Fraud on the Court

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:

1. 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).
2. 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.
3. 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.
4. 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.
5. 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.
6. 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. .
7. 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.