Frey, Sarah E. v. EPA , 403 F.3d 828 ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3877
SARAH E. FREY, KEVIN ENRIGHT,
and PROTECT OUR WOODS, INC.,
Plaintiffs-Appellants,
v.
ENVIRONMENTAL PROTECTION AGENCY,
STEPHEN L. JOHNSON, Acting
Administrator, and VIACOM, INC.,
Defendants-Appellees.
____________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. IP 00-0660-C-Y/F—Richard L. Young, Judge.
____________
ARGUED MAY 25, 2004—DECIDED APRIL 6, 2005
____________
Before EASTERBROOK, WOOD, and WILLIAMS, Circuit
Judges.
WOOD, Circuit Judge. In this successive appeal, we con-
front another chapter in the long history of certain
Superfund sites located near Bloomington, Indiana. The sites
are contaminated with polychlorinated biphenyls (PCBs),
dioxin, and other toxic chemicals. Sarah Frey, Kevin Enright,
and the organization Protect Our Woods (to whom we refer
2 No. 03-3877
collectively as “Frey”) are before us once again, trying to
invoke the citizen suit provision of the Comprehensive
Environmental Response, Compensation, and Liability Act
of 1980 (CERCLA). That law, in general, permits a plaintiff
to challenge cleanup efforts at Superfund sites once the
Environmental Protection Agency (EPA) and other responsi-
ble parties proclaim their work to be completed. 42 U.S.C.
§ 9613(h)(4); Frey v. EPA, 270 F.3d 1129, 1133 (7th Cir. 2001)
(Frey I). Frey argues that her suit meets the statutory cri-
teria, because EPA has completed the excavation of PCBs
and has not yet selected further remedies. The district court
saw matters differently; it found that Frey’s action was
(still) premature because EPA has made it clear that it is
studying further cleanup options for the three sites chal-
lenged in this lawsuit: Lemon Lane Landfill, Neal’s Land-
fill, and Bennett’s Dump. We conclude, however, that
because EPA has failed to provide any objective referent by
which to measure its progress, Frey is finally entitled to her
day in court. We reverse.
I
On January 4, 1983, the United States initiated a civil
action under CERCLA, 42 U.S.C. §§ 9601 et seq., against
Viacom (formerly the Westinghouse Electric Corporation and
then the CBS Corporation, until it merged into Viacom) to
clean up two PCB contaminated dump sites in Bloomington,
Indiana. After the City of Bloomington sued Viacom in con-
nection with two other contaminated sites, the cases were
consolidated and an additional two sites were added, bringing
the total to six. In 1985, the parties entered into a consent
decree that directed Viacom to excavate fully (meaning
literally down to bedrock) and incinerate the PCBs at the
six sites. This plan proved to be controversial, because it
required Viacom to construct an incinerator. In 1988, Frey
filed suit to challenge the proposed incineration remedy; we
No. 03-3877 3
dismissed that action for lack of subject matter jurisdiction.
Schalk v. Reilly, 900 F.2d 1091, 1096-97 (7th Cir. 1990).
Although Frey’s lawsuit was unsuccessful, the Indiana
State Legislature acted in 1991 to block construction of the
incinerator. This forced the parties to the consent decree
into further negotiations to find alternative remedies for the
contaminated sites. In the course of these discussions, EPA
and Viacom came to an impasse. Viacom believed that it
should be required only to excavate highly contaminated
soil (known as “hot spots”), while EPA took the position that
hot spots excavation would be appropriate only if water
treatment and sediment removal were included as part of
the alternative remedy. In 1997, the district court issued an
order stating that the sites had to be remediated by 1999.
To assist the parties in breaking the deadlock in time for
the 1999 deadline, the court appointed a special master
“to see that the aims of the consent decree are carried out
expeditiously and to resolve possible disputes between the
parties.” The special master’s report recommended that the
remediation deadline be moved back one year to 2000. It
noted that the parties had reached agreement on some
alternative methods of PCB excavation and that they had
also agreed to complete the source control (excavation) work
by the end of 2000. While the excavation work was under-
way, Viacom agreed to investigate water treatment and sedi-
ment remediation solutions at the three sites. According to
the schedule proposed by the special master, the parties were
to “engage in further settlement negotiations regarding water
treatment and sediment removal aspects of remediation at
Neal’s Landfill and Lemon Lane Landfill, including nego-
tiations for permanent water treatment solutions for these
sites, approximately one year following the completion of
source control activities at each site.” The district court
adopted the special master’s report and recommendations
on February 1, 1999, noting in its order that the schedule
required that excavation work at Neal’s Landfill and
4 No. 03-3877
Bennett’s Dump be completed by the end of 1999 and that
the work at Lemon Landfill be completed by the end of
2000. It instructed the parties to engage in further set-
tlement negotiations regarding the water treatment and
sediment removal phases of the remediation.
