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Frey v. United States Environmental Protection Agency

United States District Court, S.D. Indiana, Indianapolis Division

March 29, 2013

SARAH ELIZABETH FREY, KEVIN ENRIGHT, and PROTECT OUR WOODS, INC., Plaintiffs,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Carol Browner, Administrator, and CBS CORPORATION, Defendants

For SARAH ELIZABETH FREY, KEVIN ENRIGHT, PROTECT OUR WOODS, INC., Plaintiffs: Mick G. Harrison, Rudolph William Savich, Bloomington, IN.

For UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Carol Browner, Administrator, Defendant: Daniel R. Dertke, UNITED STATES DEPARTMENT OF JUSTICE, Washington, DC.

OPINION

RICHARD L. YOUNG, Chief United States District Judge.

Page 965

ENTRY ON THE UNITED STATES' MOTION FOR SUMMARY JUDGMENT and PLAINTIFFS' CROSS MOTION FOR SUMMARY JUDGMENT

On April 20, 2000, Plaintiffs filed a " citizen suit" under the Comprehensive Environmental Response Compensation and Liability Act (" CERCLA" ), 42 U.S.C. § 9601 et seq., as amended by the Superfund Amendments and Reauthorization Act of 1986 (" SARA" ), seeking to challenge various aspects of the environmental cleanup of three related hazardous waste sites in the Bloomington, Indiana area: the Lemon Lane Landfill, Neal's Landfill, and Bennett's Dump. This case, like the underlying cleanup, has faced a number of obstacles, including two trips to the Seventh Circuit Court of Appeals. See Frey v. Environmental Protection Agency, 403 F.3d 828 (7th Cir. 2005) (Frey II); Frey v. Environmental Protection Agency, 270 F.3d 1129 (7th Cir. 2001). The case is now before the court on the United States' Motion for Summary Judgment and the Plaintiffs' Cross Motion for Summary Judgment. For the reasons set forth below, the court GRANTS the United States' Motion for Summary Judgment, and DENIES the Plaintiffs' Cross Motion for Summary Judgment.

I. Formation of a Remedial Plan

Before addressing the factual background of this case, the court will begin with a brief discussion of the steps involved in the formulation of a remedial action plan to address contaminated sites listed on the National Priorities List, like those presented in this case, under CERCLA and its related implementing regulations.

Section 116(d) of CERCLA provides that " [t]he President shall assure that remedial investigations and feasibility studies (RI/FS) are commenced for facilities listed on the National Priorities List, in addition to those commenced prior to October 17, 1986 . . . . " 42 U.S.C. § 9616(d). CERCLA does not define nor describe what should be included in an RI/FS. The National Oil and Hazardous Substances

Page 966

Pollution Contingency Plan (" NCP" ), 40 C.F.R. Pt. 300, republished by the EPA pursuant to Section 105 of CERCLA to cover hazardous waste sites, establishes the steps involved in formulating a remedial action plan. According to the NCP, the purpose of a " remedial investigation (RI) is to collect data necessary to adequately characterize the site for the purpose of developing and evaluating effective remedial alternatives." 40 C.F.R. § 300.430 (d). In addition, the primary purpose of the feasibility study (FS) " is to ensure that the appropriate remedial alternatives are developed and evaluated such that relevant information concerning the remedial action options can be presented to a decision-maker and an appropriate remedy selected." 40 C.F.R. § 300.430 (e).

After the EPA has completed a remedial investigation and feasibility study of a contaminated site, the EPA evaluates each alternative based upon nine regulatory criteria. 40 C.F.R. § 300.430 (e)(9)(iii). These include whether each alternative adequately protects human health and the environment; attains applicable or relevant and appropriate requirements under federal or state environmental laws; achieves long-term or permanent effectiveness; and employs treatment that reduces toxicity, mobility, or volume of the contaminant. Id. The EPA also evaluates whether each alternative is feasible in terms of its implementation and cost, and takes into account the concerns of the state and the local community. Id. After the EPA selects a preferred remedy, it presents it to the public in a proposed plan for review and comment. 40 C.F.R. § 300.430 (f)(ii). Following a period of public comment, the EPA selects a final remedy and memorializes it in a public document known as a Record of Decision (" ROD" ). Id. With this information in mind, the court now turns to the facts of the present case.

II. Factual Background

From 1958 to 1972, CBS (formerly Westinghouse Electric Corporation) operated a plant in Bloomington, Indiana, where it manufactured electrical capacitors containing insulating fluid composed of polychlorinated biphenyls (" PCBs" ). CBS disposed of defective capacitors in local dumps and landfills, resulting in the release of PCBs into the environment. In addition, CBS discharged PCBs from its plant through the sewer system to the Winston Thomas Sewage Treatment Plant.

