In the
United States Court of Appeals
For the Seventh Circuit

Nos. 00-2393 & 00-2473

United States of America,

Plaintiff-Appellant, Cross-Appellee,

v.

John Tarkowski,

Defendant-Appellee, Cross-Appellant.



Appeals from the United States District Court
for the Northern District of Illinois, Eastern
Division.
No. 99 C 7308--Matthew F. Kennelly, Judge.


Argued February 14, 2001--Decided April 18,
2001




  Before Posner, Coffey, and Ripple, Circuit
Judges.

  Posner, Circuit Judge. The government
appeals from the dismissal of a suit by
which the EPA sought access to the
property of John Tarkowski, pursuant to
section 104(e) of the Superfund statute
(Comprehensive Environmental Response,
Compensation, and Liability Act of 1980
(CERCLA)), 42 U.S.C. sec. 9604(e), for
the purpose of "remediation,"
specifically, of investigating possible
environmental hazards and removing
quantities of Mr. Tarkowski’s personal
property and other materials. The judge
concluded that the action for which the
EPA sought authorization would be
arbitrary and capricious in the
circumstances presented by this case.

  Mr. Tarkowski is an elderly, impecunious
man who lives on a 16-acre tract in what
was once a rural backwater in Wauconda,
Illinois but is now an affluent suburb.
He may be land rich as a result of the
development of the area that surrounds
his 16-acre tract, but this is unclear;
he may not actually own the tract,
although his right to its possession is
not in doubt.

  He built the house in which he lives out
of surplus materials, and his yard is
full of what his upscale neighbors regard
as junk, such as wooden pallets that he
burns for heat because he can’t afford
gas, tires that he uses to build
retaining walls, drums for building a
culvert for water runoff, barrels,
batteries, paint cans, and other
construction materials and supplies, some
of them the detritus of a failed project
to construct a subdivision on the tract;
before being disabled by injuries many
years ago, Tarkowski was a building
contractor.

  Tarkowski’s neighbors have been
harassing him for many years. In 1978 a
letter was left in his mailbox which says
"Hey polock [sic] we don’t want any white
trash or white niggers here. We want you
out--Now." The next year the neighbors
complained about the condition of
Tarkowski’s property to the EPA, which
the same year made a preliminary
assessment and concluded that the
property posed no environmental hazard
despite its unsightliness. In 1995 the
EPA rated the property a zero on its
hazard rating scale. In 1997 state
authorities at the EPA’s request took and
examined various soil and water samples
on the property. Tests on the samples
received traces of lead, but only in an
area in which Tarkowski does some welding
for personal, noncommercial use. Other
metals, and pesticides, revealed by the
tests were likewise consistent with
household use; and other chemicals that
the tests revealed could have come from
petroleum products, which are exempt
under section 101(14) of CERCLA, 42
U.S.C. sec. 9601(14). In short, there was
no evidence of legally significant
contamination.
  The following year, however, the EPA,
pursuant to an access order similar to
the one sought in this case, took
additional samples on Tarkowski’s
property, some from the soil, some from
drums, and one from a piece of pipe
insulation. Only trace amounts of
contaminants were found, and there was no
indication that they exceeded the levels
of these contaminants found in the
surrounding properties none of which was
deemed to pose any kind of environmental
hazard or to require or justify remedial
efforts. Nevertheless the EPA brought
this suit, claiming without furnishing
any factual basis for the claim that "the
environmental contamination at the Site
[Tarkowski’s property] presents an
imminent and substantial endangerment to
the public health, welfare and the
environment arising from the actual
release or threat of release of hazardous
substances from the Site." The relief
sought was an order forbidding Tarkowski
to prevent the EPA from going onto his
land in order to fence it (apparently to
keep children from straying onto it),
conduct additional tests, install
groundwatermonitoring wells, dig up the
property looking for any buried drums
and, if they were found, remove them,
remove contaminated soil, and cart away a
variety of objects lying on the property,
including drums and other
containers,batteries, and materials
containing asbestos, all these objects
being Tarkowski’s personal property. The
EPA is thus seeking the access order for
a mixture of investigative and remedial
purposes; we need not consider whether,
if only the former were sought, the EPA
has made a sufficient showing to justify
such an order, as in United States v.
Fisher, 864 F.2d 434, 438 (7th Cir.
1988)--which was, however, a much
stronger case for such an order than this
one is. But we will have to consider
whether a request for an order limited to
remediation would have a different status
in the district court.

