| Join the Blue Eco Legal Council and Receive our e-Newsletter |
Complaint Filed 12 May 2006 |
|
| HOME
IS CONTAINMENT PROTECTIVE OF HUMAN HEALTH AND THE ENVIRONMENT? WHY IS BLUFF EROSION SUCH A THREAT? WHAT IS THE CURRENT LEGAL STATUS OF THE CLEANUP? WHO IS STEVEN POLLACK AND HOW CAN YOU HELP?
|
UNITED
STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF ILLINOIS _____________________________________ Steven Pollack,
)
)
Plaintiff,
)
) Case Number: 06C 2659
v.
)
Assigned Judge: Judge Manning
) Designated Magistrate Judge: Denlow United
States Department of Defense,
) Donald Rumsfeld
as Secretary,
) COMPLAINT
FOR
DECLARATORY
United
States Department of the Army,)
AND INJUNCTIVE RELIEF Francis Harvey
as Secretary,
)
United
States Department of the Navy,)
ADMINISTRATIVE PROCEDURE and,
Donald Winter as Secretary
) ACT AND CERCLA CASE
) _____________Defendants._____________) 1.
This
complaint challenges the transfer by deed, without regulatory closure,
of Landfill 6 & 7 in 1993, and the adjacent federal property
contaminated by Landfill 6 & 7 in 1993 and 2005, at the former 2. The Commercial Club of Chicago, concerned with the need for a military garrison, was motivated by the Haymarket Riot in 1886 to arrange for the donation of 632 acres of land to the Federal Government for this purpose. Troops arrived in November 1887 to what was initially called Camp Highwood. A year later, Camp Highwood was renamed Fort Sheridan. Troops stationed at Fort Sheridan were used in 1894 to quell labor unrest during the Pullman Strike. 3. The geological setting of Fort Sheridan is tableland above a 70-foot high erodible bluff in an area cut by deep ravines. The bluff overlooks Lake Michigan and the ravines create an open face in the bluff at the beach’s edge. Seven such ravines cut across the base, and over the years the Army filled them in with waste generated by operations. Landfill 6 & 7 is in what was formerly Wells Ravine which is bisected by a road. Landfill 7 is the eastern portion of the former ravine and sits next to the lake. Apparently, a decision was made to place the most hazardous waste in the Wells Ravine because Landfill 6 & 7 is the only site at Fort Sheridan that the US EPA considers to be “Superfund National Priorities List (NPL)-caliber.” The Army never operated the landfill by using what could be considered environmentally sound methods. No high-density plastic containment liner was placed between the ravine and the waste. Landfill 6 & 7 might be better described as a dump rather than a landfill. This distinction is important because it differentiates the practices of two eras and informs decision makers of the true nature of the facility. The bluff within which Landfill 6 & 7 sits is eroding at a long-term rate of 10 inches per year. This long-term average is the product of regular episodic failures between several feet to twenty-foot events. 4. Fort Sheridan was closed under the Base Closure and Realignment Act in the first round of base closures in 1989. This triggered a requirement for the Army to assess environmental issues at the base, under CERCLA, prior to redevelopment. Executive Order 12580 transferred oversight and implementation of the CERCLA statutes and regulations from US EPA to DOD. In 17 years the Army has failed to choose a final remedy to permanently close Landfill 6 & 7. 5. In 1996, because Landfill 6 & 7 had been dispensing 14,000 gallons of leachate per day into Lake Michigan , the leachate being above state environmental effluent standards, and because the landfill was poisoning Navy personnel in the adjacent housing with carcinogenic vinyl chloride gas, the Army chose to implement an interim removal action with the concurrence of US EPA and IEPA. Removal is a misnomer used to describe various remedies, not always removal-in-fact, necessitated by uncontrolled releases of hazardous substances. The removal action is separate from the final remedial action required under BRAC, CERCLA, and deed transfer covenant and warranty requirements. The Army chose to construct a $16 million cap for the removal action even though other means could have been used on a temporary basis. 6.
