August 7, 2003


YSI presents next steps in investigation at public meeting—

Settlement in YSI lawsuit approved

The head of YSI Incorporated said last week that the company hopes to quickly begin remediating the contamination that has been found on its Brannum Lane property, now that a consent order settling a lawsuit between YSI and the state of Ohio has been approved.

“We want to get into remediation as quickly as we can and be a responsible corporate citizen,” Rick Omlor, the president and CEO of YSI, said at a public meeting on July 30 at the Bryan Community Center.

But it appears that the investigation and cleanup will still take time. The company official in charge of YSI’s investigation, Lisa Abel, said that YSI predicts it will complete its cleanup “somewhere between” 2005 and 2006. “Given all that we don’t know that’s as close as we can get” to naming an end date, she said.

Omlor also said that so far YSI has spent $4.8 million on its investigation, including $1 million this year. The final price tag will depend on the company’s work plan, though he said YSI would have a better idea of future costs — or “go-forward costs” — at the end of the year.

YSI held the meeting almost three weeks after Greene County Common Pleas Judge Stephen A. Wolaver approved on July 10 a consent order between the state and YSI, ordering the company to complete its investigation and cleanup of its Brannum Lane facility. The order also calls for YSI to investigate and clean up, if necessary, possible contamination at a building on High Street that the company used to own.

In addition, Judge Wolaver approved a $275,000 civil penalty the state levied against YSI for hazardous waste violations.

D. David Altman, the Cincinnati attorney representing two of YSI’s neighbors, declined to comment on the judge’s decision, saying that the ruling “might be subject to further action in court.” Altman would not elaborate.

He did say, however, that the court record speaks for itself. “A responsible newspaper that was doing a story on this would go to the record and print what they found there, and then the readers could decide for themselves about the consent decree,” he said in a phone interview.

Decision settles suit
The consent order and penalty settle a lawsuit the state filed in May 2002 against YSI after the company revealed that employees dumped hazardous wastes onto the ground at the Brannum Lane campus, contributing to the groundwater and soil contamination there. The state suit included nine counts of various violations, including charges of dumping and illegally transporting and storing hazardous waste at the High Street building.

Abel, YSI’s director of corporate social responsibility, has also said that the company knows that employees improperly disposed of hazardous wastes on the ground in the 1960s and ’70s.

Judge Wolaver approved the settlement despite objections from two of YSI’s neighbors, Fred Arment and Lisa Wolters, who had intervened in the case. The neighbors and another resident, Bob Acomb, filed a lawsuit in Common Pleas Court in June for damages they alleged have occurred on their properties because of contamination from YSI.

Arment and Wolters asked the judge at least twice for more time to comment on the consent order and to conduct more research, or discovery, for their case. Judge Wolaver turned down what appears to be the second request on July 15, five days after he signed the consent decree.

The neighbors also asked for a hearing on the “fairness and adequacy” of the consent order. The hearing, as well as an informal conference between the lawyers in the case, which both YSI and the neighbors’ attorneys requested, was not held.

A bailiff for Judge Wolaver said that the judge would not comment.

A review of the motions and memos submitted by the neighbors and YSI reveal a large gulf between the two sides about what has happened at YSI.

In court documents, the neighbors argued that YSI “unilaterally disrupted and, at times, denied discovery,” and refused to produce “highly relevant factual information,” including what the neighbors called a “secret ‘environmental audit’ ” from 2001. Suspending the discovery process also stopped the attempts of the neighbors’ attorneys to depose more people at YSI, the neighbors said.

The neighbors also said they needed more time to investigate YSI’s use of perfluorinated compounds, which the neighbors called “highly persistent and potentially dangerous.” The neighbors claimed that YSI initially denied using the compounds before acknowledging that the company had used them “at least as far back as 1979.”

The neighbors’ attorneys said that YSI was trying to do an “end run” around the process in a “thinly veiled attempt to avoid the true consequences of its years of improper environmental practices and illegal dumping of harmful chemicals.”

