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33 MEMORANDUM DATE: May 6, 1997 TO: Michael J. Mornson, City Manager FROM: Kim Moore - Sykes, Management Assistant (/ ITEM: Schnitzer Issues v Attached is a copy of a letter recently sent to Peder Larson, MPCA Commissioner, which is attempting to put the de minimus settlement process on hold until information uncovered by Common Counsel can be assessed and acted on by the State. As you will read, there are several issues that the Group is asking Mr. Larson to review, especially the MPCA's responsible party identification process. It is hoped that the Commissioner will at least be persuaded to lower the clean -up level, (thus mitigating the PRP's financial liability) if he cannot be persuaded that the current group of PRP's were identified erroneously. Another issue that the PRP Group is reviewing deals with a recent ruling where a judge found in favor of the defendant in an action to determine financial responsibility for the clean -up of a listed site. The defendant stated that they were not responsible for the contamination of the site because analysis showed the chemical composition of the wood preservative they used was different from the wood preservative found at the site. Introduction of the "causation question" by Judge Robert Keeton's ruling is serving as an opportunity for defense attorneys to utilize the "burden of proof' mechanisms at the liability stage as well as the allocation stage of the cost recovery suits. This is especially pertinent to our involvement with the Schnitzer site because the MPCA has said that they are not interested in knowing what specifically caused the lead contamination; they understand from soil samples they pulled from the site that there is lead contamination that was "probably" from batteries, (PEER Engineering report). In a conflicting report from COGNIS, a testing and remediation firm, indicated that the lead contamination was mostly from lead paint used on automobiles, porcelain chips from sinks, leaded glass and leaded automobile fluids. It is interesting that while the University had hired COGNIS to analyze the soil at the Schnitzer site, their report is not referred to in any of the MPCA's documentation. The second document is an invoice for legal and technical costs. The attached letter describes how this current assessment was determined. If a settlement occurs, whatever amount is remaining from our assessment will be refunded to the City.