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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?
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The Blue Eco Legal Council is being formed as an umbrella organization for the litigation being conducted at Fort Sheridan, for the Coast Guard's Live Fire training exercises on the Great Lakes, and any other watchdog litigation needed to protect our Midwest treasure. Membership is free and an important benefit is our e-newsletter that details threats to the Great Lakes and actions we are taking to address them. Join the Blue Eco Legal Council here. 26 November 2007 The Army has re-issued a proposed final remedial plan with public comments due December 15, 2007 (actually January 15, 2008 because we will ask for the 30-day extension which is of right under the statute). The public meeting is scheduled for December 3, 2007 at 7pm, 878 Lyster Road, Highwood, IL 60040. Map of 878 Lyster Rd Highwood, IL 60040-2004, US Public comments will be taken orally with a reporter present. I plan to submit both oral and written comments. One question I want answered is if the Navy will notify its personnel living adjacent to the landfill that the former housing assignments were subject to 5 year cumulative exposure restrictions because of the vinyl chloride gas emitted from the landfill into the housing. Don't they have a right to informed consent? Will they also inform the future military residents that US EPA was asked to concur with the current remedy being proposed as the final remedy but refused? Why did US EPA refuse? Because of Kemron's 2002 flawed implementation of the landfill cap US EPA approved in 1997. 18 October 2007 Today, we lost our appeal. The United States Seventh Circuit Court of Appeals has ruled that the Executive branch of the government, via the Army and Navy, can violate the Congressional mandate that US EPA concur with the remedy BEFORE any transfers of contaminated federal property. If there was ever a case of the fox guarding the henhouse, this is it. What the Seventh Circuit has done is to allow Navy personnel to move into housing on contaminated federal property and possibly be exposed to the vinyl chloride gas from the adjacent landfills, the escape of which was the reason for the remedy in the first place. The escape of which caused the Navy to rotate its personnel out of the housing every five years to avoid cumulative exposure. (see below) Will the Navy continue to rotate the personnel or otherwise warn them that they are living in housing that could expose them to vinyl chloride gas? Will the Navy warn its personnel that US EPA was asked to concur with the adequacy of the landfill cap next to their housing but refused because of the Army's flawed implementation of the cap? My guess, based on the actions of the DOJ, Army, and Navy attorneys in defending against our suit seeking to enforce the environmental law is that they will not. And this is how we honor our military personnel, with flawed landfill caps, exposure to carcinogenic gas, and a vigorous defense against citizen suits. 01 October 2007 The Blue Eco Legal Council filed a 60 and 90 day notice of intent to sue the Department of Justice, Navy, and Marines for discharging lead bullets into Lake Michigan at the FBI Firearms Training Range in North Chicago, Illinois, property connected to the Great Lakes Naval Base. 18 September 2007- Oral Argument Pollack v DoD, Army, and Navy Oral Argument Did the Department of Justice mislead the Seventh Circuit Court of Appeals? The DOJ attorney for the Army and Navy stated in oral argument that the property adjacent to Landfill 6 and 7 "was never property on which hazardous waste was known to have been released or deposited or stored and it is therefore not within the cleanup because of that finding." What about this Response by the Army to Public Comments to the Interim Remedy made by the cities of Highland Park and Highwood in 1997? (page 2, page 1) Q. 1-2: The proposal to cap Landfills 6 and 7 as an interim measure was explained at the public meetings as necessitated by the escape of vinyl chloride gas. Specifically, we were advised that the risk factor for this gas is such that interim action must be taken at this time. Surprisingly, however, the Navy has left it to the individual discretion of the residents proximate to Landfill 6 and 7 as to whether they wish to relocate. There seems to be a significant inconsistency between the Army's rush to judgment to install a cap and the Navy's determination with respect to the relocation of the adjacent residents. Response: Implementation of an interim remedial action at Landfills 6 and 7 is necessary to address unacceptable releases from the landfill to the environment and to comply with state and federal environmental regulations. Releases of landfill gas and leachate require action. The landfill covers are in poor condition and allow excessive infiltration of surface water resulting in leachate generation. The landfill gas sampling and risk evaluations conducted indicate no immediate risks for the military residents based on existing conditions and a maximum period of 5 years living adjacent to the landfills. Navy personnel currently allocated to the adjacent housing live in these units no more than 5 years. The Navy is relocating residents in preparation for construction, not due to short-term risks. 