U.S. v. Fisher, No. 87-2940

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore CUDAHY, POSNER, and EASTERBROOK; POSNER
Citation864 F.2d 434
Parties, 19 Envtl. L. Rep. 20,233 UNITED STATES of America, Plaintiff-Appellee, v. David B. FISHER, Defendant-Appellant.
Docket NumberNo. 87-2940
Decision Date02 December 1988

Page 434

864 F.2d 434
28 ERC 1569, 19 Envtl. L. Rep. 20,233
UNITED STATES of America, Plaintiff-Appellee,
v.
David B. FISHER, Defendant-Appellant.
No. 87-2940.
United States Court of Appeals,
Seventh Circuit.
Argued Sept. 28, 1988.
Decided Dec. 2, 1988.

Page 436

John E. Hughes, Hoeppner, Wagner & Evans, Mark E. Schmidtke, Valparaiso, Ind., for defendant-appellant.

Michael P. Healy, Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Before CUDAHY, POSNER, and EASTERBROOK, Circuit Judges.

POSNER, Circuit Judge.

This appeal from an order granting the Environmental Protection Agency access to David Fisher's land presents procedural and substantive questions arising from the EPA's efforts to enforce the latest episode in the Superfund saga--the Superfund Amendments and Reauthorization Act of 1986, Pub.L. 99-499, 100 Stat. 1613 (Oct. 17, 1986) (SARA), amending the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. Secs. 9601 et seq.

Fisher owns a 230-acre tract, mostly farmland (so we'll call it "the farm"), in northern Indiana. Before 1980 he had--through Fisher-Calo, a corporation he controls--used a portion of the land for the reclamation of solvents; the main site of Fisher-Calo's reclamation business, however, was about a half mile from the farm. In 1980 the EPA filed suit against Fisher and Fisher-Calo in the federal district court for the Northern District of Indiana under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. Secs. 6901 et seq., which authorizes the EPA to seek equitable relief against any handling, treatment, disposal, etc. of hazardous wastes that "may present an imminent and substantial danger to health or the environment." 42 U.S.C. Sec. 6973(a). The EPA was concerned that hazardous wastes had leaked into groundwater from some of the 700 to 1,000 drums in which wastes from the reclamation business were stored. These drums were buried both under the farm and under the site of Fisher-Calo's main reclamation facility. Groundwater tests revealed contamination from chlorinated solvents, cyanide, and other toxic substances; and the contractor whom Fisher had hired to bury the drums informed the EPA that Fisher had told him to puncture as many drums as he could when burying them and that he had done so.

In 1982 Fisher and the EPA agreed to the entry of a consent decree in the Indiana litigation, under which Fisher would monitor the groundwater at three test wells (one on the farm) to "ensure the gradual and steady natural purging of the ground water." The decree authorized the EPA, "based on testing results or the receipt of new evidence, to apply to the court for additional relief as appears necessary to protect human life or the environment." The decree also authorized the EPA to go on both tracts to check on the testing. It contained a provision continuing the district court's jurisdiction in order to assure compliance with the consent decree, but the provision was superfluous: when a court issues an injunction, it automatically retains jurisdiction to enforce it. McCall-Bey v. Franzen, 777 F.2d 1178, 1183 (7th Cir.1985); cf. 11 Wright & Miller, Federal Practice & Procedure Sec. 2961, at p. 599

Page 437

(1973). In any event, the EPA has not sought further relief from the district court for the Northern District of Indiana.

On June 27, 1987, the EPA brought a brand-new suit--this suit--against Fisher. The suit is concerned solely with the farm; Fisher-Calo is not a party. The suit was filed in the federal district court for the Northern District of Illinois under CERCLA, as amended by SARA, rather than under RCRA, and behind it lay various events since the entry of the consent decree in 1982. Late that year Fisher-Calo's main site had earned the dubious distinction of being placed on the EPA's National Priorities List, a list of the nation's most hazardous toxic-waste sites. See 42 U.S.C. Sec. 9605(a)(8)(B); 42 C.F.R. Sec. 300.66. Almost 1,000 sites are now listed; Fisher-Calo's site is number 142. 40 C.F.R. pt. 300, App. B, at p. 884. Inclusion on the National Priorities List both authorizes the use of Superfund money to clean up the site and requires the site's past and present owners to make good the cost to the fund. See Northside Sanitary Landfill, Inc. v. Thomas, 849 F.2d 1516, 1517-18 (D.C.Cir.1988).

