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Motion For Preliminary Injunction Filed 04 Aug 2006 |
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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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UNITED STATES DISTRICT
COURT NORTHERN DISTRICT OF
ILLINOIS EASTERN DIVISION _____________________________________ Steven
Pollack,
)
)
Plaintiff,
)
)
v.
)
) United
States Department of Defense,
) No. 06 C 02659 Donald
Rumsfeld as
Secretary, )
United
States Department of the Army,)
Francis
Harvey as
Secretary,
)
United
States Department of the Navy,)
Judge Manning
and,
Donald Winter as Secretary
)
) ______________Defendants.____________) BRIEF IN SUPPORT OF PLAINTIFF’S MOTION FOR A
TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION INTRODUCTION Plaintiff asks this Court to issue a temporary restraining order and a preliminary injunction to prevent imminent and irreparable harm to Plaintiff from the demolition of existing housing and construction of new housing on the contaminated federal property illegally transferred by Defendants. Defendant Navy began demolition for this redevelopment project in July 2006 as part of Navy’s public/private venture (PPV) entered into with Forest City Military Communities, LLC in December of 2005.
I.
PLAINTIFF SHOULD BE GRANTED A TEMPORARY RESTRAINING ORDER
AND/OR PRELIMINARY INJUNCTION TO PRESERVE THE STATUS QUO AND PREVENT
IRREPARABLE HARM FROM DEFENDANTS THREATENED CONSTRUCTION ON ILLEGALLY
TRANSFERRED CONTAMINATED FEDERAL PROPERTY Plaintiff meets the requirements of the analytical framework adopted by the Seventh Circuit for granting a preliminary injunction: (1) without an injunction Plaintiff will suffer serious, irreparable injury for which there is no adequate remedy at law; (2) the irreparable harm that Plaintiff will suffer from an erroneous denial of injunction outweighs the harm to the Defendants from an erroneous grant of injunction; (3) after weighting the harms by Plaintiff’s high likelihood of success on the merits; and (4) granting the injunction is in the public interest. Plaintiff should therefore be granted a preliminary injunction enjoining Defendant Navy and its PPV partner in Midwest Family Housing LLC., Forest City Military Communities LLC., from demolishing old housing and building new housing until the conclusion of this case on the merits. A request for preliminary injunction requires the
court to balance the risk to plaintiff by an erroneous denial of
injunction, against the risk of error to the defendant by an erroneous
grant. See
American Hospital Supply Corp. v.
Hospital Products Ltd., 780 F.2d 589, 593 (7th Cir.
1986). In a challenge to an
administrative action in which a decision will be on review of the
administrative record without trial, only a narrow set of circumstances
will cause the kind of delay that justifies a preliminary injunction. See
Cronin v. The Seventh Circuit uses a sliding scale approach that
compares plaintiff’s harm from an erroneous denial of injunction to
defendants harm from an erroneous grant and then weights each harm by
the party’s likelihood of success on the merits.
See Roland Machinery Co. v.
Dresser Industries Inc., 749 F.2d 380, 385-88 (7th Cir.
1984). This circuit has reworked Judge Learned Hand’s well known tort
formula to help analyze these issues. See
United Stated v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir.
1947); Because there is typically little delay in a court proceeding that is a review of the administrative record, a preliminary injunction is usually not necessary to protect plaintiff from irreparable harm associated with trial delay. The Seventh Circuit, however, has enumerated three instances where this presumption of no delay is inapplicable and a preliminary injunction may be granted: (1) If the administrative record is so vast or complicated that the district judge cannot analyze it and make his final decision in time to avert harm to the plaintiff due to delay, then the plaintiff can move for a preliminary injunction…. (2) Likewise the plaintiff can seek a preliminary injunction against the execution of the administrative decision if the record is incomplete when suit is filed and if, as in (1) time is pressing…. (3) Or, what is
closely related, a preliminary injunction may be proper if the case is
one of the unusual administrative review cases in which an evidentiary
hearing is necessary in order to reconstruct the grounds or contents of
the agency’s decision and the alternative of staying the review
proceeding for further administrative action is infeasible-presumably
because, once again, of time. Cronin, 919
F.2d at 446-47. A.