1 September 2007 - On Tuesday Sept. 18, at 10am, Steven Pollack will argue in front of the Seventh Circuit Court of Appeals Pollack v. U.S. Dept. of Defense, Army, and Navy 07-1104. The Court ordered oral argument even though neither party requested it in their briefs. It can only mean good things. 23 January 2007 - Blue Eco Legal Council Opens Up Its Membership To The Public The Blue Eco Legal Council is being formed as an umbrella organization for the litigation being conducted at Fort Sheridan, for the Coast Guard's Live Fire training exercises on the Great Lakes, and any other watchdog litigation needed to protect our Midwest treasure. Membership is free and an important benefit is our e-newsletter that details threats to the Great Lakes and actions we are taking to address them. Join the Blue Eco Legal Council here. 20 January 2007 - Pollack Files Appellate Brief Attorney Steven B. Pollack filed his opening appellate brief in the United Stated Court of Appeals for the Seventh Circuit. The Army has a duty to cleanup hazardous waste landfills at Fort Sheridan. Pollack sued when the Army and then the Navy transferred the contaminated property before taking all remedial action. The Army raised the issue of the courts ability to hear the case because the CERCLA statute does not allow challenges cleanup decisions while the cleanup is ongoing. Pollack argued that he is not challenging the cleanup decision, he is challenging the transfer of property before the cleanup is complete. The government defendants claimed this is the same thing. Federal Judge Manning agreed this is the same thing and dismissed the case as premature. Pollack filed a notice of appeal and today filed his opening appellate brief. 12 January 2007 - Pollack Files Notice of Appeal Because the Navy is rushing to get the illegally transferred property redeveloped before any judicial review can be obtained in a later filed case, Pollack today filed a notice of appeal to the Seventh Circuit Court of Appeals. The appeal challenges the District Court's finding that Section 113(h) of CERCLA, which bars pre-implementation challenges to environmental response actions, also bars review of the property transfer requirements found in Section 120(h) of CERCLA. 9 January 2007 - Pollack Files Long Delayed Public Comments For Landfill 6 & 7 Because Pollack's lawsuit against the Army and Navy caused the government to finally propose the interim remedy chosen in 1997 to be the final remedy, he can at long last comment on the final proposed remedy. These comprehensive comments (caution, 14mb) detail how the Army Corps of Engineer's position on shoreline erosion, that there are no permanent remedies, is directly opposite to the Army's position for Landfill 7, that the shoreline can be permanently engineered against catastrophic bluff failure. The Army, as lead agency, has a duty under CERCLA to choose a permanent and long-term effective remedy. These comments also detail the violation of EO 11988 from the Army building a hazardous waste landfill inside a regulatory 100-year floodplain. Finally, as brought out in the case discussed below, the Army violated Section 120(h)(3) of CERCLA. As owner of contaminated federal property, the Army is required to obtain a covenant from US EPA that all remedial action has been taken and is operating properly and successfully( OPS). US EPA says the interim remedy has not been demonstrated OPS and likely could not be because the Army used unscreened soil cover containing boulders that can create depressions in the otherwise smooth liner. These depressions will hold water through the freeze/thaw cycles and degrade the liner. Without this covenant the Army should not have been allowed to transfer the property to the Navy and the Navy to its privatization partner. But, unfortunately, the case was dismissed as premature because the "cleanup" is ongoing. The same ongoing "cleanup" that precludes transfer. 15 December 2006 - Judge Manning Grants Government Motion to Dismiss Plaintiff's case was dismissed today without prejudice. This means the case can be brought once the cleanup is complete. Pollack says the Court's ruling is an extension of the 113(h) bar to judicial review that is not supported by the clear language of the statute. Judge Manning's ruling does state "[t]he court appreciates Mr. Pollack’s sincere interest in environmental issues near his home." Pollack would like to thank Judge Manning. 