In
the feasibility study of alternatives, the Army skewed the analysis by
not looking at bluff failure under the containment option.
The Army did, however, go into great detail regarding the risks
in the excavation alternative. Excavation
would cost $36 million if the waste were similar to regular municipal
solid waste. If during excavation, however, the waste were determined to
be hazardous, a likely scenario and the IEPA presumption given the types
of materials reported from a search of the historical records, then the
waste would have to be placed in a hazardous waste landfill at a cost of
$136 million. Hazardous
waste landfills are generally not sited in geologically unstable areas
next to major sources of fresh water supplies like 7. Erosion is an unforgiving force affecting the Chicago north shore bluffs that cannot be stopped, yet the Army went forward under the assumption that the containment engineering of Landfill 6 & 7 would succeed. The Army made bald assertions that the containment would be effective under all circumstances. The conflict of interest in having the polluter and financially responsible party be the lead agency in analyzing, selecting, and implementing the alternatives is evident from reading the decisions in the administrative record. The analysis of alternatives found in the focused feasibility study for the interim removal action was skewed in favor of the Army’s preferred, and less expensive remedy. 8. After the interim containment remedy was selected on April 22, 1997 , the Army brought in Dr. Shabica, a great lakes geology expert, to evaluate the shore protections as part of the subsequent design phase of this interim action. Dr. Shabica informed the Army on November 25, 1997 that the cap, as designed, would fail because of shoreline erosion. Dr. Shabica then proceeded to sell the Army a system of his company’s design for $1.6 million. So after an accumulated 8 years of CERCLA mandated study, the Army’s refusal to assess the potential for catastrophic containment failure was proved wrong by its own expert after the decision was already made. 9. With the interim action complete since 2004 the Army shows no sign of completing a final remedial Decision Document for Landfill 6 & 7. Such a proposed final remedy must provide for the mandated public participation requirements under CERCLA. Plaintiff’s opportunity to supplement the administrative record with the bluff erosion research ignored by the Army will come during the public comment period. Judicial review of the Army’s decision is barred under CERCLA until all remedial action has been taken. So by withholding the decision document for seventeen years, the Army is delaying both public participation and judicial review of its actions. Because the Army and then the Navy transferred this landfill and the adjacent federal property contaminated by this landfill without implementing all remedial action and without the covenants warranting successful and proper operation the Army and Navy are acting illegally and in contempt of a clear congressional statute. Without the required covenants, the Army is avoiding the only regulatory oversight the US EPA is mandated to provide. 10.
The
absence of regulatory oversight provided by a covenant warranting the
proper and successful operation of a final remedy threatens the sixty
thousand users of Highwood and
JURISDICTION AND
VENUE 11. This Court has subject matter jurisdiction pursuant to 42 U.S.C. § 9659(c) (CERCLA citizen suit provision) and 28 U.S.C. § 1331 (federal question statute). 12.
Venue
is proper in the Northern District of Illinois pursuant to 28 U.S.C. §
1391(e)(2) because a substantial part, in fact all, of the property that
is the subject of the action is located in this district.
Venue is also proper in the Northern District of Illinois
pursuant to 42 U.S.C. §9659(b)(2)(CERCLA citizen suit provision) and 42
U.S.C. §9613(b)(CERCLA venue provision). NOTICE 13.
Pursuant
to 42 U.S.C. §9659(a)(2) and in compliance with 40 C.F.R. §§374 et
seq., in a February 27, 2006 Notice of Intent to Sue, Plaintiffs
notified Defendants of their intent to file a lawsuit regarding
defendants’ failure to comply with duties required under 42 U.S.C. §9620(h).
As required by 40 C.F.R. §374.2(a)(3), Plaintiffs sent notice by
certified mail to the President of the United States, the Administrator
of the U.S. EPA, the Region 5 Administrator of the U.S. EPA, the
Administrator of Illinois Environmental Protection Agency, the Attorney
General of the United States, and the Attorney General of Illinois.