After the incinerator option was abandoned, EPA took
steps to select a new source control remedy for excavation
of PCBs at the three sites. The National Oil and Hazardous
Substances Pollution Contingency Plan (NCP), 40 C.F.R. Pt.
300, establishes the criteria and procedures to be followed
in comparing remedial alternatives and choosing a re-
sponse. This regulatory process requires EPA to develop a
list of effective remedial alternatives and to assess their
feasibility. Id. at § 300.430(d) & (e) (describing the Remedial
Investigation/Feasibility Study phase). After each alterna-
tive is evaluated against nine established criteria, EPA
selects a preferred remedy and presents it to the public in
a proposed plan for review and comment. Following a period
of public comment, including the possibility of a public
meeting, EPA selects a final remedy and memorializes it in
a public document called a Record of Decision (ROD). Id. at
§ 300.430(f)(3)(F).
On March 29, 1999, EPA issued an amendment of the ROD
for the “source control operable unit” for Neal’s Landfill.
This document explained that the original remedy for
Neal’s Landfill called for the excavation of 320,000 cubic
yards of PCB contaminated landfill material and treatment
through construction of an approved waste-fired inciner-
ator. The modified remedy called for the excavation and
removal of material with a high level contamination (the
hot spots) to be followed by the construction of a landfill
cap. Prior to adopting the hot spots excavation remedy, EPA
considered alternatives, including the total excavation of
the landfill. It concluded that the hot spots remedy was
superior to total excavation in light of the nine regulatory
criteria. As required by the regulations, EPA took public
No. 03-3877 5
comment and held a hearing in Bloomington on the pro-
posed remedies. This ROD Amendment dealt only with the
source control component. It stipulated that “[s]ubsequent
actions are planned to address fully the principal threats
posed by this site. Future remedial decisions will be made
regarding additional interim and final water treatment and
sediment removal.”
On May 12, 2000, EPA issued a ROD Amendment for
Lemon Lane Landfill. EPA again adopted the hot spots
excavation technique for PCB removal after considering
other alternatives, including total excavation. It explained
that the new ROD Amendment “only addresses source con-
trol measures, and future remedial decisions will be made
regarding treatment of contaminated groundwater . . . .”
When Frey brought the present suit, the materials we
have been discussing were presented to the district court.
EPA also offered an affidavit and testimony from Thomas
Alcamo, the Remedial Project Manager responsible for di-
recting and overseeing the cleanup activities at the three
sites. Alcamo also oversaw the development of the specific
remedial approaches adopted by EPA. Alcamo’s affidavit
establishes that water and sediment investigations are “in
progress” at all three sites. He confirmed that all of the work
in connection with the bureaucratically dubbed “source con-
trol operable unit” at Neal’s Landfill was completed in
November 1999, including the excavation and off-site dis-
posal of 41,747 tons of PCB contaminated material. He
further explained that, pursuant to the 1985 consent decree,
Viacom had constructed a water treatment plant at Neal’s
Landfill that became operational in 1990. EPA was still
“evaluating the need based upon risk for expanding the
Viacom water treatment plan including increasing the vol-
ume of spring water to be captured and treated, storage of
storm water and adding additional water processing equip-
ment to decrease the PCB concentrations in the effluent.”
He also indicated that EPA was “concurrently evaluating
6 No. 03-3877
based upon risk to both human and ecological receptors the
need to remove PCB contaminated sediments from [sur-
rounding creeks].”
Turning to Lemon Lane Landfill, Alcamo’s affidavit rep-
resented that the “source control operable unit” correspond-
ing to that site was completed in November 2000. It in-
volved the excavation and off-site disposal of 80,096 tons of
PCB contaminated material. After EPA determined that the
landfill had contaminated the Illinois Central Spring (ICS),
EPA funded the construction of an interim water treatment
plant that became operational in May 2000. With respect to
what Alcamo described as the water operable unit, he said
that EPA was still “evaluating the need to increase storm
water storage, the need to add additional process equipment
based upon discharge criteria developed by the Indiana
Department of Environmental Management to reduce the
PCBs from the water treatment plant effluent, the need
based upon risk to human and ecological receptors to treat
additional springs near the Lemon Lane site, and the
ability to capture and treat PCB contaminated water closer
to the Lemon Lane site.” As with Neal’s Landfill, EPA is
concurrently evaluating the need to remove PCB contami-
nated sediments from nearby streambeds.
