2003 CPEO Military List Archive

From: themissinglink@eznetinc.com
Date: 6 Jan 2003 16:49:29 -0000
Reply: cpeo-military
Subject: RE: [CPEO-MEF] Debate over Fallon survey
To All Activists Frustrated With The Fight For Higher Cleanup Standards At
DOD Sites:

* The US EPA is the natural lead agency under CERCLA but abrogates it's
duties to the state EPA through a Memorandum Of Agreement(MOU).
* The state EPA abrogates its lead agency status to a fourth branch of
government, the polluter and financially responsible party, through another
MOU although the state EPA retains oversight over the DOD decisions.
* The DOD does not have to address community concerns prior to the legally
mandated public comment period.
* The public cannot bring suit for decisions made until the final Decision
Document is complete which occurs years to a decade after the initial
cleanup analysis begins.
* Courts are deferential to administrative decisions and will only overturn
decisions that are arbitrary and capricious.

So the effect of all this is for the public to be, for all intents and
purposes, excluded from the decision making process and to have little
recourse for decisions made that directly affect them.  This system of
excluding the public until the comment period of the final ROD and then
giving them limited judicial recourse might be appropriate if environmental
decisions were black and white and there were obvious right and wrong
decisions for the courts to address.  But the fact is that future use,
appropriate cleanup standards, risk assessment, and risk tolerance are all
areas that are subject to interpretation and where local, not national,
analysis is likely to yield the most appropriate decisions for the affected
stakeholders.  By centralizing this decision making at the national level
with a federal branch of government that has obvious conflicts of interest
both financial and in polluting culpability, there is never an appropriate
vetting of local concerns.

As this system is set up to favor the polluter, it becomes obvious that even
within this system the DOD takes creative license in what they report to the
public and how they define arbitrary and capricious behavior.  To this end I
have made my case to the Chicago Environmental Law Clinic, a collaboration
between the Illinois Institute of Technology-Kent College of Law and the
Northwestern School of Engineering, and they have recently agreed to
represent my case Pro Bono.  My position is that capping a toxic landfill in
place in an unlined ravine, inside an eroding bluff, sitting above Lake
Michigan is inappropriate, will not be effective, and ignores easily
foreseeable engineering problems and costs.

The judicial branch is the final hope to get the DOD to take a more
commonsense and open approach to the messes they have made.

I would suggest to you, fellow activists, that you contact your nearest law
school and see if they have an environmental clinic that would be willing to
explore legal avenues in your fight to get the DOD to take the proper course
of action.  The law schools love this stuff as it gives the students real
hands on experience.  Law students, while they typically end up working for
a big paycheck, tend to go into the law for idealistic reasons including
environmental justice.

Even if the law school does not have a formalized environmental clinic, you
can contact the environmental law professors to see if there are any
students wanting to have an externship or independent study class to help
you navigate the laws affecting federal facilities and CERCLA.

The following is a list of law schools noted for their environmental

Top 	                          Also Strong
Georgetown University 	        Boston University
New York University 	        Chicago-Kent College of Law
Northwestern University 	  Columbia University (excellent in administrative)
University of Pennsylvania 	  Florida State University
University of Texas, Austin 	  George Washington University
Yale University 	              Indiana University, Bloomington
  	                          Tulane University
University of California, Berkeley
University of Chicago
University of Colorado, Boulder
University of Virginia
University of Washington, Seattle

Be prepared to lay out an opinion that they can advocate through legal
research and analysis.  Do not dump the data on them and assume they have an
opinion.  As Keith Harley of the CELC said, they take cases, not causes.  We
want this cleaned up to this standard.

Here is a link to a searchable database of law schools:

As for myself, my fight over Fort Sheridan has opened my eyes and given me a
new focus.  I am shutting down my retail jewelry store and am going to
attend law school in the fall.  I have already been accepted to DePaul,
Loyola, and Kent and am awaiting word from Northwestern and University of

I would like to see the Third Amendment asserted against DOD pollution
affecting citizen ecology and have them stripped of lead agency status as
being unconstitutional.

Steven Pollack
660 Vernon Ave
Glencoe, IL 60022

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