EPA pushes Ekberg to settle

Trial by jury denied

Glen Ekberg is being sued, but he won’t be allowed to have a jury of his peers hear his case.

Ekberg was the owner of Ekberg Park, which he donated to the Rockford Park District, and is still the owner of adjacent farm land. He purchased the land in 1964.

In a deposition by former Roto-Rooter employee, Shorty Thompson, it was alleged that the land was a toxic waste dump site in the 1950s with the consent of the previous owner, George Johnson, who is now deceased. Allegedly, Johnson thought the material was “septic pumpings,” and Ekberg was told the same, but discontinued the practice.

Ekberg’s land was included in the southeast Rockford Superfund controversy in the 1990s, in which many industries in the area agreed to pay the EPA rather than face threatened litigation.

Ekberg has protested because he didn’t cause the pollution. He also felt it was unfair that as the landowner left holding the bag, he was responsible for what he felt was an unwarranted level of EPA fines.

He recently discovered he could clean up the land through natural plantings of alfalfa and cottonwood trees and less invasive pumping out of the free agents above the underground clay level than the methods proposed by the EPA. Ekberg says the EPA methods will puncture the clay level, allowing the pollution to escape into the aquifer. He also says the EPA methods will destroy the landscape, plus the cost will be around $9 million.

Ekberg wants to use his methods at no cost to the taxpayer. When the site was tested for pollution in 1995, it registered 8,000 parts per billion. With Ekberg’s natural attenuation methods, he says it now reads less than 2,500 parts per billion. He says hybrid poplar trees and pumping will be more effective and less costly.

He wanted to present the complicated case history and comparative measures to a jury. “That’s my constitutional right,” said Ekberg.

Ekberg received a decision on his jury demand from Federal Judge Philip G. Reinhard on April 12. In his decision, Reinhard denied the motion for trial by jury, writing: “ ‘Suits at common law’ include actions that are analogous to suits that would have been brought in the law courts rather than courts of equity or admiralty prior to the Amendment’s adoption. See Tull, 481 U.S. at 417. Actions analogous to equity actions do not require a jury trial by jury. Id.”

The “Amendment” Reinhard refers to is the 7th Amendment, which guarantees the right to trial by jury.

Reinhard also cited four cases as precedents. In those cases, the U.S. sued corporations. Ekberg is being sued personally by the EPA.

The EPA has summoned Ekberg to the federal building in Chicago on April 28 to discuss access to his land and start the EPA remedy.

Elizabeth Wallace, Illinois senior assistant attorney general, said the purpose of the grant of access is to conclude a nearly complete site investigation. Wallace added that a remedy has been proposed, but referred questions to the U.S. EPA.

Mary Reed, trial attorney with the U.S. Department of Justice, who is working for the U.S. EPA, said she couldn’t discuss pending litigation.

The Rockford Park District announced on Tuesday, April 27, that it would do a voluntary $9 million clean up of the Sand Park Superfund site.

Jeff Havens also contributed to this article. Look for his subsequent articles on this case in upcoming issues.

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