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Frey v. Environmental Protection Agency

United States Court of Appeals, Seventh Circuit

May 1, 2014

SARAH E. FREY, KEVIN ENRIGHT, and PROTECT OUR WOODS, INC., Plaintiffs-Appellants,
v.
ENVIRONMENTAL PROTECTION AGENCY and GINA MCCARTHY, ADMINISTRATOR, Defendants-Appellees

Argued November 15, 2013.

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:00-cv-0660-RLY-TAB -- Richard L. Young, Chief Judge.

For Sarah E. Frey, Kevin Enright, Protect Our Woods, Incorporated, Plaintiffs - Appellants: Mick G. Harrison, Bloomington, IN.

For Environmental Protection Agency, GINA MCCARTHY, Administrator, Defendants - Appellees: Brian C. Toth, Department of Justice, Washington, DC.

Before FLAUM and HAMILTON, Circuit Judges, and KAPALA, District Judge.[*]

OPINION

Page 462

Hamilton, Circuit Judge .

This environmental dispute stems from the contamination and clean-up of several sites near Bloomington, Indiana, that have been the subject of two prior decisions by this court. See Frey v. Environmental Protection Agency, 270 F.3d 1129 (7th Cir. 2001) (" Frey I " ); Frey v. Environmental Protection Agency, 403 F.3d 828 (7th Cir. 2005) (" Frey II " ). After our last remand

Page 463

of this citizen suit under the Comprehensive Environmental Response Compensation and Liability Act (" CERCLA" ), see 42 U.S.C. § 9659 (citizen suits authorized), the parties filed cross-motions for summary judgment. Plaintiffs Sarah E. Frey, Kevin Enright, and Protect Our Woods, Inc. also filed a motion to disqualify the district judge because of his ruling in a related case.

The remediation work has been divided into three stages. The district court held that § 113(h)(4) of CERCLA, 42 U.S.C. § 9613(h)(4), deprived it of jurisdiction over the plaintiffs' claims based on the second and third stages because that remedial work was ongoing. The court then granted summary judgment for the defendants (the Environmental Protection Agency and its Administrator) on two of the remaining claims concerning the completed first stage of the remedial work and held that the third claim was moot. The district judge also denied the motion to disqualify him.

We affirm. The second and third stages of the site clean-ups are currently in progress, so § 113(h)(4) prevents the courts from reviewing plaintiffs' claims about those stages. We also conclude that § 113(h)(4) does not bar judicial review of plaintiffs' claims about the first remedial stage insofar as they are not affected by continuing clean-up efforts at the sites. The district court correctly granted summary judgment to the EPA on plaintiffs' claims regarding the first remedial stage. Plaintiffs also are not prevailing parties on their claim that the EPA and its administrator were required to have the court enter agreements between parties as consent decrees. Finally, Chief Judge Young was not required to recuse himself, and his denial of the motion to disqualify did not violate plaintiffs' right to due process of law.

I. Background

A. Factual Background

The facts underlying this dispute have been laid out in detail in Frey I and Frey II, as well as by the district court in its order granting summary judgment, see Frey v. EPA, 937 F.Supp.2d 964 (S.D. Ind. 2013), so we limit our discussion to the facts relevant to this appeal.

This case arises from the contamination and clean-up of three sites in and near Bloomington, Indiana. From the late 1950s to the early 1970s, CBS (formerly Westinghouse Electric Corporation) manufactured electrical capacitors at a plant in Bloomington. The capacitors contained insulating fluid made up of polychlorinated biphenyls, known as PCBs, which are carcinogens that are toxic to both humans and wildlife. See United States Environmental Protection Agency, " Polychlorinated Biphenyls (PCBs)," www.epa.gov/waste/hazard/wastemin/minimize/factshts/pcb-fs.pdf (accessed May 1, 2014); 40 C.F.R. § 761.20 (implementing the Toxic Substances Control Act, 15 U.S.C. § § 2601 et seq.) (" any exposure of human beings or the environment to PCBs ... may be significant" ). CBS deposited defective capacitors at local landfills and dumps where PCBs escaped from the capacitors and entered the environment. CBS also discharged PCB-laden water from its plant to a local sewage treatment plant.

In the late 1970s, PCB contamination was discovered in the Bloomington area and traced back to the CBS plant and six sites around Bloomington. The United States, the State of Indiana, Monroe County, and the City of Bloomington filed what we call the enforcement action under CERCLA to make CBS clean up the sites. The enforcement action seemed to be resolved in 1985 with a consent decree requiring

Page 464

CBS to dig up all PCB-contaminated materials at all six sites (down to bedrock, if necessary) and to destroy them in a high-temperature incinerator. But the Indiana legislature blocked construction of the incinerator, forcing the parties back to the negotiating table.

A new agreement proved elusive. The parties eventually agreed on modified remedies for three of the six sites but were unable to agree on remedies for the remaining three: Lemon Lane Landfill, Neal's Landfill, and Bennett's Dump. These three sites, which had been added to CERCLA's National Priorities List in 1983 and 1984, are the sites at issue in this appeal. To resolve their remaining disagreements, the parties worked with a special master to approach the clean-up in stages. When the parties agreed on remedies for a given stage, CBS could begin work on that stage while the parties continued to negotiate about further clean-up. Negotiating in stages thus made it possible to start cleaning up the sites before the parties had resolved all of their differences.

This process eventually resulted in three clean-up stages. Stage 1 addressed PCB contamination at the landfills. It required CBS to remove sediment from contamination hot spots at Lemon Lane Landfill and Neal's Landfill, and to clean all sediment at Bennett's Dump to " industrial standards." CBS was also required to install a clay landfill cap at all three sites that would contain any remaining contaminated sediment. Stage 1 was formalized in three slightly different Records of Decision, one for each site. The Stage 1 Records of Decision for Lemon Lane Landfill and Neal's Landfill required future remedies for groundwater and sediment contamination. The Stage 1 Record of Decision for Bennett's Dump required future monitoring to detect any remaining contamination after the required total sediment excavation was complete. CBS completed work on Stage 1 at all three sites by the end of 2000.

After CBS completed Stage 1, tests showed that PCBs had migrated into the bedrock and were still being released from the bedrock into water and sediment. Much of the geology around Bloomington consists of limestone karst, which is characterized by fissures, fractures, and conduits that ...


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