip Reinhard could have allowed Ekberg a jury trial but elected to deny him that opportunity. Ekberg received a decision on his jury demand from Reinhard April 12.
In his decision, Reinhard wrote: Suits at common law include actions that are analogous to suits that would have been brought in the law courts rather than courts of equity or admiralty prior to the Amendments adoption. See Tull, 481 U.S. at 417. Actions analogous to equity actions do not require a jury trial by jury. Id.
The Amendment Reinhard refers to is the 7th Amendment, which guarantees the right to trial by jury. Reinhard also cited four cases as precedents. Those cases were the U.S. versus corporations. Ekberg is being sued personally by the EPA.
Reinhard was telephoned to respond to Measons assertion that Ekberg could have been awarded a jury trial by Reinhard.
However, Reinhard, who responded through his assistant, said he isnt able to comment and referred other questions to his ruling.
To read more about natural remedies for pollution control, visit the EPAs Web site: http://www.epa.gov/ord/NRMRL/lrpcd/reb/introphy.htm. To read more about Rockfords southeast Superfund site ,visit: http://www.epa.state.il.us/community-relations/fact-sheet/southeast-rockford/index.ht
Editor & Publisher Frank Schier contributed to this article.