The soil and excavation activities at Bennett’s Dump,
which involved excavation and off-site disposal of 36,157
tons of PCB contaminated material, were completed in
November 1999. Although contaminated sediment was re-
moved from the banks of a nearby creek, EPA discovered
that PCBs have continued to leak from the site into an ad-
jacent creek. Alcamo stated that “Viacom is implementing
a groundwater investigation plan to allow EPA to better
understand the site’s hydrology,” and that EPA intended to
take further action once Viacom gives it whatever informa-
tion the new investigation reveals. Alcamo testified that
groundwater investigations generally take a longer period
of time than excavation activities.
No. 03-3877 7
Dorothy Alke serves as the Project Manager for Viacom’s
cleanup efforts in Bloomington. According to Alke, when the
parties to the consent decree considered alternative excava-
tion remedies, EPA had not yet decided on water treatment
or sediment remedies for the three sites. At this time, Viacom
and EPA disputed Viacom’s liability for various cleanup
costs. This impasse was resolved by the special master’s re-
port, and Viacom then implemented the negotiated exca-
vation remedies at the three sites. Alke claimed that when
EPA first proposed the concept of additional water treat-
ment, Viacom was willing to investigate and negotiate about
such remedies, and to consider including them as part of an
overall solution. She confirmed that Viacom was under-
taking a series of groundwater investigations.
The record establishes that the hot spots were excavated
at Neal’s Landfill by November 1999 and at Lemon Lane
Landfill by November 2000. PCB contaminated soils and
sediments were excavated from Bennett’s Dump in the fall
of 1999, and again in September 2000. Water and sediment
contamination has not yet been fully addressed at any of
the sites, although investigation and testing continue. Frey
is before us again, alleging that the excavation remedy se-
lected by EPA has failed to bring the sites into compliance
with CERCLA and other environmental statutes. Her abil-
ity to litigate this question, however, is limited by the “Tim-
ing of review” provision set out in CERCLA § 113(h), 42
U.S.C. § 9613(h), which we have twice interpreted as
requiring a citizen seeking to challenge a remediation action
to wait for the selected action to be completed. Frey I, 270
F.3d at 1133-34; Schalk, 900 F.2d at 1095. We elaborated
on this point in our prior opinion when we explained that
the time limits in § 113(h) are “geared to concrete, existing,
remedial measures; not measures that might be devised at
some future date.” Frey I, 270 F.3d at 1134 (distinguishing
between “active steps designed to clean up a site” and “hypo-
thetical” future possibilities).
8 No. 03-3877
Contending that concrete and existing remedial measures
are still underway at all three sites, EPA moved for sum-
mary judgment on the ground that Frey’s action is barred by
§ 113(h). Frey responded that EPA’s only “selected” remedy,
the hot spots excavation, has been completed and no further
remedies have been “selected” pursuant to federal regula-
tions. The district court found that “the targeted excavation
has been completed at each site. To date, the EPA has not
selected a remedy for water treatment and sediment
removal for any of the sites at issue.” Nonetheless, the
district court concluded that Frey’s action was premature
because “active remedial planning” was underway. It
granted EPA’s motion for summary judgment. Frey appeals.
II
The parties agree on little in this case, including the basic
question of what standard of review applies. Frey contends
that we should apply a de novo standard because the case
presents a question of statutory interpretation decided on
summary judgment. EPA urges us to apply the “clearly
erroneous” standard, on the theory that the case at bottom
involves the application of facts to a legal rule. Jurcev v.
Cent. Comm. Hosp., 7 F.3d 618, 623 (7th Cir. 1993), cert.
denied, 511 U.S. 1081 (1994).
In our view, Frey has the better of the argument. Al-
though it is true that Jurcev held that the clearly erroneous
standard may be applied to cases in which “(1) the facts are
undisputed, (2) the trial court is merely applying the law to
the facts, and (3) the nonmoving party has made no request
for a jury trial,” id. at 623, this case does not fit that
pattern. The trial court was not merely applying undisputed
legal principles to agreed facts. Rather, this case raises a
question of statutory interpretation, and thus the proper
standard of review is de novo. Zambrano v. Reinert, 291
F.3d 964, 968 (7th Cir. 2002).
