For more than 20 years, the Environmental Protection Agency has been testing and re-testing on Tarkowski's property in an effort to prove the old barrels, tires, wooden pallets, and other junk strewn about it have soiled the environment. Or could soil the environment. It came up with nothing of note.

When Tarkowski said, "Enough testing," the EPA sued him, demanding the right to continue and, if necessary, fence it off, dig it up and cart away much of what the 75-year-old disabled building contractor has accumulated over the last two decades.

But in a little-noticed decision from the 7th Circuit Court of Appeals in Chicago (see Related Stories, right, for full text of the opinion), the EPA lost its case. In a blistering decision affirming a lower court ruling, Federal Judge Richard Posner called the agency's actions against Tarkowski "arbitrary and capricious."

Posner wrote the EPA sought nothing less than carte blanche – to "go onto Tarkwoski's property and destroy the value of the property regardless of how trivial the contamination that its tests disclosed."

The decision is raising eyebrows throughout the environmental law community. Gary Baise, a Washington-based environmental law attorney, says it is extremely rare for the EPA to be reined in like this.

Under the 1980 Superfund law, Baise says, the EPA has "enormous discretion in determining whether or not property is contaminated and whether the environment is being harmed."

Despite the searing from Judge Posner, EPA officials still believe something is amiss on Tarkowski's land. Hundreds of rusty 55-gallon drums may be leaking. Car batteries may be oozing acid. Asbestos from construction material may be seeping into the soil.

That may be. But the agency has so far only been able to document trace amounts of lead from the area where Tarkowski does some welding, pesticides and metals "consistent with household use," in the words of Judge Posner, and some petroleum residue consistent with "someone slopping a bit when they filled up the gas tank on their lawn mower," said Mark Ter Molen, the Chicago lawyer representing Tarkowski.

"The property, though unsightly, is not a site or source of even a slight environmental hazard," Judge Posner wrote in his opinion.

The EPA says it merely wants to be sure. It wants the right to go on the property and take more tests.

"If we were to go in and do sampling and find no evidence of a hazardous release, then of course we would not do any remedial action or removal action," says EPA lawyer Jillian Pinzon.

The area was something of a backwater when Tarkowski settled his property more than 20 years ago. Encroaching suburbs have since filled it with upscale houses and wealthy neighbors none too pleased with the junkyard in their midst, says Ter Molen.

Ter Molen said someone even left a letter in Tarkowski's mailbox saying, "Hey polock (sic), we don't want any white trash or white niggers here. We want you out - Now."

Ter Molen believes some of those angry neighbors put the feds up to the task of cleaning up the property. "It looked to me like this was EPA trying to do somebody locally a favor by trying to cart the stuff away," he said.

The EPA says that, as in most cases, the initial investigation began as a result of a neighbor's tip. But subsequent action has come at the behest of state officials and the EPA's own officers.

Ter Molen readily admits Tarkowski is, in contrast to his neighborhood, "not an upscale kind of guy." He built his stone house himself in the 1960s, and heats it by burning wood pallets because he can't afford gas or oil. He builds retaining walls out of old tires, culverts out of steel drums and uses the rest of junk to make repairs to his home.

Tarkowski himself declined comment on the case.

EPA lawyer Jillian Pinzon doesn't believe Posner's decision will have an impact beyond the Tarkowski case, though Ter Molen is not so sure.

"This is the first decision of its kind that limits the EPA's access in any way," he said. "It's the first decision that says there needs to be some proportionality involved between the evidence of environmental risk on one hand and the remedy they are seeking on the other."

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