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Residents of a Fort Lauderdale, Fla., public housing project say they are being “held captive” by a deal struck between the city and the U.S. Environmental Protection Agency to clean up a notorious toxic landfill in their neighborhood. On Wednesday, the lawyer for the Broward Gardens Tenants Association told the 11th U.S. Circuit Court of Appeals that a federal judge was wrong to have dismissed the residents’ lawsuit against the EPA, the city of Fort Lauderdale and the U.S. Department of Housing and Urban Development. The complaint alleged that the cleanup plan fails to eliminate the high level of toxins and pollutants found at the Wingate landfill and “exposes them to further contamination.” The 60-acre, city-owned site served as the city’s garbage landfill between 1954 and 1978. An incinerator on the property spewed 470 tons of toxins 24 hours a day, seven days a week until the city ceased its operations. Studies have found higher rates of cancer and infant mortality rates among residents living near the landfill. The original lawsuit, drafted by Legal Aid Services of Broward County in October 2000, alleges racial discrimination in the Wingate remediation plans. The residents claim the cleanup plan, now nearly completed, is nothing more than a continuation of the previous segregation-era policy of dumping hazardous waste in black neighborhoods. The suit sought to have the toxins removed or the public housing residents relocated. The current plan, which was approved in March 1999 by Judge William Dimitrouleas in U.S. District Court, called for the construction of a synthetic or clay cap over the landfill, which has since been installed. U.S. District Judge Alan Gold of the Southern District of Florida dismissed the residents’ suit last August, saying he lacked jurisdiction. Gold agreed with the EPA’s argument that the residents should be prevented from raising any challenges to the cleanup plan proposed under the Comprehensive Environmental Response Compensation and Liability Act, or CERCLA. The law that created the “Superfund” to clean up hazardous-waste sites gives the EPA the power to find those responsible for the contamination and to assure they cooperate in the cleanup. Gold found that CERCLA was intended to prevent time-consuming litigation that might interfere with the EPA’s goal of quickly cleaning up hazardous waste and that until the site was cleaned up, no litigation could go forward. In 1989, the EPA included Wingate on its National Priorities List as one of the most hazardous sites in the United States. A year later, the Florida Health Department conducted a study that found higher cancer levels around the Wingate area than in other areas of Broward County. And in 1999, the EPA filed a complaint against the city and entered into a consent decree requiring the city to pay for cleanup of the landfill. Sharon Bourassa-Diaz, a Legal Aid lawyer who represents the residents, argues that the courts have “bastardized” CERCLA. She told the appellate court on Wednesday that while the law was intended to keep big polluters and others responsible for contamination from trying to stop remediation by clogging the courts with lawsuits, “Congress could not have intended persons, such as the plaintiffs, to wait years before they could commence an action raising constitutional claims.” Bourassa-Diaz’s claim alleges violations of the residents’ Fifth Amendment right to due process, 13th Amendment right against racial discrimination and 14th Amendment right of equal protection. Bourassa-Diaz contends her clients are the victims of racial discrimination because HUD “knowingly and deliberately” directed local governments to design low-income, federally subsidized housing in an area adjacent to a hazardous waste site. She asserts that when residents in a “mostly white” Tampa, Fla., community rejected a similar plan, the EPA listened. But 11th Circuit Judge Ed Carnes did not appear to buy her argument, noting that the law said that “no court” shall have the jurisdiction to hear “any challenge” — constitutional or otherwise — until the remediation is complete. Todd Kim, an attorney with the Department of Justice’s Environment and Natural Resources Division, told the court that throughout the cleanup process, residents were given “numerous opportunities” to present their concerns and participate in the decision-making process. He contends the litigation is the most recent of several attempts to change the EPA’s decision as to how the site should be cleaned up. But when asked by the appellate panel, lawyers for the EPA and the city could not say when the remediation process should be considered complete and ripe for litigation. “This could just keep going on forever,” observed Judge Phyllis Kravitch. The panel appeared to consider remanding the case to Gold for him to determine when the remediation would be considered complete. The hearing Wednesday came after an announcement last month about the formation of a community coalition to lobby for a cleanup of the landfill. The coalition, led by attorney Jan Schlichtmann, the lawyer made famous by the movie “A Civil Action,” is pushing for the alleged polluters and the city to pay residents compensation for their ailments and, possibly, for their relocation. “Lawyers are working with community leaders to help them organize so they can deal effectively with the issues presented by living next to this Superfund site,” Schlichtmann said. “I am hopeful the community will be empowered to participate in the remediation plan, which is what the lawsuit is all about,” he said.

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