After Fisher-Calo's main site had made the National Priorities List, the EPA conducted additional tests at the site to determine whether further clean-up measures beyond those required by the consent decree might be necessary. Fisher-Calo did not oppose this testing. The EPA's manager for the remedial project, in visits to the site and also to the farm, saw discarded waste drums, stained soil, and distressed vegetation, and he smelled the odors of various hazardous substances. On the basis of his reports the EPA decided that it needed greater access to the farm than the consent decree authorized, in order to investigate fully the nature and extent of the soil and groundwater contamination and decide on appropriate remedial measures at either the farm or Fisher-Calo's main site. When Fisher refused to allow the additional access sought to the farm, the EPA filed this suit.

CERCLA, as amended by SARA (please forgive our heavy use of acronyms, but it is unavoidable because the full names of the statutes are both cumbersome and uninformative), authorizes the EPA to enter property when "there is a reasonable basis to believe there may be a release or threat of release of a hazardous substance or pollutant or contaminant." 42 U.S.C. Sec. 9604(e)(1). The release (actual or threatened) need not be on that property; the statute authorizes...

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48 practice notes
  • Bhalerao v. Ill. Dep't of Fin. & Prof'l Regulations, Case No. 11–CV–7558.
    • United States
    • U.S. District Court — Northern District of Illinois
    • November 29, 2011
    ...Seventh Circuit found that res judicata did not bar agency action under statutory amendments that conflicted with a prior consent decree. 864 F.2d 434, 439 (7th Cir.1988). The court noted that the Superfund amendments under which that suit was filed were enacted four years after the consent......
  • US EPA v. Environmental Waste Control, Inc., No. S87-55.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • April 17, 1989
    ...a consent decree generally is treated as a final judgment on the merits and accorded res judicata effect. United States v. Fisher, 864 F.2d 434, 439 (7th Cir.1988); United States v. Athlone Industries, Inc., 746 F.2d at 983 n. 5 (3rd Cir.1984). Amalgamated Sugar Co. v. NL Industries, Inc., ......
  • Hegna v. Islamic Revolutionary Guard Corps, Civil Action No. 08–274 (RC).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • December 10, 2012
    ...exception to the rule of res judicata. Alvear–Velez places the heaviest [908 F.Supp.2d 132]emphasis on United States v. Fisher, 864 F.2d 434 (7th Cir.1988) (Posner, J.), which involved the EPA's enforcement of several environmental statutes. In 1982, the agency obtained a consent decree und......
  • O'CONNOR v. Corps of Engineers, US Army, Civ. No. H91-172.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • June 30, 1992
    ...rests within the exclusive jurisdiction of the Court of Claims. Ruckelshaus, 467 U.S. at 1016, 104 S.Ct. at 2879; United States v. Fisher, 864 F.2d 434, 439 (7th Cir.1988); Century Federal Savings Bank v. United States, 745 F.Supp. 1363, 1370 (N.D.Ill.1990). Consequently, this court lacks j......
  • Request a trial to view additional results
48 cases
  • Bhalerao v. Ill. Dep't of Fin. & Prof'l Regulations, Case No. 11–CV–7558.
    • United States
    • U.S. District Court — Northern District of Illinois
    • November 29, 2011
    ...Seventh Circuit found that res judicata did not bar agency action under statutory amendments that conflicted with a prior consent decree. 864 F.2d 434, 439 (7th Cir.1988). The court noted that the Superfund amendments under which that suit was filed were enacted four years after the consent......
  • US EPA v. Environmental Waste Control, Inc., No. S87-55.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • April 17, 1989
    ...a consent decree generally is treated as a final judgment on the merits and accorded res judicata effect. United States v. Fisher, 864 F.2d 434, 439 (7th Cir.1988); United States v. Athlone Industries, Inc., 746 F.2d at 983 n. 5 (3rd Cir.1984). Amalgamated Sugar Co. v. NL Industries, Inc., ......
  • Hegna v. Islamic Revolutionary Guard Corps, Civil Action No. 08–274 (RC).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • December 10, 2012
    ...exception to the rule of res judicata. Alvear–Velez places the heaviest [908 F.Supp.2d 132]emphasis on United States v. Fisher, 864 F.2d 434 (7th Cir.1988) (Posner, J.), which involved the EPA's enforcement of several environmental statutes. In 1982, the agency obtained a consent decree und......
  • O'CONNOR v. Corps of Engineers, US Army, Civ. No. H91-172.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • June 30, 1992
    ...rests within the exclusive jurisdiction of the Court of Claims. Ruckelshaus, 467 U.S. at 1016, 104 S.Ct. at 2879; United States v. Fisher, 864 F.2d 434, 439 (7th Cir.1988); Century Federal Savings Bank v. United States, 745 F.Supp. 1363, 1370 (N.D.Ill.1990). Consequently, this court lacks j......
  • Request a trial to view additional results

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