Plaintiff Has No Adequate Remedy At Law And Will Suffer
Irreparable Harm Because plaintiff is not seeking a remedy at law but rather the remedying of government violations of substantive environmental laws, there is no compensation available for irreparable harm caused by trial delay. There is, therefore, no adequate remedy at law for Defendants’ continued violation of deed and lease transfer prerequisites under 42 U.S.C. § 9620(h)(3)(A)-(B). Plaintiff will suffer irreparable harm if Defendant is allowed to upset the status quo by continuing demolition and construction of housing, in and around Landfill 6 & 7, pending review of the administrative record leading to Defendants’ decisions to transfer contaminated federal property without having 1) completed all remedial action and 2) demonstrated to U.S. EPA the completed remedy is operating properly and successfully as required by § 9620(h)(3)(A)-(B), or 3) consulted with U.S. EPA on the suitability of leasing the contaminated federal property as required by § 9620(h)(3)(B). Plaintiff articulates three separate irreparable harms: harm to the statutory scheme, harm to the decision to seek a covenant from U.S. EPA, and harm to the analysis of feasible alternatives in selecting the final remedial action. 1. Harm To The Statutory Scheme The harm to the statutory scheme is closely related to Plaintiff’s high likelihood of success on the merits because Defendants’ actions in avoiding obligations under § 9620(h)(3)(A)-(B) are illegal and willful. In fact, Defendants come to this action with unclean hands. Defendants have been on notice for years of the requirement to obtain a covenant by U.S. EPA warranting that all remedial action has been taken and is operating properly and successfully prior to transferring contaminated federal property by deed. See Conservation Law Foundation, Inc. v. Department of the Air Force, 864 F. Supp. 265, 289-93 (Dist.NH 1994) (“The statute expressly forbids the transfer by deed of contaminated property without remedial measures in place which have proven to be successful”), rev’d in part on other grounds, 79 F.3d 1250 (1st Cir. 1996)(reversed because Congress amended statutory language to exempt long term leases from § 9620(h)(3)(A)(ii) covenant requirements); Exhibits A and B. Defendant Army contracted its cleanup obligations to Kemron Corp., the contract specifically requiring Kemron to achieve regulatory closure of Landfill 6 & 7. See Exhibit C. [The Army] implemented the interim containment remedy in a defective manner for which U.S. EPA suggested no covenant would be available based on the deviations from the Decision Document and Design Document. These documents relate to the decision to place an interim cap over the landfill and were subjected to notice and public comment. See Exhibits D and E. Defendant Army then disclaimed the obligation to seek covenants from U.S. EPA and introduced a new definition of regulatory closure “in place and working” without notice or public comment. See Exhibit A. Defendant Army then ceased funding U.S. EPA’s participation in the cleanup process. See Exhibit F. Defendant Navy was also on notice of the need for covenants but apparently decided to move forward without them and transferred property to its PPV partnership with a private developer. See Exhibits B, G and M. Allowing the PPV developer to demolish existing housing and construct new housing in reliance and consideration of these illegal transfers and the flawed landfill cap implementation violates the clear and unambiguous prerequisites to transfer found in the statute and itself represents harm to Plaintiff. See Scherr v. Volpe, 466 F.2d 1027, 1034 (7th Cir. 1972). Congress empowered citizens to sue for violations of CERCLA, thereby overriding the usual discretion of state and federal regulators and law enforcement agencies, in order to give effect to the harm from the violation itself. See 42 U.S.C. § 9659(c). 2. Harm To The Decision To Seek
A Covenant From If Defendants are allowed to continue with their irretrievable expenditure on redevelopment then there will be more internal pressure applied to U.S. EPA to factor in these expenditures if and when, at the end of this case, this Court issues a mandatory injunction requiring Defendants to seek the covenants. See Exhibit C, Pg. 2, Num. ¶ 4. The U.S. EPA does not regularly enforce cleanups against the federal government. See John F. Seymour, Transfer Of Federal Lands: Compliance With Section 120(H) Of The Comprehensive Environmental Response, Compensation, And Liability Act, 27 Colum. J. Envtl. L. 173, 182-83 (2002). The ongoing construction may predispose U.S. EPA to reluctantly grant the covenant to avoid wasting federal money. Because the statutory scheme withholds transfer authority until after this covenant has been issued, U.S. EPA must assess the property in its current condition, not its condition after redevelopment. See Scherr, 466 F.2d at 1034. 3. Harm To The Analysis For Final Remedial Action
Building new housing around Landfill 6 & 7 represents the
type of irretrievable commitment of government resources which can
result in a predisposition that this circuit has held to be harm to
objective decision making. There is admittedly little case law regarding section 9620(h)(3) requirements in general and none analogizing the harm to decision making under NEPA to the harm to decision making under CERCLA. The lack of prior litigation, however, does not mean this Court is on shaky ground in adopting this analogy or granting Plaintiff relief. The statutory language in § 9620(h)(3) is so clear that there may have been little prior opportunity for the federal government to test for ambiguity. In fact, as will be discussed in the section on likelihood of success on the merits there is little ambiguity in this case. The Defendants in this case simply find themselves in a position where they have acted illegally and the cost of compliance is so high they continue forward with their course of action.
