Steven Pollack
1 post
Sep 16, 2008
8:52 AM
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We brought suit against the FBI and Coast Guard for discharging lead bullets into the Great Lakes in violation of federal environmental laws. We are not talking about a few bullets in isolated incidents but rather a systemic policy in which a million rounds are discarded per year. This is our drinking water!
We filed suit on Jan. 14, 2008. Even though the DOJ attorney told the judge all bullets fired at the FBI's North Chicago range go into a berm, the FBI operated a shotgun range at the edge of the bluff in which it fired directly into Lake Michigan. The FBI closed the shotgun range on Jan 18, four days after suit was filed. So much for the DOJ telling the whole truth.
The DOJ continued to tell the judge that all bullets go into the berm so there is no ongoing violation. Our expert, a former Navy small arms instructor said this was not the whole story because bullets routinely ricochet off range. So on March 26 we went to the range to test our theory and low and behold, we found 40 FBI bullets that had ricocheted into Foss Park next to the range and the beach below the range. No casings, just lead bullets sitting on the surface. One bullet was even found under a swing set! Think about that and how it got there.
http://www.globalarray.net/user/crescentrods/BlueEco/BulletsGroupBeachMed.jpg
http://www.globalarray.net/user/crescentrods/BlueEco/BulletsGroupFossMed.jpg
On April 1 we went into court for a temporary restraining order to shut down the range based on this evidence. When we got to court the FBI claimed to have voluntarily shut the range down the night before and asked that no restraining order be issued. The judge complied with the FBI request and the range remained shut throughout the rest of litigation. As of today, it is still closed but with the case dismissed the FBI is telling the Sun-Times that it plans to re-open after making some "improvements".
Can we trust the FBI to do the right thing? Lets discuss that. At the April 1 TRO hearing the following exchange took place:
THE COURT: …And I want to ask you point blank: Does the FBI or does any other agency have any record of any complaints by anyone over the last – how long has the berm been there? Since ‘9- --
MR. GUALTIERI: Well, the FBI has been conducting operations similar to these since the late 1970’s, and the park has been there –
THE COURT: Since that time –
MR. GUALTIERI: --the entire time.
THE COURT: --have there been any complaints by anyone of ricochets or bullets or projectiles or anything else from the shooting range spilling over into the park?
MR. GUALTIERI: Right. Yeah, your Honor, we’re not presently aware of any. We’ve had minimal time for any such inquiries, but we’re not aware of any.
THE COURT: Are you?
MR. POLLACK: No.
MR. GUALTIERI: And—
THE COURT: Okay. So as I understand it then, the proximity of these two areas, on the one side as a park, on the other as a shooting range, has been going on for approximately –the FBI has had it since when?
MR. GUALTIERI: Well, with regard to the FBI, at least 30 years. And there were, you know, firing range operations different from the FBI’s but similar before that.
THE COURT: This particular relationship has been going on for 30 years?
MR. GUALTIERI: Yes.
THE COURT: And nobody at this point is aware of a single incident or occurrence which has engendered a complaint from any of the public?
MR. GUALTIERI: That’s correct, your Honor.
THE COURT: Okay. Have there been any other notifications or notices or situations such as this one which bring to light the use of—the possibility that there is some sort of spillover of—the possibility that shots are going into the park from the range? Does anyone know of any such incident, information, complaint?
MR. GUALTIERI: We’re aware of none, your Honor.
As it turns out, the DOJ attorney was lying to the judge. According to the FBI’s 2006 Phase I Environmental Site Assessment, “[b]ased on information obtained from facility personnel, a facility person at the North Shore Sanitary District Sewage Treatment Plant was hit by debris from a richocheted bullet which was fired at the subject property. The injury was not fatal.”
This was in 2001. The FBI kept this incident quiet (I called the NSSD and no one, not even long-term employees who worked at that facility, knew of the incident) yet continued to operate the range without regard to Foss Park children playing on the other side of the range.
Further indication that the FBI knew about ricochets is that all ranges are subject to surface danger zones which include wings extending to the sides of the range for ricochets. The US Army spells this out in its Range Safety Pamphlet. During discovery, the FBI turned over documents from 1986 showing they has plotted a surface danger zone that included the park, the NSSD property, and Lake Michigan. Yet they continued to operate the range in defiance of public safety.
Having all this proof of violations of the law you might think winning such a case would be easy. Instead of deciding the case on the merits, however, judge Guzman dismissed our case for lack of standing on Sep. 12, 2008 .
Judge Guzman held that plaintiffs, some who live thirteen miles south of the range in Highland Park, “would have standing only if the evidence showed that the migration had injured him. It does not. On the contrary, the most recent reports for North Chicago and Highland Park show the lead levels in those cities” drinking water are 11ppb and 9.2ppb, respectively, well below the 15ppb limit set by the government.”
Blue Eco disagrees that violations of the environmental laws must exceed government action levels or that a plaintiff must prove a pathway to his drinking water before violations of law that degrade his general drinking water supply allows standing to bring suit. That level of proof would only be available if the Executive Branch had been doing its job of enforcement in the first place. The Clean Water Act does not require as much, just proof that waste is being discharged into navigable waters without a permit. The Judiciary has now invalidated a portion of the CWA citizen suit provision by elevating standing to the level of personal injury.
Judge Guzman put too much emphasis on the drinking water lead levels and not enough on the general water supply from which it is taken. The FBI conducted testing at the range showing lead in the groundwater that flows into Lake Michigan at 200ppb, well above the government action level. The judge had that information in the FBI’s affidavit. The same affidavit shows lake sediment having 1,700 parts per million of lead (100ppm is considered potentially hazardous).
Does this ruling mean the FBI is now free to re-open the range and endanger the public in violation of established range safety guidelines and US EPA environmental guidelines for lead bullets at outdoor ranges? Is the FBI free to continue discarding its lead munitions into the nation’s waters in violation of the Clean Water Act and RCRA?
If you want to see how the Judiciary operates with citizen suits that are authorized by Congress against the Executive, the case filings can be seen at http://www.ecoesq.com/FBI_CoastGuard_Complaint.html
Last Edited on 18-Sep-2008 4:17 PM
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