Notice was received by all parties no later than 14.
Pursuant to 42 U.S.C. §9659(e) and 40 C.F.R. §374.2(c),
a CERCLA citizen suit cannot be brought before the sixtieth day
following the date on which notice is received.
More than sixty days have passed since the Defendants received
the Notice of Intent to File Suit. The
defendants have not taken any action to come into compliance with their
obligations under 42 U.S.C. §9620(h)(3) to obtain a covenant warranting
that all remedial action has been taken and demonstrated to U.S. EPA as
operating properly and successfully.
Defendants have not, in fact, taken all remedial action necessary
at Landfills 6 & 7 as required by 42 U.S.C. §9620 that is
prerequisite to obtaining such a covenant.
Upon information and belief, Defendants’ failure to perform
this non-discretionary duty will continue until ordered to do so by this
court. PARTIES 15.
Plaintiff
is a resident of 16.
Plaintiff
has expended considerable time and resources since 1995 advocating for
the proper cleanup of contaminated property at 17.
Plaintiff’s
interest in this matter is because the remediation of Landfill 6 & 7
directly affects the health, safety, and welfare of his family and
community. Consequently, he
has spent many years preparing for the public hearing and comment period
that must precede the final remedy selection for Landfill 6 & 7, but
which has not taken place and is not presently scheduled.
Many new studies and policies have come out on bluff erosion and
coastal development that the Army did not consider in the interim
Decision Document. These include major studies and documents by the USGS,
ACE, CZMA, Wisconsin Sea Grant, Great Lakes Commission, the National
Flood Insurance Program, and Executive Order 11988.
Plaintiff plans to enter these studies and policies into the
administrative record using his public comment to any proposed final
remedial action. The undue
delay in proposing a final remedial action denies Plaintiff his right to
participate in the cleanup process. 18.
Plaintiff
has standing because under present plans, 19.
DOD
is the federal umbrella for civilian control over the Department of the
Army and Department of the Navy 20.
Defendant
Donald Rumsfeld is the Secretary of the DOD and is the official
ultimately responsible for all DOD activities. 21.
Department
of the Army is the federal agency that has controlled and been
responsible for activities within 22.
Defendant
Francis Harvey is the Secretary of the Department of the Army and is the
official ultimately responsible for all Department of the Army
activities. 23.
Department
of the Navy is the federal agency that is in control of 185 acres at the
former Fort Sheridan, including Landfill 6 & 7, after the 1993
transfer of property from the Army to the DON. 24.
Defendant
Donald Winter is the Secretary of the Department of the Navy and is the
official ultimately responsible for all Department of the Navy
activities. FRCP
19 STATEMENT 25.
The
relief sought by this complaint affects another entity not made a party
in this suit. Midwest Family
Housing, LLC is a joint
public/private venture formed between the Navy and Forest City Military
Communities, LLC. Midwest
Family Housing was the recipient of 35 acres, by deed, of adjacent and
contiguous property south of Landfill 6 & 7.
Additionally Midwest Family Housing received, by ground lease,
the adjacent and contiguous property north of Landfill 6 & 7.
The purpose of these transfers was to further the goals of
Midwest to redevelop the property for Navy housing to serve Great Lakes
Naval Base located several miles north of Fort Sheridan. 26.
Midwest
Family Housing plans to entitle the southern 35 acres and then sell it
to a private developer. The
proceeds of this sale will be used to improve and add to the stock of
housing on the northern-leased property and to lease this housing to
Navy personnel stationed at Great Lakes Naval Base. 27.
The
reason Midwest Family Housing is not a party to this complaint is
because it is the transferee of the property while this complaint
challenges authority to transfer contaminated federal property without
regulatory closure. There is
no cause of action to state against 28.
The
Navy is a party to this complaint and can adequately represent Midwest
Family Housing’s interests as partner in the LLC. Additionally, Forest
City Military Communities LLC and Midwest Family Housing LLC were on
constructive notice of the environmental contamination and unfinished
selection of a final remedial action for Landfill 6 & 7 and adjacent
property through the comprehensive public administrative record at STATUTORY
FRAMEWORK The Comprehensive
Environmental Response, Compensation, and Liability Act 29.