YSI argued in memos submitted to the court that the neighbors’ objections amounted to “nothing more than disagreement concerning litigation tactics and strategy” and that they had not shown why Judge Wolaver should have extended the comment period. The company also claimed that the neighbors’ attorneys were not able to find during discovery documents or facts that would have modified the consent order.

In addition, YSI argued that the neighbors were using the discovery process in this case for “negotiating leverage” in their tort case against the company. Therefore, the company also said, “documents previously identified” for the state case are “no longer relevant to this litigation.”

YSI said that the environmental audit was performed by two of its attorneys and “is not secret, but privileged and protected from disclosure under the attorney-client privilege.”

The company also called the neighbors’ concerns about perfluorinated compounds at YSI “a case of chemical mistaken identity.” The controversial compound perfluorinated is a “different compound from the fluorinet compounds used at YSI,” the company said.

What happened at the meeting
YSI called last week’s meeting to discuss the consent order and the next steps the company must now take. The first meeting YSI had held on its investigation since March, the gathering was sparsely attended, the audience consisting of about five local residents, including a Miami Township trustee; several YSI officials; and a couple of officials from the Ohio Environmental Protection Agency.

Ohio EPA and YSI officials have said that the details contained in the consent order will be incorporated into another order, an administrative order that the company has with the agency. That order also directs YSI to investigate and clean up the pollution. YSI “won’t have to start completely over,” Abel said.

The goal of both orders, Abel said, is the same, to investigate and remediate the contamination.

The administrative order was put into place a year ago after contaminated groundwater was found on YSI’s Brannum Lane facility. The consent order was hashed out by the Ohio EPA and YSI after the company revealed that employees had improperly disposed of hazardous wastes at YSI’s local campus.

Omlor emphasized that the consent order contains a fixed schedule of activities or dates that YSI must meet, which means the public will see “a lot of deliverables,” or publicly released activities or reports. According to a fact sheet distributed at the meeting, next month YSI will release two documents for public comment, a public participation plan and a sampling and analysis plan for the High Street property. Both are requirements included in the second state order.

Under the consent order, public involvement must include at least an open house or informal meeting during which people can talk to Ohio EPA and YSI officials “on a one-on-one basis”; fact sheets summarizing activities; public repositories for information on the investigation and cleanup; and opportunities for the public to review and comment on “critical documents.”

Abel said that it is “really important for the community to understand” the public participation plan. YSI is currently putting the plan together, she said. Abel said that the public should let the company know of things it wants included in the plan.

According to the fact sheet, YSI will accept public comments on other documents in the next six months, including an addendum to a report on contaminated soil areas at Brannum Lane, a plan to remediate contaminated soil and a report on a groundwater plume.

The company will also submit a report on the current conditions of its property as well as a plan to investigate the nature and extent of contamination at the Brannum Lane site caused by disposing hazardous wastes.

Abel said that YSI soon plans to run a pilot test of one available method used to treat contaminated soil. “We want to hone in on a technology that works before we commit to it,” she said.

According to Abel and Eric Riekert, the director of site assessment at BHE Environmental, YSI’s technical consultant, the company has identified one location on its property, the current shipping dock, as an area requiring cleanup. A second area, under the company’s east manufacturing building, will probably need to be remediated, but YSI needs to further verify the extent of the area’s pollution.

The consent order also requires YSI to investigate and remediate any contamination that may be found at 506 South High Street, which YSI once owned and then sold in 2001 to Patrick Ertel, who owns the publishing company Antique Power. According to a letter from the Ohio EPA to YSI notifying the company of hazardous waste violations, YSI transferred and stored hazardous wastes at the High Street site from 1995 to some time in 1999. YSI did this without the proper permits.

While YSI is required to pay a $275,000 penalty, $110,000 will go to the state’s hazardous waste cleanup fund. The rest, $165,000 will be used to fund supplemental environmental projects: $100,000 to the state’s remediation trust fund; $35,000 for at least one local environmental project; and $60,000 — half of which is credited toward the penalty — to fund a private technical assistance grant, which would be used to help local residents study and comment on YSI’s investigation and cleanup.

—Robert Mihalek