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Position Paper #2:
Fraud on the Court
by the PCB Alliance
This position paper concerns the fraud perpetrated upon the U.S. District
Court of Southern Indiana by the attorneys for the Consent Decree Parties.
The following states the reasons that we feel the U.S. Distict Court
of Southern Indiana (and thus we the citizens) have been defrauded by the
EPA. Unfortunately the InPirg/COPA lawsuit which alleges such fraud to the
court has lain on the desk of Judge Dillon, with no action taken.
The court may "set aside a judgment for fraud upon the court",
and may provide relief from a final judgment "for any other reason
justifying relief from operation of the judgment." Fraud on the court
occurs when the judicial machinery itself has been defiled, such as when
an attorney, who is an officer of the court, is involved in the perpetration
of a fraud or makes material misrepresentations to the court. We contend
that an attorney's loyalty to the court, as an official thereof, demands
integrity and honest dealing with the court, and when the attorney departs
from this standard he perpetrates a fraud upon the court.
The attorneys for the parties worked a fraud not only on the public but
also directly on the Court. The COPA/INPIRG suit proves that critical assertions
made by the parties' attorneys as fact to the Court are patently false.
The parties' attorneys fraudulently misled the Court by making material
misrepresentations directly to the Court, upon which misrepresentations
the Court relied including:
- That all known PCB contaminated sites were included in the agreement
-- when in fact the Westinghouse plant property itself and other known
PCB contaminated sites were intentionally excluded from the agreement.
(We can supply evidence that such material representations were in fact
false).
- That newly discovered sites would be included in the consent decree
for cleanup in a timely manner -- when in fact there are many PCB sites
that were excluded from the agreement and have been either ignored or acted
on outside the agreement with inadequate site assessment and inadequate
public notice and involvement. One prime example of inadequate EPA assessment
of other PCB sites and EPA misrepresentation to the public and public officials
regarding the handling of such sites in Bloomington is the Fell Iron &
Metal Salvage Yard case. The Fell site was known to be highly contaminated
prior to the June 21, 1985 status conference. It was not included in the
consent decree but later became the subject of an EPA administrative order
requiring a removal action. The public and officials desired that an RI/FS
be done to examine cleanup alternatives and environmental impacts of each
prior to EPA/Westinghouse action at the site. However, EPA responded to
the County officials' concerns in writing, falsly stating that EPA had
no authority to conduct an RI/FS at the site since the Fell site was not
on the NPL. This was a blatant misrepresentation by EPA as EPA has acknowledged
its authority to conduct an RI/FS on non-NPL sites.
- That the proposed MSW fueled incinerator was a safe and proven remedy
which would emit no harmful chemicals including dioxin -- when in fact
MSW fueled hazardous waste incineration has never been attempted anywhere
before, MSW is the most experimentaland least likely to be effective incineration
fuel available, the concept has been explicitly rejected by EPA for use
at a Superfund site in another region, and risk assessment based on recent
EPA data and calculations demonstrate that exposures, through contamination
of the local food chain, to the deadly chemical dioxin and other pollutants
emitted from the proposed experimental incinerator will result in hundreds
of cancer deaths.
- That there was little public opposition to the agreement -- when in
fact there was and is massive, informed, organized opposition to the plan
with a clear majority of the public and local officials opposed to the
proposed MSW fueled incinerator, including a majority of the business and
university community.
- That the EPA's official agency interpretation of applicable regulations
and statutes was that EPA had no obligation to perform a written analysis
of the feasibility and environmental impacts of alternative remedies and
to submit such a written analysis to the public for review and comment
prior to EPA selecting the final remedy for the Superfund sites -- when
in fact EPA's own policy documents and federal register notices from 1982
to the present acknowledge this obligation, and in fact EPA had actually
acted on this acknowledged legal obligation by initiating workplans for
such studies on the Bloomington sites but was persuaded in secret negotiations
to cancel them.
- That the proposed Consent Decree on its face, and as implemented by
the parties, would require compliance with all applicable law including
state and federal environmental law such as the Resource Conservation and
Recovery Act (RCRA), and the Toxic Substances Control Act (TSCA) -- when
in fact in 1984 Regional EPA officials actually sought in writing permission
from EPA headquarters officials to allow them to intentionally waive fundamental
requirements of both RCRA and TSCA, and in fact EPA subsequently approved
the proposed decree knowing that the terms of the decree violated those
very federal law requirements, and in fact EPA had written policy documents
which acknowledged that failure to complete the RI/FS studies, for which
it had initiated workplans that it later canceled in Bloomington, and failure
to take public comment on these studies prior to signing the agency record
of decision (called an enforcement decision document) was a violation of
both the Superfund statute and regulations and the National Environmental
Policy Act. .
- That the proposed decree incorporated a remedy chosen in compliance
with all applicable procedural law and that this remedy was in compliance
with all applicable substantive law, despite the EPA's awareness of the
legal requirements and despite the agency's awareness that these requirements
were not satisfied by the parties actions and the proposed decree.
The PCB Alliance is group of Monroe County Citizens, dedicated to a safe
and sane remediation of the our PCB pollution problems. |
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