Congress
enacted CERCLA to address “the serious environmental and health risks
posed by industrial pollution.” 30.
Although
many of CERCLA’s provisions are directed at prioritizing, and
apportioning financial liability for, cleanups on private
property, CERCLA Section 120 provides that
“[e]ach department, agency, and instrumentality of the United
States . . . shall be subject to, and
comply with, [CERCLA] in the same manner and to the same extent,
both procedurally and substantively, as any nongovernmental entity . . . . “ 42 U.S.C.
§ 9620(a)(1). The statute further
provides that “[n]o department, agency, or instrumentality of the 31.
Pursuant
to Executive Order 12580, federal agencies are responsible for certain
remedial actions on facilities under their jurisdiction, custody or
control. E.O. 12580. Accordingly, the Army is responsible for the cleanup at those portions of 32.
Under
CERCLA, a federal agency undertaking a remediation of a contaminated
federal facility site must follow a specific set of procedures. 33.
Substantively,
the NCP mandates that where there are “multiple contaminants at a site
or multiple pathways of exposure,” a “10-6 risk level shall be used
as the point of departure for determining
remediation goals . . . .” 40 C.F.R. § 300.430(e)(2)(i)(A)(2). This
means that after a cleanup is completed, the resulting residual risk of cancer to the
maximally exposed individual on the
site should be 1 in 1,000,000. As EPA has explained, although “the
final cleanup level may reflect
a different risk level within the acceptable risk range (10-4 to 10-6
for carcinogens),” such a level
may only be selected “[b]ased on a consideration of factors during the
nine criteria analysis . . .
.” Rules of Thumb For Superfund Remedy Selection (EPA 1997) at 8. 34.
Under
42 U.S.C. 9617(a), before adoption or implementation of any plan
for remedial action to be undertaken by the President, by a State, or by
any other person, including remedial actions under section 9620, the
President or State "…shall take the following actions: (1) Publish a notice and brief analysis of the proposed plan and make such plan available to the public. (ii) Provide a reasonable opportunity for submission of written and oral comments and an opportunity for a public meeting at or near the facility at issue regarding the proposed plan… The final
remedial action plan must include a response to each of the significant
comments, criticisms, and new data submitted in written or oral
presentations, as well as a discussion of any significant changes and
the reasons for such changes. 35.
For
non-NPL sites, the Decision Document (DD) contains the official
statement of remedial action(s) required for a site and must demonstrate
that the response action chosen is consistent with, and meets the
requirements of, CERCLA and the NCP.
The DD must be signed before initiation of Remedial Action (RA).
The Decision Document is similar to a Record of Decision for a
NPL site 36.
Timing
of judicial review of cleanup decision is limited by denying federal
court jurisdiction until final remedial action is complete.
42 U.S.C. §9613(h)(4) provides that in cases involving
“[a]n action under section 9659 (CERCLA - Sec. 9659. Citizens
Suits) of this title (relating to citizens suits) alleging that the
removal or remedial action taken under section 9604 of this title or
secured under section 9606
of this title was in violation of any requirement of this chapter. Such
an action may not be brought with regard to a removal where a remedial
action is to be undertaken at the site.” 37.
Timing
of transfer of contaminated federal property is also limited by the
completion of all remedial action. 42
U.S.C. 9620(h)(3)(A) provides “…in the case of any real property
owned by the United States on which any hazardous substance was…known
to have been released, or disposed of, each deed entered into for the
transfer of such property by the United States to any other person or
entity shall contain--“ (ii)
a covenant warranting that- (I)
all remedial action
necessary to protect human health and the environment with respect to
any such substance remaining on the property has been taken before the
date of such transfer… 38.
