Trivial Pursuit

Without evidence of legally significant contamination, the government was unjustified in filing suit to gain access to private property for a response action under the Superfund law, according to a ruling by a federal district court. [U.S. v. Tarkowski, No. 99 C 7308, N.D.Ill., Nov. 26, 2001] Consequently, the victorious property owner can recoup his litigation costs.

John Tarkowski is an elderly, indigent resident of a 16-acre tract situated in Wauconda, Ill., an affluent community northwest of Chicago. Until he was disabled, he worked as a building contractor. Using surplus materials, he built his house many years ago when the area was a rural backwater. His yard is filled with what his upscale neighbors regard as junk — wooden pallets, tires, empty drums, batteries, paint cans and other construction materials.

For more than 20 years, Tarkowski's neighbors had harassed him and had complained to environmental officials. The U.S. Environmental Protection Agency (EPA) inspected his property in 1979, but concluded that it did not pose any environmental hazard. In 1995, EPA rated the property zero on its hazard rating scale. Two years later, state authorities took soil and water samples and found no noteworthy contamination.

In 1998, EPA took additional samples of soil and materials on his property, finding only trace amounts of contaminants that, in fact, were comparable to levels found in surrounding properties and did not indicate any release. Nevertheless, EPA filed suit against Tarkowski alleging an “imminent and substantial endangerment to … public health … and the environment” based on an actual or possible release of hazardous substances. EPA sought an order to gain access to the site for investigative and remedial purposes. After hearing the evidence, a federal district court dismissed EPA's suit. An appeals court upheld the ruling, castigating the agency's conduct and judgment. [248 F.3d 596 (7th Cir. 2001)]

Tarkowski petitioned the district court for an award of attorney's fees and expenses under the Equal Access to Justice Act. The law allows certain parties who prevail against the federal government in a lawsuit to recover their litigation expenses unless the government's position was reasonable.

Finding EPA's stance totally unjustified, the district judge said, “There was no evidence of legally significant contamination and … the government's claim of an imminent and substantial endangerment was factually baseless.” EPA cannot reasonably insist that “if a hazard was found, no matter how small, it had the right to do whatever it wanted on Tarkowski's property,” he added.

“It is to protect citizens against … overreaching actions by government bureaucrats that courts are empowered to prevent arbitrary and capricious interference with property rights,” said the judge, again citing the appeals court. “The government's position … ‘would give the agency in effect an unlimited power of warrantless searches and seizures [which the Superfund law] does not contemplate and the Fourth Amendment would almost certainly forbid,’” he concluded with yet another reference to the appellate opinion.

The columnist is a Washington, D.C., attorney and serves as general counsel of the Solid Waste Association of North America.

The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail: [email protected].