Court backs right to enjoin under CERCLA

[Lenny Siegel <lsiegel@cpeo.org>]

FOR IMMEDIATE RELEASE

Federal Appeals Court Affirms Citizens' Right To Sue Over Inadequate 
Military Base Cleanups.

Ninth Circuit Hands Down Decision in Fort Ord Toxics Project and California
Public Interest Research Group v. California Environmental Protection
Agency and United States Army

In a decision that is the first of its kind in the nation, a federal
appeals court held that citizens who live near polluted military bases may
sue the military in order to obtain better environmental cleanups.

"Over the years, the U.S. Military has polluted millions of acres of land
at thousands of military bases across the nation with highly toxic
substances," says Curt Gandy, executive directory of the Fort Ord Toxics
Project ("FOTP"), one of the plaintiffs in the case.  "In addition, the
military has refused to adequately clean up its toxic legacy.  At one
base after another, the military has taken meager and inadequate steps to
clean up the pollution, believing that it was protected against lawsuits
that challenge the cleanups.  This decision changes that."

Johnathan Kaplan of the California Public Interest Research Group
("CalPIRG"), a co-plaintiff in the case, said, "This is a vindication of
citizens' rights to challenge inadequate cleanup plans at military bases
throughout the United States.  This decision provides millions of people
across the country who live in the shadow of toxic pollution at military
bases with a right to sue the military in order to obtain a cleanup that 
protects their health and the health of their children."

The decision was handed down on September 2, 1999, by the federal Ninth
Circuit Court of Appeals in San Francisco.

The court's decision, written by Judge Charles Wiggins, acknowledges
that  it is the first of its kind in the nation.  The opinion states, "no
[other] circuit court has published a decision reaching this question."

The decision states that the right to challenge Superfund cleanups at
federally owned property is broader than the right to challenge such
cleanups at private sites.  The court states that the decision will "allow
plaintiffs to sue to enjoin many cleanups on federal property even though
plaintiffs could not sue to enjoin a similar cleanup on private
property."

The plaintiffs filed suit against the U.S. Army and the California
Environmental Protection Agency in mid-1997 in an attempt to halt the Army
from dumping hazardous waste into an unlined landfill on Fort Ord, a former
Army base located near Monterey, California that has been designated as a
high priority cleanup site under the federal Superfund statute.  The Army
is using the landfill as a disposal site for hazardous wastes excavated 
from the Fort Ord site during the Superfund cleanup process.  The
plaintiffs allege that the wastes threaten to contaminate an underground
aquifer that serves as a source of drinking water for the nearby City of
Marina, California.

The Army filed a motion to dismiss the case, claiming that the Superfund
statute barred the suit.  Although the trial court agreed with the Army,
and dismissed the case, the appeals court overturned the trial court's
decision.  The Ninth Circuit ruled that the Superfund statute does not
deprive federal courts of jurisdiction to hear lawsuits which challenge the
adequacy of remedial actions at highly polluted military bases and other 
sites which are owned or operated by the federal government.

FOTP is a non-profit corporation organized by residents living on and
around Fort Ord to ensure that the cleanup of environmental pollution of
the former Army base protects human health and the environment.

CalPIRG is a California-wide educational and issue-advocacy organization
engaged in research, lobbying, and citizen organizing to encourage
protection and preservation of the public health and the environment.

The plaintiffs were represented by attorneys Scott Allen of San Francisco
and Charles Caldart and David Nicholas of the Boston-based National
Environmental Law Center.

For Further Information Contact:

Curt Gandy, Fort Ord Toxics Project (831) 641-5353
Scott Allen, Attorney for Plaintiffs (415) 421-3200
Charles Caldart, Attorney for Plaintiffs (617) 422-0880