No. 03-3877 9
III
CERCLA provides the statutory framework that guides
cleanup of hazardous waste sites. To ensure that cleanup
efforts would not be impeded by litigation, Congress enacted
§ 113(h), which provides in relevant part:
No Federal court shall have jurisdiction . . . to review
any challenges to removal or remedial action selected
under section 9604 of this title, or to review any order
issued under section 9606(a) of this title, in any action
except one of the following: . . . .
(4) An action under section 9659 of this title (relating
to citizens suits) alleging that the removal or reme-
dial action taken under section 9604 of this title or
secured under section 9606 of this title was in violation
of any requirement of this chapter. Such an action
may not be brought with regard to a removal where
a remedial action is to be undertaken at the site.
42 U.S.C. § 9613(h) (emphasis added). Frey has offered a
straightforward interpretation of this language for our con-
sideration: a citizen may bring suit once a “selected” remedy
has been completed. She contends that EPA’s only “selected”
remedy, the excavation of PCBs adopted in the ROD
Amendments, is now complete. Since EPA has not yet “se-
lected” a remedy (through a ROD Amendment) to address
the groundwater or sediment contamination, there is no
remedial action that remains to be completed. Accordingly,
Frey reasons, her suit may now go forward.
EPA has failed to offer an alternative interpretation of
the statutory language. Instead, it hangs its hat on lan-
guage from Frey I that says that a citizen suit may not go
forward when only one stage of a broader remediation plan
has been completed. In our prior opinion, we said that “[t]he
statute does not say ‘a remedial action,’ or ‘a stage of a
remedial plan.’ Instead, it calls flatly for restraint from suit
when ‘remedial action’ (period) remains to be done.” 270
10 No. 03-3877
F.3d at 1134 (emphasis added). EPA contends that the
excavation of PCBs is simply one stage of its proposed plan,
and that Frey’s suit is therefore prohibited until all phases,
including water and soil remediation, have been completed.
But EPA’s position avoids the real question here, which
is whether the record shows that only a stage has been com-
pleted, or if it shows that an entire remedial measure has
been completed. At oral argument, EPA’s counsel asserted
that the agency’s ongoing investigation and testing of
groundwater and soil contamination precludes review under
the statute. But what if EPA decides to study the contamina-
tion for an indeterminate period of time without taking any
remedial action? Counsel had no response when asked
whether the statute precludes review if EPA claims that it
will take action, after further study, at some point before
the sun becomes a red giant and melts the earth. We then
asked counsel whether a reviewing court could invoke the
Administrative Procedures Act (APA), 5 U.S.C. § 706(1), to
compel agency action unlawfully withheld or unreasonably
delayed, if EPA dragged its feet for decades. Counsel informed
us that a court could not act under these circumstances
because CERCLA’s rules governing judicial review override
the APA. See 5 U.S.C. § 702 (stating that Administrative
Procedures Act review is not available when “any other
statute that grants consent to suit expressly or impliedly
forbids the relief which is sought”); Schalk, 900 F.2d at
1097. We can only conclude from this exchange that EPA
considers itself protected from review under CERCLA
§ 113(h) as long as it has any notion that it might, some day,
take further unspecified action with respect to a particular
site.
There is no support in the statute for such an open-ended
prohibition on a citizen suit. Frey I spoke of “active steps
designed to clean up a site” and held that “the time limits
in § 113(h) are geared to concrete, existing, remedial mea-
sures; not measures that might be devised at some future
No. 03-3877 11
date.” 270 F.3d at 1134. For EPA to delay Frey’s suit, it
must point to some objective referent that commits it and
other responsible parties to an action or plan. No such ob-
jective evidence exists in this record. There is no timetable
or other objective criterion by which to assess when EPA’s
amorphous study and investigation phase may end. The
special master’s report, adopted in 1999 by the district
court, instructed EPA and Viacom to negotiate permanent
water treatment solutions for the sites “approximately one
year following the completion of source control activities at
each site.” Source control activities were completed in 1999
and 2000, yet EPA concedes in its brief on appeal that no
permanent water or soil treatment remedies have been
adopted to date. At argument, EPA’s counsel alluded to the
possibility of further measures in 2005 or 2006. We are un-
impressed with this vague reference, unsupported by any
timetable in the record.