In the late 1970s, harmful levels of PCBs were detected in streams, sediments, plants, and wildlife in the Bloomington, Indiana area, which were traced to CBS' plant and to six sites in, and near, Bloomington: Anderson Road, Bennett's Dump, Lemon Lane Landfill, Neal's Landfill, Neal's Dump, and the Winston Thomas Facility. In 1981 and 1983 respectively, the plaintiffs -- the United States, the State of Indiana, the City of Bloomington, and Monroe County -- brought two lawsuits under CERCLA to compel cleanup of those sites. United States v. CBS Corp .,[1] No. 1:81-cv-448-RLY-KPF, and City of Bloomington v. CBS Corp., No. 1:83-cv-009-RLY-KPF. The cleanup selected in those decisions was ultimately included within a Consent Decree, which the court entered on August 22, 1985. The Consent Decree required CBS (then Westinghouse) to remove all PCB-contaminated materials by excavation, if necessary, down to the bedrock, and to destroy these PCB-contaminated materials by incinerating them in a high temperature incinerator, which CBS was required to design, construct and operate.

Page 967

After entry of the Consent Decree, public opposition to the incinerator arose, leading the Indiana Legislature to pass legislation aimed at blocking implementation of the incineration remedy. As the Seventh Circuit explained in its first Frey decision:

In 1991, the Indiana Legislature passed a law aimed at blocking the incinerator. This obstacle pushed the parties -- the EPA, the State of Indiana and its Department of Environmental Management, the City of Bloomington, the Bloomington Utilities Service Board, Monroe County, Indiana, and CBS -- back to the negotiating table, where they began discussions to modify the Consent Decree.

Frey, 270 F.3d at 1131.

The parties ultimately agreed to modified remedies for the Anderson Road Landfill, Neal's Dump and the Winston-Thomas Sewage Treatment Plant, but could not agree on modified remedies for the three sites at issue in this case -- Lemon Lane Landfill, Neal's Landfill, and Bennett's Dump. CBS argued that it should be required to excavate only the areas of highly contaminated soil -- the so-called " hot spots." The Environmental Protection Agency (" EPA" ) responded that " hot spot" excavation is only appropriate if water treatment and sediment removal are included in the alternative remedy.

To resolve the dispute, the district court appointed a special master. The parties approached the cleanup of the sites in stages or " operable units," with each to be incorporated in a formal ROD and presented to the court as an amendment to the original Consent Decree. The first stage, or " source control operable unit," addressed PCB contamination in the former landfills. After considering various alternatives including total excavation of the sites, and soliciting and responding to public comments, the EPA selected the alternative source control operable units for the three sites in three separate ROD amendments issued on October 16, 1998 (Bennett's Dump), March 29, 1999 (Neal's Landfill), and May 12, 2000 (Lemon Lane Landfill). Unlike the earlier Consent Decree, however, the ROD amendments for Lemon Lane Landfill and Neal's Landfill called for " hot spot" excavation (with respect to Bennett's Dump, excavation to " industrial standards" ), off-site disposal of the contaminated material, and construction of a landfill cap. The plans also called for the continuance of negotiations with respect to water treatment and sediment removal at all three sites, and the initiation of the necessary investigations to determine the need for interim and permanent water treatment and sediment removal at each site. CBS completed the source control operable remedy with respect to all sites by the end of 2000, as required by an order issued by the court on February 1, 1999. During this time frame, Plaintiffs brought the present action challenging the modified remedy as inadequate, thereby creating an imminent danger to the public health and the environment.

Following completion of the source control operable unit, the EPA determined through water and sediment investigations that PCBs had migrated into the cracks and fissures of the limestone bedrock (known as " karst" ) located underneath the three sites, and were being flushed out of the bedrock through the flow of ground and storm water into nearby springs that feed into local creeks, spreading PCBs into the sediment along those pathways. The EPA therefore engaged in risk assessments, the purpose of which was to quantify the threat to public health and the environment from actual or threatened releases of PCBs into the environment, and the future effects of such releases upon the environment.

Page 968

Based upon the results of these risk assessments, the EPA proposed three plans, and published them for comment in 2006 and 2007. After receiving public comments, the EPA selected the second and third operable units in three separate ROD amendments issued on September 26, 2006 (Bennett's Dump), September 29, 2006 (Lemon Lane Landfill), and September 25, 2007 (Neal's Landfill). In short, these plans called for CBS (1) to assume ownership and operation of the water treatment plant that the EPA built in 1996 at Illinois Central Spring (Lemon Lane Landfill); (2) modify and operate a groundwater collection and treatment system to capture PCB-contaminated groundwater from seeps and springs (Neal's Landfill); (3) install a passive drain system to lower the water level in several rain-filled quarry pits (Bennett's Dump); (4) design, construct, and operate a new water treatment plant and collection trench (Bennett's Dump); and (5) periodically sample ...


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