42
U.S.C 9620(h)(3)(B) defines the covenant requirements as: For purposes of subparagraph (A)(ii)(I) and (C)(iii), all remedial action described in such subparagraph has been taken if the construction and installation of an approved remedial design has been completed, and the remedy has been demonstrated to the Administrator to be operating properly and successfully 39.
According
to US EPA, the requirements under 42 U.S.C. §9620h)(3) apply to
transfers between departments of the U.S. Government: “Determining what
constitutes a "transfer" of real property is important for
implementing the requirements of section 120(h). EPA referred to the
FPMR at 41 CFR 101-47.203-2 in order to make sure that federal agencies
realized that the proposed regulations applied to transfers of property
between agencies. EPA believes that, since the statute consistently uses
the word "any" as in "whenever any department, agency, or
instrumentality enters into any contract for the sale or transfer of
property owned by the United States * * * each deed shall contain
covenants * * * it appears clear that the statute and today's rules must
apply to federally owned real property sales and transfers between
agencies of the United States, between the United States and private
parties, and between the United States and state and local
governments.” Final The
National Security Act of 1947 40. The National Security Act of 1947 set up the current structure of the armed forces. 50 U.S.C. §401 As shown by the declaration of policy, each military department within the Department of Defense is meant to be an independent department. DECLARATION
OF POLICY
SEC. 2. [50 U.S.C. 401] In enacting this legislation, it is the
intent of Congress to provide a comprehensive program for the future
security of the United States; to provide for the establishment of
integrated policies and procedures for the departments, agencies, and
functions of the Government relating to the national security; to
provide a Department of Defense, including the three military
Departments of the Army, the Navy (including naval aviation and the
United States Marine Corps), and the Air Force under the direction,
authority, and control of the Secretary of Defense; to provide that each
military department shall be separately organized under its own
Secretary and shall function under the direction, authority, and control
of the Secretary of Defense; to provide for their unified direction
under civilian control of the Secretary of Defense but not to merge
these departments or services; to provide for the establishment of
unified or specified combatant commands, and a clear and direct line of
command to such commands; to eliminate unnecessary duplication in the
Department of Defense, and particularly in the field of research and
engineering by vesting its overall direction and control in the
Secretary of Defense; to provide more effective, efficient, and
economical administration in the Department of Defense; to provide for
the unified strategic direction of the combatant forces, for their
operation under unified command, and for their integration into an
efficient team of land, naval, and air forces but not to establish a
single Chief of Staff over the armed forces nor an overall armed forces
general staff. DEPARTMENT
OF THE ARMY
(b) All laws, orders, regulations, and other actions relating to the
Department of War or to any officer or activity whose title is changed
under this section shall, insofar as they are not inconsistent with the
provisions of this Act, be deemed to relate to the Department of the
Army within the Department of Defense or to such officer or activity
designated by his or its new title.
(c) [50 U.S.C. 409(a)] the term "Department of the Army" as
used in this Act shall be construed to mean the Department of the Army
at the seat of government and all field headquarters, forces, reserve
components, installations, activities, and functions under the control
or supervision of the Department of the Army. DEPARTMENT
OF THE NAVY
SEC. 206. (a) [50 U.S.C. 409(b)] The term "Department of the
Navy" as used in this Act shall be construed to mean the Department
of the Navy at the seat of government; the headquarters, United States
Marine Corps; the entire operating forces of the United States Navy,
including naval aviation, and of the United States Marine Corps,
including the reserve components of such forces all field activities,
headquarters, forces, bases, installations, activities and functions
under the control or supervision of the Department of the Navy; and the
United States Coast Guard when operating as a part of the Navy pursuant
to law. FACTS GIVING RISE TO
PLAINTIFFS' CLAIMS A.
THE ARMY’s Use Of Landfill 6 & 7, And The Legacy Of
Contamination At The Site 41. 1940’s to 1979 The Army created Landfill 6 & 7 by filling in Wells Ravine with waste generated by military operations between the 1940’s and 1979.(Enhanced Preliminary Assessment Report: Fort Sheridan 1989) 42. 1979 The Army ceased operating Landfill 6 & 7 and placed a clay cap over the landfill. 43. 1982 The cap failed due to ponding of water and the failure of the leachate collection system to collect any leachate. The Army stated that the failure was due to its failure to maintain the landfill cap. 44.
