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United States v. Krilich

ELR Citation: 28 ELR 20201
Nos. 96-3730, 126 F.3d 1035/(7th Cir., 10/15/1997) Aff'd

The court holds that penalties assessed against a developer who failed to meet the wetland mitigation construction deadlines set forth in a consent decree with the U.S. Environmental Protection Agency (EPA) were proper. The consent decree contained a force majeure provision, and a provision requiring any modification of the decree to be in writing. The court first rejects the developer's argument that a wet June prevented grading and excavation, because June was beyond the May deadlines. The court also rejects the developer's argument that construction could not be completed in a timely manner due to lack of water from the upland site, because the development and design of the upland site was to be determined by the wetland and not vice versa. The court next holds that the developer's failure to pursue written modifications of the agreement, especially in the face of clear statements by the EPA that it was not relieving him of deadlines, dooms any argument that the decree was modified. And the court holds that the developer may not use the doctrine of impossibility and frustration after failing to assert a force majeure argument. The doctrine of impossibility and frustration is akin to the force majeure provisions in the decree. Yet, the developer never tried to establish force majeure by returning to court, as the consent decree allowed. The court also holds that estoppel is out of the question. The government may not be estopped on the same terms as other litigants and it will not be estopped by the mistaken statements of an agent unless it is clear that the representations are within the scope of the agent's authority. EPA, in writing, made clear its view that the deadlines were unchanged and that the penalties were building. Finally, at the government's request, the court holds that the penalties should be adjusted downward to reflect the time period for which EPA seeks penalties.

[A decision related to this decision is published at 27 ELR 20663.]

Counsel for Plaintiff
James J. Kubik, Ass't U.S. Attorney
U.S. Attorney's Office
Everett M. Dirksen Bldg.
219 S. Dearborn St., 5th Fl., Chicago IL 60604
(312) 353-5300

Counsel for Defendants
Raymond T. Reott
Jenner & Block
One IBM Plaza, Chicago IL 60611
(312) 222-9350

Before Cummings and Coffey, JJ.