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GLIN==> Fort Sheridan - Government Seeks To Extend 113(h) Bar To Judicial Review

On September 11, 2006, prior to filing a response to my complaint and 120 days since the complaint was filed, the Department of Defense, Army, and Navy filed a motion to dismiss my suit based on the bar to judicial review found in CERCLA 113(h).
This would be a significant extension of precedent because this case does not challenge the cleanup decision, either removal or remedial, at Fort Sheridan.  Rather, this case challenges the right of the Army to transfer contaminated federal property prior to completion of all remedial actions or having first demonstrated to US EPA that the remedy is operating properly and successfully.  These requirements are found in CERCLA itself, 120(h).
The government claims a challenge to the transfer is like a challenge to the remedy selection process.  No court has ever held this but neither has a court held otherwise.  The usual formulation is if the challenge has the practical effect of delaying the cleanup.  In this case it will not.  If the government wins this motion then the Department of Defense is free to transfer contaminated base property to developers without adequately cleaning up the site, without US EPA oversight, and without judicial oversight.
For more information on the issue visit my site at http://www.landfill7.com/fortweb/FortNews.htm
Steven Pollack

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