13 November 2006 - The Illinois Supreme Court Swears Plaintiff In To The Illinois Bar Plaintiff, Steven B. Pollack is now an Illinois attorney. His new website is at www.FireClaimLaw.com He will concentrate in the areas of complex insurance claims, real property transactions, and environmental enforcement. Plaintiff is further contemplating a citizen suit against the U.S. Coast Guard for its plan to conduct live fire training exercises in the Great Lakes, and in the process, discharging 6,000lbs of lead waste per year into the public water supply. The government's motion to dismiss was fully briefed on October 31 and Judge Manning promised to rule expeditiously. 01
October 2006 - The Illinois Board of Admissions To The Bar Announces
That Plaintiff, Steven B. Pollack Passed The Illinois Bar 11 September 2006 - The Department of Justice On Behalf Of Defendants Files a Motion To Dismiss And A motion To Hold Discovery In Abeyance Pending Its Motion To Dismiss Today was the day set for the government to answer Plaintiff's complaint. Instead it filed for a motion to dismiss citing Section 113(h) of CERCLA which denies jurisdiction to federal courts to hear challenges to response actions while they are ongoing. Defendants' memorandum of law tries to argue that Plaintiff is not really challenging the legality of the transfer as the plain language of the complaint claims but rather is making a veiled challenge to the response. Plaintiff was well aware of this prohibition on challenging cleanup decisions prior to completion and is confident that the complaint does not challenge the cleanup response in any way. Plaintiff feels the Defendants are purposely mis-characterizing his complaint in order to apply the bar to review where it would not otherwise apply. 10 August 2006 - Hearing For Motion For Temporary Restraining Order And/Or Preliminary Injunction Judge Manning denied the temporary restraining order request and sent us down to Magistrate Judge Denlow for the preliminary injunction. When we first got there his clerk had us read an article written by the Judge setting out the reasons why preliminary injunctions are a waste of judicial resources. Read the article here. That was not a good sign of things to come. After much back and forth whether I delayed filing this motion and if there would even be harm to me from trial delay, we got to the issue of bond requirements. I argued that the judge has the discretion in the 7th Circuit to set a nominal bond, or even none at all, in environmental cases. I had the whole motion briefed (see below) but on oral argument Judge Denlow stated that there was no way he would consider setting anything but a substantial bond. His reasoning was that an erroneously granted injunction, if I were to lose at trial, would harm the workers. Because this is a citizen suit to enforce environmental laws, I have no plans to put any money up for bond and I stated this to Judge Denlow. I had no alternative but to withdraw my motion. I am ordering the transcript of this hearing and will post it here because I think it is instructive for other environmental advocates to see how federal district court works. I asked what protects me from an erroneously denied injunction, if I win at trial, and the Navy has gone ahead and completed their $200 million project on contaminated federal property. He said the defendants are on notice of this suit and take the risk into their own hands. I hope it is true that the judge will set aside this irretrievable commitment of government resources if I do win this case. I did make a motion for an expedited trial, which was granted, so we will see if that gets us to a hearing on the merits any quicker. This case is already three months old and the government has not answered my complaint. 04 August 2006 - Motion For Temporary Restraining Order And/Or Preliminary Injunction Filed After getting more time to answer Plaintiff's complaint, Defendant Navy moved ahead with demolition of existing housing in preparation for construction on the illegally transferred contaminated federal property that is the basis of this lawsuit. Plaintiff therefore filed this motion for a temporary restraining order and/or preliminary injunction to maintain the status quo pending the outcome of the trial on the merits. Read the motion here. 27 June 2006 - First Status Call For 06 CV 02659 At the first status call, just 15 days before the government was required to answer Plaintiff's complaint, the Department of Justice attorney representing Defendants Army, Navy, and DOD asked for and received a 60 day extension to file an answer. Plaintiff Pollack offered no objection because it seemed fair given the large size of the 17-year administrative record and because Pollack was preparing for the Illinois Bar Exam administered July 25-26. It should be kept in mind that an answer simply admits, denies, or states that defendant has insufficient information to admit or deny each of the numbered assertions in plaintiff's complaint. It will be six months since Defendants in this case received Plaintiff's 60-day notice of intent to sue by the time it admits or denies the allegations. The new date is September 11, 2006 for Defendants to answer. 