In the case before the United States Court of Appeals for the Seventh Circuit, Sarah E. Frey, Kevin Enright, and Protect Our Woods, Inc. (collectively "Frey") appeal against the Environmental Protection Agency (EPA), its acting administrator Stephen L. Johnson, and Viacom, Inc. The appeal arises from a previous district court ruling concerning Superfund sites near Bloomington, Indiana, contaminated with polychlorinated biphenyls (PCBs) and other hazardous substances. Frey seeks to invoke the citizen suit provision of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), arguing that the EPA has completed its PCB excavation but has not selected further cleanup remedies.
The district court deemed Frey's suit premature, asserting that the EPA is still evaluating additional cleanup options for three specific sites. However, the appellate court disagrees, concluding that the lack of a clear measure of EPA's progress entitles Frey to pursue her lawsuit.
The background includes a 1983 civil action initiated by the U.S. against Viacom to address PCB contamination at two sites, which later expanded to six sites after consolidation with the City of Bloomington's lawsuit. A 1985 consent decree required Viacom to excavate and incinerate the PCBs, a plan that faced controversy leading to a 1991 Indiana legislative action that blocked incinerator construction. Negotiations between the EPA and Viacom stalled over remediation methods, prompting a 1997 district court order for remediation by 1999, followed by the appointment of a special master to facilitate compliance with the consent decree. The special master suggested extending the remediation deadline to 2000, noting some agreement on alternative excavation methods.
Viacom committed to investigating water treatment and sediment remediation solutions at three sites during excavation work. A proposed schedule mandated further settlement negotiations on these issues a year after source control activities were completed at each site. The district court adopted a special master's recommendations on February 1, 1999, requiring that excavation at Neal’s Landfill and Bennett’s Dump be completed by the end of 1999, and at Lemon Landfill by the end of 2000. Following the abandonment of an incinerator option, the EPA initiated a new source control remedy selection for PCB excavation at the sites, adhering to the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). The EPA is required to evaluate remedial alternatives against nine criteria, select a preferred remedy, and present it for public comment before finalizing it in a Record of Decision (ROD).
On March 29, 1999, the EPA amended the ROD for Neal’s Landfill, shifting from a complete excavation plan to a "hot spots" remediation approach, which involves removing highly contaminated areas and capping the landfill. The EPA determined this approach was preferable based on regulatory criteria. A public comment period and hearing were held regarding this amendment. Additionally, on May 12, 2000, a similar ROD amendment was issued for Lemon Lane Landfill, again adopting the hot spots technique. Both amendments stated that further actions would be taken to address groundwater treatment and sediment removal. In the ongoing lawsuit, the district court received relevant materials, including an affidavit from Thomas Alcamo, the EPA's Remedial Project Manager, indicating that investigations for water and sediment were ongoing at all three sites.
All work related to the "source control operable unit" at Neal’s Landfill was completed in November 1999, involving the excavation and off-site disposal of 41,747 tons of PCB-contaminated material. Under a 1985 consent decree, Viacom constructed a water treatment plant that became operational in 1990. The EPA is currently assessing the necessity of expanding this plant to enhance spring water capture, stormwater storage, and additional processing equipment to reduce PCB concentrations in the effluent, as well as evaluating the removal of PCB-contaminated sediments from nearby creeks.
At Lemon Lane Landfill, the corresponding "source control operable unit" was completed in November 2000, with 80,096 tons of PCB-contaminated material excavated and disposed of. Following the contamination of the Illinois Central Spring, the EPA funded an interim water treatment plant that began operations in May 2000. The EPA is evaluating the need for increased stormwater storage, additional processing equipment to meet discharge criteria, treatment of nearby springs, and capturing and treating PCB-contaminated water closer to the site, alongside sediment removal from adjacent streambeds.
Bennett’s Dump saw the completion of soil excavation and off-site disposal of 36,157 tons of PCB-contaminated material in November 1999. Although sediment removal occurred from a nearby creek, PCBs have continued to leak into it. Viacom is conducting a groundwater investigation plan to inform the EPA about the site's hydrology, with further actions pending on the results. Groundwater investigations are noted to take longer than excavation activities.
Dorothy Alke, Viacom’s Project Manager, indicated that during the consent decree negotiations, the EPA had not finalized water treatment or sediment remedies for the sites. Disputes over Viacom’s liability for cleanup costs were resolved through a special master’s report, leading to the implementation of excavation remedies. Alke confirmed Viacom's willingness to explore additional water treatment options and ongoing groundwater investigations. Excavation of PCB hotspots was completed at Neal’s Landfill and Lemon Lane by November 1999 and November 2000, respectively, with additional work at Bennett’s Dump in fall 1999 and September 2000.
