Frey v. Environmental Protection Agency, 751 F.3d 461

Bloomington, Indiana PCB contamination sites governed by CERCLA, with three stages of cleanup overseen by EPA and CBS (CBS Corp.).
Stage 1 completed by end of 2000; Stages 2 and 3 ongoing as of the appeal, involving groundwater/sediment remedies and well sampling.
District court held § 113(h)(4) barred review of Stage 2–3 while ongoing, but allowed review of Stage 1 claims not affected by ongoing work.
Plaintiffs—Sarah Frey, Kevin Enright, Protect Our Woods—filed a citizen suit in 2000 challenging RI/FS-like processes and Stage 1 selections, and sought disqualification of the judge.
EPA amended the 1985 consent decree in 2009 to incorporate all Stage 2/3 RODs; plaintiffs argued consent decree issues remained not moot.
Court affirms district court: ongoing stages barred; Stage 1 claims reviewable where not affected by later plans; Buckhannon and related precedents control fees; recusal denied.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 113(h)(4) bars review of Stage 2–3 claims.	Frey argues bar applies to ongoing and future actions.	EPA contends ongoing actions are barred from review.	Bar to review Stage 2–3 claims, ongoing.
Whether Stage 1 claims are reviewable given RI/FS requirements and protective standards.	EPA did not complete RI/FS or choose protective remedies for Stage 1.	RI/FS completed; Stage 1 protective though not the most protective.	Stage 1 claims reviewable; RI/FS completed; Stage 1 protective.
Whether EPA violated consent decree requirements by not seeking a court-modified consent decree before Stage 1.	Consent decree modification was needed; failure mooted issue.	Modification occurred; issue moot.	Consent-decree issue moot; not prevailing.
Whether plaintiffs are prevailing parties under Buckhannon for fee-shifting.	Modification of consent decree in response to suit conferred prevailing status.	Buckhannon bars catalyst theory; no court-ordered change.	Plaintiffs not prevailing parties; fee claim denied.
Whether recusal of the district judge was required.	Judge biased due to related enforcement action.	No extrajudicial bias; routine judicial oversight.	No recusal required.

Frey v. Environmental Protection Agency, 270 F.3d 1129, 270 F.3d 1129 (7th Cir. 2001) (addressed § 113(h)(4) posture and review scope in Frey I)
Frey v. Environmental Protection Agency, 403 F.3d 828, 403 F.3d 828 (7th Cir. 2005) (reaffirmed review framework in Frey II)
Schalk v. Reilly, 900 F.2d 1091 (7th Cir. 1990) (§ 113(h)(4) bar to review after remedy chosen)
North Shore Gas Co. v. Environmental Protection Agency, 930 F.2d 1239 (7th Cir. 1991) (earlier view that § 113(h)(4) withdraws jurisdiction)
Arbaugh v. Y&H Corp., 546 U.S. 500 (2006) (statutory jurisdiction interpreted at word level)
Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598 (2001) (catalyst theory rejected for fee-shifting)
Scott v. City of Hammond, 741 F.2d 992 (7th Cir. 1984) (scope of citizen-suit review under similar provisions)
Reed Elsevier Inc. v. Muchnick, 559 U.S. 154 (2010) (limits on scope of non-jurisdictional review)
Henderson v. Shinseki, 131 S. Ct. 1197 (2011) (judicial review concepts post-Arbaugh)
Little Company of Mary Hospital v. Sebelius, 587 F.3d 849 (7th Cir. 2009) (scope of court review under environmental statutes)