The
Illinois EPA has made a presumption that this waste is hazardous. ( 45.
1989
Argonne National Laboratory (ANL) completes an Enhanced Preliminary
Assessment at B. The
Army’s 1993 Transfer By Deed To The Navy 46.
1993
The Army transferred 185 acres of 47. This transfer included Landfill 6 & 7. 48. No covenant warranting that all remedial action had been taken and demonstrated to US EPA to be operating properly and successfully (OPS) was included in the deed. 49. No final remedial action had been completed in 1993 50. This deed is flawed and represents an ongoing violation of 42 U.S.C. §9620(h)(3) because all remedial action has not been taken or demonstrated to US EPA to be operating properly and successfully as of the date of this complaint. C. The Army
Implements An Interim Remedy To Address Uncontrolled Releases 51.
1997
The Army, with concurrence by Illinois EPA and US EPA, implemented an
interim removal action for Landfill 6 & 7 to address uncontrolled
releases of leachate into 52. Vinyl chloride gas is a known carcinogen. 53. 1996 The Focused Feasibility Study analyzed the No Action, containment, and excavation alternatives for the interim removal action. The Army analysis of alternatives favored the $16 million capping alternative over the unknown cost of excavation. The analysis shows serious flaws in objectivity. (Fort Sheridan Landfills 6 & 7-Final Focused Feasibility Study 1996) 54. The Army leaves open the possibility that the waste could be so hazardous it would trigger land disposal restrictions if excavated. Excavation was estimated at $36 million if low level municipal waste, $136 million if hazardous and needs to be placed in a RCRA permitted hazardous waste landfill, or $711 million if upon excavation the waste was determined to be so hazardous as to trigger land disposal restrictions and would have to be incinerated prior to placement in a RCRA permitted hazardous waste landfill. (Fort Sheridan Landfills 6 & 7-Final Focused Feasibility Study 1996) 55.
56. Public comments were submitted that the Army inadequately characterized the waste before deciding for containment and against excavation. 57. Army response was that limited characterization is adequate because the landfill cap will successfully contain the waste regardless of toxicity and because the characterization was sufficient to show elevated toxicity to justify an interim removal action. 58. In the analysis for containment the Army states “sufficient information is available to determine that Landfills 6 and 7 are sufficiently similar to municipal solid waste (MSW) landfills that implementation of a presumptive remedy is appropriate” and “…the concentrations of the compounds observed above detection limits are, in fact, relatively low in comparison to literature values for MSW leachate.” (Responses to Comments, Interim Action-Fort Sheridan Landfills 6 and 7, Response to Cities of Highland Park and Highwood 1-1. 1996) 59. But in the analysis of excavation the Army had stated, “[n]o testing has been performed on the waste to determine if the waste is characteristically hazardous. The wastes could potentially contain constituents at such concentrations that land disposal restrictions would prohibit disposal in a landfill unless treated by incineration or other suitable means” and then, “IEPA considers the waste to be hazardous based on the types of waste placed in the landfills and on the constituents detected in the landfill gas and the shallow groundwater, unless proven otherwise by further testing.” (Fort Sheridan Landfills 6 & 7-Final Focused Feasibility Study. 1996 Pg 218-219). 60.
61. The Army response was that it was appropriate to assume capping would successfully contain the waste because the Army would not allow catastrophic bluff failure, but that it was not looking at worst case scenarios when pointing out possible dangers of overturned trucks, rail accidents, barge accidents, and exposure-by-air to local residents of high hazard waste in the excavation alternative. (Responses to Comments, Interim Action-Fort Sheridan Landfills 6 and 7. 1996) 62.
63.
The
Army response focuses on a single line of the study saying, “the data
and conclusions from this study are relevant for regional planning
rather than for site-specific engineering.”