Like in the case of NEPA,
CERCLA mandates that the various
feasible alternatives be developed and analyzed prior to choosing a
course of action. Unlike
NEPA, CERCLA sets standards for selecting the “right” alternative by
setting objective standards for evaluating and comparing all the
feasible alternatives. This
distinction between NEPA and CERCLA strengthens the harm to the decision
making process under CERCLA. Under
NEPA the harm from irretrievable commitment of resources is only the
creation of a predisposition towards the ongoing project whereas in
CERCLA the harm is to both the creation of a predisposition towards the
ongoing project and also the likelihood of accepting a less desirable
choice because the ongoing project changes the facts upon which to apply
the objective criteria. In
this case, the proximity of the ongoing demolition and construction to
Landfill 6 & 7 at B.
Defendants Harm From An Erroneous Grant Of Preliminary Injunction Is
Minor The only harm Defendants will suffer is a time delay in demolition and construction during this Court’s review of the administrative record. The Defendant’s need for new housing stock is real, albeit not so pressing to justify denying Plaintiff a preliminary injunction. Evidence of this is the fact that the Army transferred this property by deed to the Navy in 1993 yet Defendant Navy waited until December of 2005 to begin redeveloping the property. It is hard to imagine the hardship that a delay of three to nine months will bring to the Navy pending this Court’s proceeding when the need was not so pressing for 12 years. Whatever harm will befall Defendants from issuance of
a preliminary injunction, however, is of its own making.
Defendants knew of these statutory prerequisites to transfer,
knowingly violated the requirements, and changed the definition of
regulatory closure without notice to the public or opportunity to
comment. Furthermore, the
Defendants have been on actual notice of this lawsuit since C. Plaintiff’s Likelihood Of Success On The Merits Is Great The transfer of contaminated federal property in 1993 and 2005 at the former Fort Sheridan, without having completed all remedial action, obtaining the required covenant from U.S. EPA warranting that an implemented final remedial action is operating properly and successfully, or consulting with U.S. EPA on the leases are per se violations of the clear statutory language of § 9620(h)(3)(A)-(B). Furthermore, although not an element of the violations, Plaintiff offers proof that Defendant’s motivation for sidestepping the prerequisite covenants was its substantial deviation from the interim remedy Decision Document which U.S. EPA indicated an unwillingness to overlook in any request for the required covenants. See Exhibit E Finally, Defendants have no defenses to these violations because the statute itself denies the Army any rulemaking authority to change the standards or guidelines that the Administrator, i.e. U.S. EPA promulgates. The elements of the violation for deed transfer requirements under § 9620(h)(3)(A)-(B) are 1) a transfer by deed 2) of contaminated 3) federal property 4) without completing all remedial action 5) or obtaining a covenant from U.S. EPA warranting that all remedial action has been taken and demonstrated to be operating properly and successfully. The elements of the violation for consultation requirements under § 9620(h)(3)(B) are 1) a lease 2) of contaminated 3) federal property 4) without consulting with U.S. EPA that the intended use is consistent with protection of human health and the environment.
