Past Pollution

If you are dealing with a site that is not currently operating but contains hazardous waste from prior operations then you will be dealing with CERCLA.  This environmental statute creates liability for past and present owners of the property, specifically including the federal government.  Most people believe the US EPA will administer these sites but Executive Order 12,580 lets federal agencies administer the cleanup at sites of their own creation and where the chosen remedy comes out of their own budget. EPA simply oversees the documents and analysis of the agency.  This creates conflicts where the financially responsible party is making decisions affecting their own pocketbooks.  At Blue Eco, we watch over the federal polluters to make sure they are properly applying the law to themselves. 

Congress purports to empower citizens to bring suit under this statute for violations that are not being diligently prosecuted by the federal violators. The federal courts, however, have not always followed the law in this regard. The US EPA is required to concur that all remedies are in place and operating properly and successfully prior to any transfer of contaminated federal property. In a case at Fort Sheridan where US EPA does not concur that the cap on Landfill 7 is operating properly and successfully, the Army and Navy transferred the property anyways.

Blue Eco brought suit for this transfer (and development of homes surrounding the landfill) of property without the concurrence of US EPA. The Seventh Circuit ruled, however, that the part of the statute barring suits to cleanup decisions before they are complete also barred suit to property transfers where the cleanup is not complete.

This decision is one that allows federal property transfers to go forward without requiring protective cleanups so long as the agency is still working on the cleanup, the very thing Congress meant to preclude by requiring US EPA concurrence with the protectiveness of a final cleanup.