The Army response does not mention the very next sentence from
the study that says “[a]ny
planning for construction near the bluffs, however, must anticipate some
amount of bluff recession and stipulate sufficient setback to insure the
integrity of structure for its anticipated life.”
(Responses to Comments,
Interim Action-Fort Sheridan Landfills 6 and 7. 1996) (Jibson,
Randall W and Odum, Jackson K. Rates
and Processes of Bluff Recession Along the 64. The interim action for Landfill 6 & 7 does not stipulate any setback of the waste or eastern containment wall from the eroding bluff. 65.
66. It is unclear if the basis of Dr. Shabica’s claim is his expertise or if it is a marketing claim or warranty by his company. D. The Army
Privatizes Cleanup 67. 2001 The Army decided to privatize the cleanup by bidding out a Guaranteed Fixed Price Remediation (GFPR) contract in which the chosen contractor would be responsible for achieving regulatory closure at a fixed price. E. The Army
Abandons Regulatory Closure And Gets Rid Of
US EPA 68.
69.
70.
71.
SEP
24, 2002 Army letter
introducing a definition of regulatory closure that avoids covenants
warranting that the remedy is operating properly and successfully as
required under CERCLA 120 H(3) and instead that the remedy “is in
place and working”. 72.
73.
74.
75.
SEP
25, 2003 US EPA letter
to Army which, in its entirety, concludes that US EPA will not concur
with any final decision document that proposes the current interim
removal action as the final remedial action unless the Army can justify
its substantial non-compliance with the interim remedy Decision Document
and interim remedy Design Document requirements.
The stated non-compliance includes: 1)
Including rocks and clay boulders in the cap soil cover larger than
design specifications that can thin the bentonite cap liner, create pond
areas in the cap that will trap water during the winter freeze/thaw
cycle, and degrade the ability of the cap to contain landfill gas 2)
The possible inclusion of demolition debris from the Lake County Forest
Preserve District waste piles in the landfill cap (see paragraph 78)
3) New cancer slope factors being considered by US EPA for TCE
might increase its risk assessment concerns 4) Excessive wrinkling and
compression of the liner materials were observed during construction of
the cap and might not adhere to the 3” maximum amplitude set by the
Army 5) multiple freeze/thaw incidents occurred on the partially
constructed cap 6) The Geocomposite Clay Layer was not kept indoors
during construction and so there was at least one rainfall event
resulting in premature hydration 7) lack of certification by
Army Corps of Engineers for protectiveness of coastal engineering
since FORSCOM disassociated from Corps in 2001.
In fact, US EPA’s original concurrence with the interim remedy
Decision Document was predicated on such certification by the Army Corps
of Engineers. (Administrative Record 6.143.2) 76.
77.
2004
Kemron completes construction of the modified RCRA cap over Landfill 6
& 7 F. Kemron’s
Implementation Of Landfill Cap Is Flawed And Unlikely To Receive OPS 78.
79.
2003
During implementation of soil cover over the engineered cap,
Kemron used unscreened soil that included rocks over 6” in diameter.
The specification for cover soils called for screening for rocks
above 2”. The soil
was then compacted onto the geocomposite clay layer.
The larger rocks pose the danger of creating divots in the liner,
which is supposed to remain smooth to assist in complete rainwater
diversion. The divots
increase the risk of water becoming trapped and remaining during the
freeze/thaw cycle and degrading the liner. 80.
APR
18, 2003 Army letter to US EPA requesting concurrence with the Army
contractor’s conclusion that the rock picking effort to remedy the
unscreened soil “meet[s] the spirit of the design.” 81.
82.
G. Steven Pollack
Prepares For Public Participation For Final Remedial Decision 83.
Summer
of 2004 Steven Pollack attends summer school at Chicago – Kent
College of Law and participates in the Chicago Environmental Law Clinic
to prepare public comments that are required once Kemron and the Army
propose a final remedial action.
84.