12 May 2006 - Complaint Filed In United States For The Northern District of Illinois. Steven Pollack today filed his complaint for declaratory and injunctive relief for the illegal transfer of contaminated federal property without regulatory closure at Fort Sheridan. Read the complaint here. 27 February 2006 - 60-Day Notice of Intent To Sue Filed For Illegal Transfers of Contaminated Federal Property Without Regulatory Closure. Steven Pollack took the preliminary step of filing a 60-day notice against the Department of Defense, the Department of the Army, and the Department of the Navy for transferring contaminated federal property without first completing all remedial action and second demonstrating to US EPA that the final remedial action is operating properly and successfully. The 60-day notice requirement is required before filing suit in federal court. Read the sixty-Day notice here. 12 December 1997 - US EPA Agrees To Conduct Preliminary Assessment Into The Dangers Posed By UXO To The Local Water Supply Near Fort Sheridan. The US EPA today agreed with Steven Pollack that the risk of chemicals in unexploded ordinance (UXO) sitting on the lake bed near local water intake cribs warrants a Preliminary Assessment (PA) under CERCLA into the possibility of migration. Pollack had been rebuffed by the local Base Closure Team at Fort Sheridan when he requested a PA for this issue. Pollack's conclusion about why one request was denied and the next accepted is that the second contained the exact language of the statute whereas the first was made verbally as a member of the audience at a Restoration Advisory Board meeting. "I think they just did not take my request seriously until I took the initiative to request documents from the Army through a Freedom of Information Act request and prove the danger. It is too bad the public has to do the work of the regulatory community" Pollack says. 10 October 1997 - Petition Filed With US EPA Demanding They Conduct A Preliminary Assessment Into Artillery Fired Into Lake Michigan During WWI and WWII. Steven Pollack filed a petition, under the National Contingency Plan (NCP), to require the US EPA to conduct a preliminary assessment (PA) into the million rounds of artillery fired into Lake Michigan from Fort Sheridan near the town of Highwood and Highland Park water treatment plants. The NCP requires the US EPA to conduct a PA into the release or suspected release of hazardous material that will affect human health and the environment. Pollack had originally gone to the Fort Sheridan Restoration Advisory Board to inquire why the Army was not conducting a PA into the artillery as part of the ongoing Fort Sheridan environmental cleanup required under the Base Realignment and Closure Act (BRAC) and CERCLA. The Base Closure Team responded that Lake Michigan is public property and not subject to BRAC cleanup requirements. Additionally, the BCT responded that a rule of thumb is that 10% of the artillery would likely be unexploded and sitting on the lake bed, making any cleanup dangerous. After receiving documents of the chemical compounds in the six types of artillery shells used at Fort Sheridan through a Freedom of Information Act request, Pollack filed this petition stating that 62 tons of TNT and 65 tons of RDX were present in the 100,000 live shells sitting on the lake bed in proximity to the water treatment plant intake cribs in Lake Michigan.
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If you want to know what you can do, stand up and being counted! Let your legislators know your feelings. You don't have to be a resident of Highland Park or Lake Forest to be concerned about this landfill. Lake Michigan is a critical national fresh water resource. Send your congressman an e-mail! Send your senator an e-mail! Send Governor Blagojevich e-mail! Send the president an e-mail! by Steven Pollack You can become a part of the good fight by helping cover the cost of advocacy in this matter. While not tax deductible, 100% of your donation will go towards either litigation expenses or the cost of publicizing this issue. Please e-mail me to let me know your views! This website launched 5/30/97
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