In its ROD Amendments, EPA referred to future “operable
units” that will be implemented to address the contaminated
groundwater and sedimentation once excavation has been
completed. See 40 C.F.R. § 300.430(a)(1)(ii)(A) (discussing
use of “operable units” in remediating contaminated sites).
We recognize that environmental regulations may call for
a phased approach in expediting total site cleanup. Id. And
it is quite clear that EPA is entitled to gather data and as-
sess alternatives before selecting an appropriate response.
But the data collection and analysis must proceed with
some level of transparency. EPA cannot preclude review by
simply pointing to ongoing testing and investigation, with
no clear end in sight.
Frey offers one solution to this problem. She asks us to
read the text of § 113(h) narrowly to preclude review only
when EPA has selected a remedy through its Record of
Decision process. Frey concedes that if EPA had selected a
final remedy for all three operable phases (excavation,
12 No. 03-3877
water treatment, sediment treatment) through a ROD, she
could not bring suit until all three remedies had been fully
implemented. But it did not do so. In this case, she contends,
plans for groundwater and sediment remediation cannot
reasonably be characterized as later stages of the excava-
tion remedy that EPA has already selected.
Frey is correct insofar as there is no evidence of any kind
that EPA will be doing anything specific in the future with
this site. We do not go so far as to hold that EPA must have
issued either a ROD or a ROD Amendment before it obtains
the breathing room afforded by § 113(h). We conclude only
that there must be some objective indicator that allows for
an external evaluation, with reasonable target completion
dates, of the required work for a site. (Although we are sure
that EPA would not try to avoid the statute by submitting
a 100-year plan, we note that such a target date would
obviously be unreasonable.) Neither the consent decree nor
the special master’s report serves as an objective measure
here. Instead, we see only a desultory testing and investiga-
tion process of indefinite duration.
We address one final point. Section 113(h)(4) bars suit “with
regard to a removal where a remedial action is to be under-
taken at the site.” The district court noted that § 113(h)(4)
bars lawsuits when “the process of investigation and anal-
ysis—by definition a ‘removal’ action—is underway in order
to determine what ‘remedial’ action is to be taken.” Thus,
the district court found that Frey’s complaint was prema-
ture. This language might be read to suggest that the
district court thought that Frey was challenging a removal,
rather than a remedial, action. This, in any event, is a
theme that Viacom has advanced on appeal: it argues that
its ongoing investigations are part of a removal action
under the statute. It is incorrect.
CERCLA response actions fall into two categories: removal
and remedial actions. Removal refers to a short-term action
No. 03-3877 13
taken to halt risks posed by hazardous wastes immediately.
Remedial actions involve permanent solutions, taken instead
of or in addition to removal, such as the destruction of haz-
ardous materials. 42 U.S.C. § 9601(23) & (24); Schalk, 900
F.2d at 1092 n.1; State of Alabama v. EPA, 871 F.2d 1548,
1551 n.1 (11th Cir. 1989). This case concerns a challenge to
a remedial action, because it deals with “actions consistent
with permanent remedy” including excavation and destruc-
tion of hazardous materials. 42 U.S.C. § 9601(24). Further-
more, EPA’s Remedial Project Manager stated unequivocally
that this is a remedial action.
Viacom points out that the following phrase in the defini-
tion of removal encompasses the testing and investigation
of water and sediment contamination: “such actions as may
be necessary to monitor, assess, and evaluate the release or
threat of release of hazardous substances.” A reading of the
full definition, however, indicates that removal is concerned
with minimizing and mitigating damage from the “threat of
release” of a hazardous substance through measures such as
“security fencing”, “temporary evacuation” and “emergency
assistance.” 42 U.S.C. § 9601(23). This does not describe the
decades-long study and excavation of the PCBs and other
toxins that have contaminated the Bloomington environ-
ment.
We recognize that Congress intended for remedial action
to be complete before permitting judicial review. Frey I, 270
F.3d at 1133; Schalk, 900 F.2d at 1095. Congress did not,
however, intend to extinguish judicial review altogether.
North Shore Gas Co. v. EPA, 930 F.2d 1239, 1245 (7th Cir.
1991). After a very long wait, the citizens of Bloomington
are finally entitled to their day in court.
IV
For these reasons, we REVERSE the judgment of the
district court and REMAND for proceedings consistent with
this opinion.
14 No. 03-3877
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-6-05