Summer
of 2005 Steven Pollack
attended summer school by participating in the Chicago Environmental Law
Clinic to research the basis of the Army reliance on a thirty-year time
frame in assessing capping effectiveness and permanence, and what unique
obligations 42 U.S.C. § 9620 (CERCLA) places on contaminated federal
property owners. H. Navy’s
Transfer By Deed And Lease Of Contaminated Federal Property 85.
86.
87.
DEC
01, 2005 Navy entered a public/private venture (PPV) with Forest
City Military Communities through an LLC.
The PPV is named Midwest Family Housing LLC, an 88.
The
35 acres transferred by deed from the Navy to the PPV is contaminated
federal property (see paragraph 51). 89.
Upon
information and belief, the transfer of 35 acres by deed from Navy to
the PPV did not contain a covenant warranting that all remedial action
had been taken and demonstrated to US EPA as operating properly and
successfully. 90.
This
deed is flawed and represents an ongoing violation of 42 U.S.C. §9620(h)(3)
because all remedial action to avoid further contamination by vinyl
chloride gas from Landfill 6 a& 7 has not been taken or demonstrated
to US EPA to be operating properly and successfully as of the date of
this complaint. I. Preparation For
Current Complaint 91.
2005
92.
93.
This
sixty-day notice is intended to allow the agency to come into compliance
prior to litigation and, alternatively, to allow the Attorney General to
pre-empt the private attorney general by bringing the action for
compliance. Upon knowledge
and belief, the Army and Navy have failed to come into compliance with
the violations claimed below. Upon
knowledge and belief, the Illinois Attorney General does not intend to
take over this action for compliance.
Accordingly, Plaintiff files this action for declaratory judgment
and injunctive relief. PLAINTIFFS’ CLAIMS FOR
RELIEF First Claim (CERCLA
PROCESS) (Violations of 42 U.S.C. §
9620) 94.
By
failing to implement CERCLA standards and follow CERCLA process in
carrying out the Landfill 6 & 7 cleanup, specifically, failing to
undertake a remedial action feasibility study analyzing all viable
potential alternatives, the Army is violating CERCLA, 42 U.S.C. § 9620,
and 40 C.F.R. § 300.430 (e) and is acting in a manner that is arbitrary
and capricious and contrary to the law in violation of the APA. 5 U.S.C.
§ 706 95.
By
delaying implementation of CERCLA standards and the CERCLA process in
carrying out the Landfill 6 & 7 cleanup, specifically failing to
finalize a remedial Decision Document by not completing a remedial
action feasibility study analyzing all viable potential alternatives,
failing to consider the nine criteria which must guide the remedial
action selection process under CERCLA, failing to propose a final
remedial action, and failing to allow for public participation through
comments in a timely manner the Army is violating CERCLA, 42 U.S.C. §
9620, and its implementing regulations and guidance through undue delay
and is acting in a manner that is arbitrary and capricious and contrary
to the law in violation of the APA. 5 U.S.C. § 706 96.
Alternatively,
if the Army considers the already completed removal action to be the
final action and does not plan to issue a final Decision Document then
the Army is violating CERCLA, 42 U.S.C. § 9620, and its implementing
regulations and guidance by limiting required public participation under
42 U.S.C. § 9617 prior to implementing a final remedial action and is
acting in a manner that is arbitrary and capricious and contrary to the
law in violation of the APA. 5 U.S.C. § 706 97. Because a final Decision Document requires prior public participation through oral and written comments; because a final Decision Document is required prior to beginning final remedial action; because completion of all remedial action is required to obtain judicial review; because completion of all remedial action is required to obtain a covenant from the Administrator warranting that all remedial action has been taken; because completion of all remedial action is required to obtain a covenant from the Administrator warranting that the completed remedial action is operating properly and successfully; and because the covenant warranting all remedial action has been taken and demonstrated to the Administrator to be operating properly and successfully is a statutory prerequisite to the transfer by deed of contaminated federal property; by transferring by deed in 1993 Landfill | |