Water and sediment contamination issues remain unresolved at multiple sites, despite ongoing investigations and testing. Frey alleges that the excavation remedy chosen by the EPA has failed to ensure compliance with CERCLA and other environmental laws. However, her ability to litigate this matter is restricted by the "Timing of review" provision in CERCLA § 113(h), which mandates that a citizen must wait until a selected remedial action is completed before challenging it. The court has previously clarified that this provision pertains to existing remedial measures and not hypothetical future actions.
The EPA has filed for summary judgment, asserting that Frey's lawsuit is barred by § 113(h) because concrete remedial measures are still in progress at all sites. Frey argues that the only selected remedy—the excavation of contaminated "hot spots"—is complete and that no further remedies have been selected. The district court confirmed that the targeted excavation had been completed but concluded that Frey’s action was premature due to ongoing "active remedial planning," thus granting the EPA's motion for summary judgment.
Frey has appealed, and there is disagreement between the parties regarding the applicable standard of review. Frey advocates for a de novo standard, as the case involves statutory interpretation decided on summary judgment, whereas the EPA suggests the "clearly erroneous" standard should apply, based on factual applications to law. The court agrees with Frey, asserting that this case involves statutory interpretation rather than merely applying undisputed legal principles to agreed facts.
CERCLA’s framework aims to facilitate the cleanup of hazardous waste sites while preventing litigation from hindering these efforts. Section 113(h) restricts federal court jurisdiction over challenges to selected removal or remedial actions, except in specific circumstances, including citizen suits alleging violations of requirements once a selected remedy has been completed. Frey interprets this to mean that she can bring her lawsuit since the EPA has not selected a remedy for groundwater or sediment contamination, arguing that her suit can proceed now that the excavation remedy is complete.
EPA has not provided a convincing alternative interpretation of the statutory language governing citizen suits, relying instead on Frey I, which states that a suit cannot proceed until all stages of a remediation plan are complete. The court emphasized that the statute requires restraint from suit only when "remedial action" remains to be done, not merely a stage of it. EPA argues that the excavation of PCBs is merely one stage and thus bars Frey’s suit until all remediation phases, including water and soil treatment, are completed. However, the core issue is whether the record indicates that only a stage is complete or if an entire remedial measure has been finalized. EPA’s counsel claimed that ongoing investigations into groundwater and soil contamination prevent judicial review, yet there is concern about the potential for indefinite delays in taking actual remedial action. There was no clear response regarding the court's authority to compel agency action under the Administrative Procedures Act (APA) if EPA delays for an extended period. The court concluded that EPA believes it is shielded from review under CERCLA § 113(h) as long as it contemplates future actions, but the statute does not support such an indefinite prohibition on citizen suits. Frey I emphasized that time limits are based on existing remediation measures rather than hypothetical future actions. For EPA to justify delaying Frey’s suit, it must demonstrate a commitment to specific actions or plans, which the current record lacks. The special master’s report, adopted in 1999, required EPA and Viacom to establish permanent water treatment solutions following the completion of source control activities, which were completed by 2000. Despite this, EPA acknowledged that no permanent remedies have been adopted. References to possible future measures in 2005 or 2006 lack specificity and support. Moreover, while the EPA may utilize a phased approach for site cleanup, transparency in data collection and decision-making is essential, and ongoing investigations alone cannot prevent judicial review without a clear endpoint.
Frey proposes a narrow interpretation of § 113(h) to limit its application solely to instances where the EPA has finalized a remedy through its Record of Decision (ROD) process. She acknowledges that if a final remedy had been selected for all operable phases, she would be barred from suing until full implementation. However, she argues that the EPA has not made such selections for groundwater and sediment remediation, asserting a lack of evidence indicating future EPA actions at the site. The court clarifies that while a ROD or its amendment is not strictly necessary for the EPA to benefit from § 113(h), some objective indicator, with reasonable timelines, must exist for evaluating the required work at the site. The court dismisses the consent decree and special master's report as adequate measures, highlighting a lack of defined timelines and ongoing indefinite testing.
Furthermore, the court discusses § 113(h)(4), which prevents lawsuits during the "removal" phase of a site if a remedial action is planned. The district court deemed Frey’s complaint premature, potentially mischaracterizing her challenge as pertaining to a removal rather than a remedial action. Viacom contends that its investigations fall under removal actions, which the court rejects, clarifying that CERCLA distinguishes between removal actions (short-term responses) and remedial actions (permanent solutions). This case involves a challenge to a remedial action concerning long-term solutions for hazardous waste. The court emphasizes that while Congress intended for remedial actions to conclude before judicial review, it did not eliminate the possibility of such review altogether.
Ultimately, the court reverses the district court’s judgment and remands for further proceedings, affirming that the citizens of Bloomington deserve their opportunity for legal recourse.