Exhibit J contains the
deed transfer documents that Plaintiff requested from Defendant through
a FOIA request. These show
that the Navy purchased from the Army 206 acres of land, including
Landfill 6 & 7, and the property was transferred by deed in 1993.
Exhibit G contains
documents provided to the public by the Navy showing the intent of the
Navy to form a PPV called Midwest Family Housing, LLC. with Landfill 6 & 7 is contaminated federal property. See Exhibit F. As the U.S. EPA indicates, this is a Superfund-Caliber landfill. The land adjacent to Landfill 6 & 7 is also contaminated federal property. During the public comments for the interim action which led to the current landfill cap, the Army stated that the Navy personnel living in the housing adjacent to the landfill were rotated out of the housing every five years because vinyl chloride gas was being emitted into the adjacent housing and the Army and Navy apparently felt that cumulative exposure to vinyl chloride gas only became dangerous at the five year mark. See Exhibit K, Comment and Response 1-2. The administrative record does not contain documents that formed the basis upon which this decision to rotate personnel in and out of the housing was made although the administrative record is supposed to contain all such information. See 40 C.F.R. §300.810 (1999). §9620(h)(3)(A) requires covenants for property on which any hazardous substance was released. CERCLA section 101(22) defines "release" as any "...spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment….” Defendant’s admission that vinyl chloride emission from the adjacent Landfill 6 & 7 was the reason for this rotation policy is enough to require covenants prior to transfer of the adjacent property.
The property transferred by deed from the Army to the Navy in
1993 and then from the Navy to the PPV in 2005, and the property
transferred by lease from the Navy to the PPV in 2005 is all part of the
former No final remedial action has been proposed for Landfill 6 & 7 as of the date of this brief and therefore no final remedial action has been taken. It is only because there is no documentary evidence available to prove a negative that this is asserted upon information and belief. Defendants should be willing to stipulate that it is true no final remedial action has yet been proposed or implemented as CERCLA defines remedial action. No covenants have been issued because no final remedial action has been taken to which U.S. EPA could warrant as complete and operating properly and successfully. Furthermore, Exhibit L is correspondence with U.S. EPA Region 5 indicating that as of September 2005 it had not been consulted as required by 9620(h)(3)(B). Finally, the Army issued what appears to be a new rule, without public notice or comment, changing the definition of regulatory closure for Landfill 6 & 7 and thereby forgoing the required covenants. See Exhibit A. In addition to facts outlined above proving the per se violations, this Court should take notice of the underlying reason for Defendants’ violations. The motive underlying the Army’s decision to forego obtaining the required covenants from U.S. EPA is that the Army’s implementation of the interim cap was so flawed that U.S. EPA stated they would probably not have signed onto it in the first place, would likely not concur with the interim remedy being proposed as the final remedy, and would probably not issue the required covenants. See Exhibit E. The Decision Document, which was supported by public notice and comment, and the final Design Document called for a geocomposite liner to be rolled over the landfill and for several feet of soil to be placed and compacted over the liner. The purpose of this liner was to divert rainwater to the sides of the landfill instead of allowing the water to infiltrate the landfill and mix with the hazardous waste. Additionally, the liner was supposed to direct any landfill gas, including the carcinogenic vinyl chloride gas, to a flaring system to be burned off. The Army was supposed to use screened soil over the geocomposite liner such that the screening would remove all rocks and clay boulders greater than 2” in diameter. Instead, the Army used unscreened soil with rocks and clay boulders greater than 6” in diameter. This caused friction between the Army and U.S. EPA with the latter stating that the danger is the boulders either piercing or thinning the liner, or creating divots that would retain water, possibly through the freeze/thaw cycle, and degrade the liner such that it would not properly keep rainwater out or the landfill gasses contained. See Exhibit E. The Army hired a company to manually pick rocks out of the soil and requested U.S. EPA to concur that this met the spirit of the Design Document. See Exhibit D. Between the time of this request and U.S. EPA’s refusal, the Army issued the new definition of regulatory