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United States v. Fisher

Citation: 19 ELR 20233
No. No. 87-2940, 864 F.2d 434/28 ERC 1569/(7th Cir., 12/02/1988)

The court affirms an order under § 104(e) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) granting the Environmental Protection Agency (EPA) access to defendant's land to conduct soil and groundwater tests. The court first holds that the district court did not err by failing to transfer the case to another district court that had previously approved a consent decree involving the same contamination, since this case is brought in a district with jurisdiction and convenient to the parties, and the other district court had only minimal involvement in approving the consent decree. The apparently cursory review that the district judge gave to the defendant's filings did not deny him due process, since CERCLA establishes a very liberal standard for injunctions to assure EPA access to contaminated sites and this standard was clearly satisfied here. Moreover, there is no unconstitutional taking, since there is no indication that EPA plans to engage in tests that will be sufficiently disruptive of the property. If that should happen, a monetary remedy is the exclusive relief. Finally, although the general rule is that a consent decree bars the filing of new litigation elsewhere between the same parties over the same subject matter, this litigation is not barred by the consent decree already entered in another federal district. There may have been hazardous waste leakage after the earlier consent decree that would create a fresh cause of action. Moreover, in the 1986 CERCLA amendments Congress directed EPA to take peremptory steps to protect public health; EPA has no authority to refuse to enforce CERCLA just because its staff made earlier commitments.

Counsel for Plaintiff-Appellee
Michael Healy, Jacques B. Gelin
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2757

Nancy Needles, Linda Wawzenski, Ass't U.S. Attorneys
219 Dearborn, 15th Fl., Chicago IL 60604
(312) 353-5300

Counsel for Defendant-Appellant
John Hughes, Mark Schmidtke
Hoeppner, Wagner & Evans
P.O. Box 2357, 103 E. Lincoln Way, Valparaiso IN 46384
(219) 464-4961

Before CUDAHY, POSNER, and EASTERBROOK, Circuit Judges.