  The EPA takes the extreme position that,
provided it has probable cause to believe
that there is even a thimbleful of a
hazardous substance spilled in a person’s
yard, or we suppose even a drop, it has
an absolute right to an access order
regardless of the action it proposes to
take once it gains that access, such as
excavating the entire yard and removing
the soil to a depth of ten feet, thus
rendering the property wholly useless to
its owner. The court not only must, the
EPA argues, issue the order no questions
asked; the court cannot limit the extent
of the remedial measures that the EPA can
take once it gains access. All the EPA
will concede is that if it wanted to do
the excavation at 3 a.m., or wanted to
use a stick of dynamite to dislodge the
topsoil, the court might refuse to order
access. Similarly, while the agency
claims the absolute right to an access
order if it learns that a single flake of
asbestos is lying on the floor of
Tarkowski’s house, it acknowledges that
the court could forbid it to use a
battering ram to gain access to the house
for purposes of removing the flake.

  The EPA makes no pretense that the
position it advocates serves a public
purpose, strikes a reasonable balance be
tween property rights and community
rights, rationally advances the agency’s
mission, or even comports with the
limitations that the Constitution has
been interpreted to place on federal
regulation of purely local activities,
not to mention the limitations that the
Fourth Amendment places on searches and
seizures. Access orders are orders to
seize as well as search, because of the
control that the agency exerts over the
property even when it is just doing test
borings and other investigative work.
That such orders must comply with the
Fourth Amendment is apparent from
Marshall v. Barlow’s, Inc., 436 U.S. 307
(1978). Rather, the EPA defends its
position as ineluctably compelled by
statutory language that we have now to
examine in order to determine whether the
case can be decided without our having to
reach any constitutional issues.

  Sections 104(e)(1), (3), and (4) of
CERCLA, 42 U.S.C. sec.sec. 9604(e)(1),
(3), (4), authorize the EPA to go upon a
property to inspect or to obtain samples
for testing (sec. 104(e)(4)) or "to
effectuate a response action" (sec.
104(e)(3)(D)), "if there is a reasonable
basis to believe there may be a release
or threat of release of a hazardous
substance or pollutant or contaminant."
sec. 104(e)(1). Section 104(e)(5)(B)(i)
provides that if consent to the entry is
denied, the government may obtain a
judicial order preventing interference
with the entry (what we are calling an
access order) "unless under the
circumstances of the case the demand for
entry or inspection is arbitrary and
capricious, an abuse of discretion, or
otherwise not in accordance with law."

  The requirement of reasonable basis is
easily satisfied, and is satisfied here,
as it would be in our thimbleful and
flake examples, as there is nothing in
section 104(e)(1) about magnitude. But
this makes it all the more important to
consider whether the agency’s proposed
action is unreasonable (arbitrary and
capricious). The EPA may be reasonable,
though we doubt it, in wanting to conduct
additional tests on Tarkowski’s property-
-that would depend in part on how
disruptive the tests would be to
Tarkowski’s use of the property. Cf.
United States v. Fisher, supra, 864 F.2d
at 438. But given what the agency now
knows or has reason to know, which is
that the property although unsightly is
not a site or source of even a slight
environmental hazard, for it to want to
go ahead and rip up the property without
completing its inspection bespeaks a
precipitance that would be warranted only
by emergency conditions. The EPA assures
us that it won’t undertake any drastic
remedial action until it completes new
tests. But, if so, why is it not seeking
merely an order to allow it to go onto
the property to conduct tests that would
not unreasonably interfere with
Tarkowski’s use and enjoyment of his
property? The agency is adamant in the
assertion of a right to carry out
remedial action whatever the test results
are, or indeed before completing or for
that matter beginning any further tests.
We do not know whether Tarkowski’s angry
neighbors exert a malign influence over
the local office of the EPA, but it is to
protect citizens against arbitrary and
over-reaching actions by government
bureaucrats that courts are empowered to
prevent arbitrary and capricious
interferences with property rights. It is
unreasonable for the EPA to insist on a
judicial carte blanche to embark on
drastic remedial action in advance of
obtaining any rational basis for
believing there is any danger to the
environment that would warrant such
action.