closure. See Exhibit A. The new definition, “in place and working” replaced operating properly and successfully. Because neither U.S. EPA nor any environmental literature recognize “in place and working”, the Army was free to declare victory and the Navy was free to start redevelopment. See Exhibit M. The Army stopped funding U.S. EPA’s participation in October 2003, about a week after the U.S. EPA letter stating that no concurrence would be forthcoming without further explanation by the Army for the deviations in implementation of the cap. See Exhibits E and F. The ultimate harm from these violations is that but/for the proper and successful operation of a final remedy, Landfill 6 & 7 would still be emitting carcinogenic vinyl chloride gas onto the adjacent property. If, as indicated by U.S. EPA in Exhibit E the cap is not operating properly and successfully, then emissions will once again poison the adjacent property and its residents. This adjacent property is the same that the Navy and its PPV partner appear to be in a mad dash to develop. Applying
the above factors to the D. The Public Interest Is Best Served By Granting Plaintiff An
Injunction Because this is a private attorney general action under the citizen suit provision to enforce the will of Congress under CERCLA, the public interest is being served by this suit. The public also has an interest in providing our Navy personnel with adequate housing but that housing should be afforded the protection of a consultation with U.S. EPA as to the adequacy of the leased property for the purposes proposed. The public interest is best served by requiring the Defendants to adhere to the requirements of § 9620(h)(3) and in enjoining continued redevelopment until they do. E.
This Is An Administrative Review Case Satisfying The Cronin
Test Under Cronin, Plaintiff’s complaint represents one of the three types of administrative review cases warranting a preliminary injunction. 919 F.2d at 446. This Court should grant a preliminary injunction even though the final judgment will likely be a review of the administrative record without trial because the administrative record is so vast and complicated that it is likely Plaintiff will be harmed due to delay. Proof of this size and complexity can be inferred by Defendant’s request for an additional 60 days to reply to Plaintiff’s complaint. This case may also require an evidentiary hearing to reconstruct the ground or contents of the agency’s decision. As stated, Defendants did not add all documents to the administrative record with information forming the basis for its decisions. Specifically, the decision to rotate personnel in the housing adjacent to Landfill 6 & 7 because of vinyl chloride gas emissions and the decision to change the definition of regulatory closure from a covenant from U.S. EPA to “in place and working” do not have any supporting documentation in the record. The absence of these supporting documents do not change the presumption raised by the available documents that all the adjacent property is contaminated federal property. The decision to change the definition of regulatory
closure is invalid on its face because the Army has no rulemaking
authority under CERCLA. Section
120 of CERCLA 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 . . . . “ See 42
U.S.C. § 9620(a)(1). The statute further
provides that “[n]o department, agency, or instrumentality of the These are clear statements of Congressional intent to
deprive the Army of delegated authority to make rules with the force of
law or to engage in notice and comment rulemaking.
The decision to change the definition of regulatory closure
should therefore be entitled to no deference. See
II.
PLAINTIFF SHOULD NOT BE REQUIRED TO POST A BOND BECAUSE IT
WOULD DENY MEANINGFUL ACCESS TO JUDICIAL RELIEF Plaintiff requests that this Court set either no bond
or a nominal bond in accordance with Rule 65(c) of the Federal Rules of
Civil Procedure which make a bond mandatory yet discretionary.
Notwithstanding the mandatory language of the rule, this circuit
has recognized the discretion of district judges to either waive the
requirement or allow the posting of nominal bond.
See Cronin, 919 F.2d at
445; Friends of the Earth, Inc. v.
Brinegar, 518 F.2d 322 (9th Cir. 1975) (cited in Cronin);
Scherr, 466 F.2d at 1035. Plaintiff
has no money at stake in this case and is an individual merely enforcing
his rights to a clean environment under the citizen suit provision of CERCLA. To require any more
than a nominal bond would cause Plaintiff to withdraw this motion and
deny Plaintiff meaningful access to judicial relief. Respectfully submitted, ____________________________ Steven B. Pollack (847) 436-9566
pro se plaintiff
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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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