U.S. Court of Appeals Dismisses EPA Suit Threatening to Destroy Elderly Wauconda Man's Property

Apr 20, 2001, 01:00 ET from Mayer, Brown & Platt

    CHICAGO, April 20 /PRNewswire Interactive News Release/ -- In an
 unprecedented decision, the U.S. Court of Appeals in Chicago dismissed an EPA
 Superfund suit that would have given the agency the authority to destroy a
 74-year-old Wauconda, Illinois man's property even if contamination on the
 property were trivial.
     On April 18, The U.S. Court of Appeals upheld a federal district court's
 finding that the agency acted "arbitrarily and capriciously" in seeking to
 enter John Tarkowski's property, dig up the property looking for drums and
 removing materials, including Tarkowski's personal property.
     The court rejected the government's argument that courts are powerless to
 review EPA's cleanup choices, noting that EPA "sought a blank check from the
 court. It sought authorization to go onto Tarkowski's property and destroy the
 value of the property regardless how trivial the contamination that its tests
 disclosed."  It added:  "[i]n effect, the agency is claiming the authority to
 conduct warrantless searches and seizures, of a particularly destructive sort,
 on residential property, despite the absence of any exigent circumstances.  It
 is unlikely, even apart from constitutional considerations, that Congress
 intended to confer such authority on the EPA."
     Tarkowski is indigent and lives on a 16-acre site in Wauconda. The court
 noted Tarkowski had "built his house out of surplus materials, and his yard is
 full of what his upscale neighbors regard as junk."  Tarkowski, a disabled
 building contractor, had been harassed by his neighbors for many years. In
 1979, the EPA concluded Tarkowski's property posed no environmental hazard.
 Again in 1995, the EPA rated the property a zero on its hazard scale. In 1997,
 state authorities at the EPA's request, took soil and water samples but found
 no evidence of legally significant contamination.
     The opinion states that "[w]e do not know whether Tarkowski's angry
 neighbors exert a malign influence over the local office of the EPA, but it is
 to protect citizens against arbitrary and overreaching actions by government
 bureaucrats that courts are empowered to prevent arbitrary and capricious
 interferences with property rights."
     Tarkowski's attorney, Mark Ter Molen, of Mayer, Brown & Platt, who handled
 the case on a pro bono basis, said the decision is a victory for property
 owners. "The EPA sought to dig up and destroy Mr. Tarkowski's property without
 any evidence of an environmental hazard. The court's decision should provide
 comfort that the EPA can not cavalierly destroy someone's property in
 conducting an environmental witch hunt."
 
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SOURCE Mayer, Brown & Platt
    CHICAGO, April 20 /PRNewswire Interactive News Release/ -- In an
 unprecedented decision, the U.S. Court of Appeals in Chicago dismissed an EPA
 Superfund suit that would have given the agency the authority to destroy a
 74-year-old Wauconda, Illinois man's property even if contamination on the
 property were trivial.
     On April 18, The U.S. Court of Appeals upheld a federal district court's
 finding that the agency acted "arbitrarily and capriciously" in seeking to
 enter John Tarkowski's property, dig up the property looking for drums and
 removing materials, including Tarkowski's personal property.
     The court rejected the government's argument that courts are powerless to
 review EPA's cleanup choices, noting that EPA "sought a blank check from the
 court. It sought authorization to go onto Tarkowski's property and destroy the
 value of the property regardless how trivial the contamination that its tests
 disclosed."  It added:  "[i]n effect, the agency is claiming the authority to
 conduct warrantless searches and seizures, of a particularly destructive sort,
 on residential property, despite the absence of any exigent circumstances.  It
 is unlikely, even apart from constitutional considerations, that Congress
 intended to confer such authority on the EPA."
     Tarkowski is indigent and lives on a 16-acre site in Wauconda. The court
 noted Tarkowski had "built his house out of surplus materials, and his yard is
 full of what his upscale neighbors regard as junk."  Tarkowski, a disabled
 building contractor, had been harassed by his neighbors for many years. In
 1979, the EPA concluded Tarkowski's property posed no environmental hazard.
 Again in 1995, the EPA rated the property a zero on its hazard scale. In 1997,
 state authorities at the EPA's request, took soil and water samples but found
 no evidence of legally significant contamination.
     The opinion states that "[w]e do not know whether Tarkowski's angry
 neighbors exert a malign influence over the local office of the EPA, but it is
 to protect citizens against arbitrary and overreaching actions by government
 bureaucrats that courts are empowered to prevent arbitrary and capricious
 interferences with property rights."
     Tarkowski's attorney, Mark Ter Molen, of Mayer, Brown & Platt, who handled
 the case on a pro bono basis, said the decision is a victory for property
 owners. "The EPA sought to dig up and destroy Mr. Tarkowski's property without
 any evidence of an environmental hazard. The court's decision should provide
 comfort that the EPA can not cavalierly destroy someone's property in
 conducting an environmental witch hunt."
 
                     MAKE YOUR OPINION COUNT -  Click Here
                http://tbutton.prnewswire.com/prn/11690X04296068
 
 SOURCE  Mayer, Brown & Platt