  Against all this the EPA directs us to
section 113(h) of CERCLA, which provides
that "no Federal court shall have
jurisdiction . . . to review any
challenges to removal or remedial action
selected under section [104]" except in a
suit under section 310, 42 U.S.C. sec.
9659, complaining that "the removal or
remedial action taken under section" 104
"was in violation of any requirement" of
the statute (emphasis added). Although
section 310 does not read like a
provision designed for the benefit of
people subjected to such action, but
rather seems to be a provision designed
for people who think the remedial action
didn’t go far enough (it is captioned
"citizens suits"), and it is in fact
usually invoked by such people, see,
e.g., Schalk v. Reilly, 900 F.2d 1091,
1094-95 (7th Cir. 1990); Clinton County
Comm’rs v. EPA, 116 F.3d 1018, 1024-25
(3d Cir. 1997) (en banc); Conservation
Law Foundation of New England, Inc. v.
Reilly, 950 F.2d 38, 40 (1st Cir. 1991),
it has been interpreted to allow a person
facing potential liability under CERCLA
to obtain an injunction compelling a
person responsible for the pollution to
comply with the statute. AM Int’l, Inc.
v. Datacard Corp., DBS, 106 F.3d 1342,
1349 (7th Cir. 1997); Petrovic v. Amoco
Oil Co., 200 F.3d 1140, 1153 (8th Cir.
1999). But that is a remedy of no utility
to Tarkowski. Section 310, moreover, does
not authorize monetary relief, and while
Tarkowski might have a defense in the
unlikely event that the EPA sought under
42 U.S.C. sec. 9607 to recover the costs
of its remedial efforts from him,
Dickerson v. EPA, 834 F.2d 974, 978 (11th
Cir. 1987), that would give him no relief
from the costs imposed on him by the
destruction of his property. His only
recourse would be a suit against the
United States under the Tucker Act to
enforce his rights under the just-
compensation clause of the Fifth
Amendment. See United States v. Fisher,
supra, 864 F.2d at 438-39. So section
113(h)’s exception for suits under
section 310 is inapplicable--and anyway
Tarkowski hasn’t brought a suit; nor is
he basing a defense against the EPA’s
suit on anything that can be found in
section 310.

  The EPA argues that section 113(h) is so
sweeping, once the section 310 exception
is put to one side, that it withdraws
from the district court the power in
considering a request for an access order
to weigh the reasonableness of the
removal or remedial action proposed by
the agency. The argument if accepted
would reduce the court’s power to
disallow access as arbitrary or
capricious to derisory dimensions, just
as the agency argues. Tarkowski would be
left with only his Tucker Act remedy
unless the agency tried to shift the
expense of remediation to him. In effect
the agency is claiming the authority to
undertake warrantless searches and
seizures, of a peculiarly destructive
sort, on residential property despite the
absence of any exigent circumstances. It
is unlikely, even apart from
constitutional considerations, that
Congress intended to confer such
authority on the EPA.

  What is true is that if all the agency
were seeking was a remediation order,
Tarkowski could not challenge it. But
that is not all that the agency is
seeking. It is seeking an access order,
without which it cannot execute remedial
measures on Tarkowski’s property. And
when an access order is sought, judicial
jurisdiction clicks in; the arbitrary and
capricious standard clicks in. The right
of judicial review of agency action that
is expressly conferred by section
104(e)(5) can thus be preserved without
impairment of the objectives of section
113(h) by distinguishing between cases
in which the agency either is rightfully
on the land to perform remedial measures
or does not have to be on the land
because the order is directed to the
landowner--in either of which cases the
reasonableness of the measures cannot be
judicially reviewed until the remediation
is completed--and cases in which the
agency must get access to the land to
execute remediation. The latter case,
which is our case, is rare. Remedial
measures normally are undertaken in
circumstances in which there is no doubt
that the entity undertaking the measures
has a right to be on the land. Normally,
indeed, the measures are to be undertaken
by the landowner himself, and section
113(h) steps in to prevent someone else,
who might as a party also responsible for
the contamination of the property be
forced to contribute to the costs of the
measures, see section 113(f)(1);
NutraSweet Co. v. X-L Engineering Co.,
227 F.3d 776, 784 (7th Cir. 2000), or
might as a concerned citizen be
dissatisfied with the measures, from
bringing suit to enjoin them, thus
delaying the cleanup. Schalk v. Reilly,
supra, 900 F.2d at 1095; North Shore Gas
Co. v. EPA, 930 F.2d 1239, 1244 (7th Cir.
1991); McClellan Ecological Seepage
Situation v. Perry, 47 F.3d 325, 328-29
(9th Cir. 1995); Voluntary Purchasing
Groups, Inc. v. Reilly, 889 F.2d 1380,
1388-90 (5th Cir. 1989). Evidently the
EPA does not trust Tarkowski to undertake
whatever remedial measures it might
order, and therefore it wants to
undertake them itself; and to be able to
do that it needs an access order.

