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When is Judicial Review Available for an Ongoing Federal Superfund Remediation?

The U.S. Supreme Court has recently declined to consider a case centering on the question of when a citizens' group may challenge an ongoing environmental remediation under the federal Superfund law. The Court's decision lets stand a May 2014 ruling by the Seventh Circuit that chipped away at Superfund's general prohibition on legal challenges to ongoing removal or remedial actions.

Environmental investigations and remediations necessarily proceed in a staged fashion. Contamination is identified at a given site, then sampled and analyzed in an "iterative" manner to determine how far it has spread through soil or groundwater. After this so-called delineation, the US EPA (at a federal site) issues a "Record of Decision" that spells out a series of remedial actions that are designed and implemented to protect human health and the environment.

Largely in recognition of this stepwise approach to environmental remediation, Congress drafted Section 113(h) of the federal Superfund statute (formally known as the Comprehensive Environmental Response, Compensation, and Liability Act or CERCLA) to generally bar parties from challenging ongoing remediations. To allow otherwise would invite delay and thwart Superfund's goal of the timely cleanup of hazardous substances.

Despite this general rule, a citizens' group challenged EPA's ongoing remediation of a series of PCB-contaminated Superfund sites near Bloomington, Indiana in the case of Frey et al. v. EPA, 751 F. 3d 461 (7th Cir. 2014). Frey is actually the third in a series of related cases stemming from these same contaminated landfills. In this latest iteration, the Frey plaintiffs challenged the sufficiency of EPA's three-stage remedy for the sites.

The United States District Court for the Southern District of Indiana granted summary judgment to EPA on the Frey plaintiffs' challenge to the first stage of the remediation, and held that CERCLA Section 113(h)(4) barred the challenge to the second and third stages because those were ongoing. The plaintiffs then appealed to the United States Court of Appeals for the Seventh Circuit.

The Seventh Circuit affirmed the lower court, but it also chose to elaborate on when an ongoing remediation may be challenged when one stage is completed and other subsequent stages are not. It stated that Section 113(h)(4) "prevents us from reviewing a finished stage of a broader remediation plan if the execution of the plan itself is not yet complete," but cautioned against interpreting this general rule too strictly. Doing so would run the risk of allowing EPA "to delay citizen suits indefinitely by proposing minor 'further actions' whenever a citizen files suit."

Accordingly, the Seventh Circuit decided that a court is able to review citizens' claims about one stage of a remediation so long as that stage is finished and not "directly affected" by a new plan or stage. The court gave a few examples, but recognized that in practice, defining what "directly affected" actually means will be difficult. In any case, this decision gives citizens' groups some leeway that was not otherwise present on the face of the statute.

Following the Seventh Circuit's decision, the Frey plaintiffs filed a petition for certiorari, but the U.S. Supreme Court (as it nearly always does) denied the petition on July 14, 2014. As a result, the Seventh Circuit's guidance, while not perfect, is one of the most authoritative to date on the issue of challenging an ongoing remediation.

For further information on the Frey case, contact one of the Environmental Attorneys at Periconi, LLC.

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