  So this case is unusual; what makes it
unprecedented (for there is no previous
reported case like it) is that the
tension between sections 104(e)(5) and
113(h) that we are trying to dissolve is
acute only when the agency, which usually
has better sense, claims a right to
undertake remedial efforts before
determining whether there is a hazard
that justifies the efforts. The usual
purpose of an access order is to enable
the agency to conduct on-site tests of
soil or water, and off-site tests of
samples of oil and water taken from the
site or the adjacent area, to determine
whether remedial measures are necessary.
If the tests indicate the need for such
measures, the agency orders them to be
undertaken. 42 U.S.C. sec. 9604(a). That
order cannot be challenged, as section
113(h) makes clear. (Likewise emergency
orders for remediation issued under 42
U.S.C. sec. 9606(a), see In re CMC
Heartland Partners, 966 F.2d 1143, 1148
(7th Cir. 1992); Kelley v. EPA, 15 F.3d
1100, 1103 (D.C. Cir. 1994), but no such
order was issued here.) The EPA proceeded
differently here, invoking the provision
of the statute that authorizes entry "to
effectuate a response action." sec.
104(e)(3)(D). By proceeding along this
route, the agency placed itself squarely
in the sights of section 104(e)(5). If
the agency’s very ground for going on the
property is to undertake remedial
measures, the court cannot perform its
duty of determining whether the agency’s
proposed action is arbitrary or
capricious without considering whether
the measures proposed are a reasonable
basis for authorizing what would
otherwise be a trespass. We can find
nothing in the background or purpose of
section 113(h) to indicate that the court
lacks this power, without which all
manner of unconstitutional conduct by the
EPA would be beyond the reach of judicial
prevention.

  We repeat that the agency is entitled to
go onto Tarkowski’s property for the
purpose of conducting (if reasonable to
do) additional tests, and if on the basis
of the test results it issues a
remediation order under section 104(a),
section 113(h) will prevent Tarkowski
from obtaining immediate review of the
order. But instead the agency has chosen
a route, short-circuiting the
determination whether the property poses
an environmental hazard, that deprives it
of its immunity from judicial review.

  Now it is true that in the case just
put, where the agency first obtains an
access order for the purpose of testing,
and then, on the basis of what the tests
show, issues a remediation order, the
agency would need to obtain a second
access order if the property owner
refused to permit the agency to go onto
his property to execute the order,
assuming it was the unusual case in which
the agency had decided to conduct the
cleanup itself rather than order the
landowner to do so. The remediation order
itself would not be reviewable, but, as
the agency itself concedes, the time and
manner of its execution would be. If the
agency wanted to avoid having to go back
to court for a second order, it could in
its first order specify the remedial
actions that it would take if the tests
that it wanted to conduct showed
specified levels and types of
contamination. If the plan set forth for
testing followed by remediation was a
reasonable one, the court would issue the
access order; "arbitrary and capricious"
review is deferential. In this case the
agency sought a blank check from the
court. It sought authorization to go onto
Tarkowski’s property and destroy the
value of the property regardless of how
trivial the contamination that its tests
disclosed.

  If section 113(h) has the sweep that the
agency contends it has, hereafter the EPA
will be able to nullify judicial control
of access orders by including in every
application for such an order the
statement that while its purpose is
merely to test, it reserves the right to
take unspecified remedial actions on the
basis of the test results. Mere mention
of remediation would on this view compel
the court to issue the access order no
questions asked. That would spell the
abolition of the right of judicial review
expressly granted by section 104(e)(5).
It would give the agency in effect an
unlimited power of warrantless search and
seizure, something that the statute does
not contemplate and that the Fourth
Amendment would almost certainly forbid.

  As a procedural detail, we note that
Tarkowski filed a cross-appeal, not
because he wants a different judgment,
which is the only basis on which a cross-
appeal is either necessary or permitted,
e.g., Massachusetts Mutual Life Ins. Co.
v. Ludwig, 426 U.S. 479 (1976) (per
curiam); Froebel v. Meyer, 217 F.3d 928,
933 (7th Cir. 2000); Stone Container
Corp. v. Hartford Steam Boiler Inspection
& Ins. Co., 165 F.3d 1157, 1159 (7th Cir.
1999); Coe v. County of Cook, 162 F.3d
491, 497 (7th Cir. 1998); Remus Joint
Venture v. McAnally, 116 F.3d 180, 183 n.
4 (6th Cir. 1997); 15A Charles Alan
Wright, Arthur R. Miller, and Edward H.
Cooper, Federal Practice and Procedure,
sec. 3904, pp. 199-205 (1992), but
because he wishes to urge grounds for
affirmance not adopted by the court that
he thinks would if we adopted them
prevent the EPA from seeking even an
access order limited to inspection and
testing. That is not a proper basis for a
cross-appeal. It seeks not to alter the
judgment but to shape our opinion in a
fashion that by operation of the doctrine
of stare decisis will give the judgment a
broader consequence. To require a cross-
appeal in such circumstances would cause
immense confusion, since the precise
stare decisis effect of differently
grounded appellate opinions will often be
impossible to predict. We leave for
future consideration any arguments that
Tarkowski may have against a more limited
access order, as we have no reason to
believe that the EPA will continue to be
obsessed as it has been for far too long
with the minuscule threat to the
environment that he poses.
Affirmed.



  RIPPLE, Circuit Judge, concurring in the
judgment. As the panel notes, this is a
very unusual case. The Environmental
Protection Agency, an agency charged with
a high responsibility and an often
difficult task, here seeks to gain access
to an individual’s property, for the
purpose of continuing to inspect the land
for evidence of the release or threat of
a release of hazardous substances and for
the purpose of effectuating a fairly
extensive remedial action. What makes
this case unusual is the very limited
evidence of an environmental hazard that
the E.P.A. has put forward to justify its
request for an access order that includes
the authority to "effectuate a response
action." 42 U.S.C. sec. 9604(e)(3)(D).

  The panel quite properly holds that
Congress, by allowing, in Section
104(e)(5)(B)(i), for review of access
requests under an arbitrary and
capricious standard, did not intend to
tolerate such intrusions when they are
based on the very limited evidence of
contamination put forward in this case.

  The court’s analysis, while adequately
responding to the narrow and unusual
situation before us, does leave a
conceptual and practical difficulty that
is bound to emerge in future and more
difficult cases. In these cases, the
E.P.A. will proffer more significant
evidence of the release or threat of
release of hazardous substances on an
individual’s property and seek access to
that land to investigate more accurately
the nature and extent of the violation
and to implement a significant remedy. In
such an instance, a court will need to
take into consideration the scope of the
E.P.A.’s planned response action in order
to carry out its responsibility under
Section 104(e)(5) of determining whether
"under the circumstances of the case the
demand for entry [more specifically, a
demand for entry to "effectuate a
response action" under Section
104(e)(3)(D)] . . . is arbitrary and
capricious, an abuse of discretion, or
otherwise not in accordance with law." 42
U.S.C. sec. 9604(e)(5)(B)(i). What
remains unclear are the circumstances
that will justify a court’s denial of
entry to effectuate a remedial order.
Section 113(h) certainly appears to curb
courts from examining the technical merit
of a response action presented by the
government and from micromanaging the
activities that such an action could
include. Yet, when the E.P.A.’s evidence
of contamination allows access for some
type of response action, but makes the
contemplated remedy seem significantly
disproportionate to the perceived
violation, the limitations on the court’s
authority are not well-defined. Today’s
opinion, by suggesting that the E.P.A.’s
remediation request must be reasonable,
implies that there must be a
proportionality between the investigative
results and the proposed plan. Such a
balancing approach may result in courts
assuming a great deal more latitude than
Congress intended.

  Today’s decision is hardly the occasion
to delineate comprehensively or precisely
the limits of judicial authority in such
a situation. Disagreements can be
expected between the E.P.A. and those
that it seeks to regulate. The
conflicting mandates of Section 104(e)(5)
and Section 113(h) will collide far more
starkly than they do in this case. More
explicit congressional guidance would
permit the E.P.A. to fulfill its
responsibilities and the courts to
respond more precisely to the legislative
mandate.
