937 F. Supp. 2d 964
S.D. Ind.2013Background
- Plaintiffs filed a CERCLA citizen suit on April 20, 2000 challenging cleanup at Lemon Lane Landfill, Neal’s Landfill, and Bennett’s Dump in Bloomington, Indiana.
- The matter flows from a 1985 Consent Decree requiring CBS/Westinghouse to remove PCB-contaminated materials and incinerate them; Indiana opposition prompted modified remedies.
- EPA issued staged operable units (source control first, then groundwater/sediment components) in ROD amendments (1998–2000) with “hot spot” strategies for Lemon Lane and Neal’s and industrial standards for Bennett’s Dump.
- Subsequent risk assessments (2006–2007) identified PCBs migrating through bedrock karst to springs and sediment; three ROD amendments were issued for operable units two and three.
- Agreed Amendment to the Consent Decree resolved claims between the United States and CBS and related parties, with a later court entry confirming the amendment as consistent with CERCLA.
- The court held jurisdictional limits: Counts 4–5 (operable units two and three) not completed; review focused on operable unit one; Frey II and Pollack guide citizen-suit review timing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether EPA fulfilled its nondiscretionary RI/FS duty for operable unit one | Frey-like claim that EPA failed to conduct proper RI/FS | EPA complied via RI/FS functional equivalent in record | EPA fulfilled duty; Count 1 granted to US; Count 1 cross-denied |
| Whether EPA’s actions for operable unit one adequately protected health and environment | Remedy inadequate due to lingering PCBs and air-release risks | Remedy staged across operable units; hotspot removal protective when viewed with OU2–OU3 | upheld overall remedy; Count 2 granted to US; Count 2 cross-denied |
| Whether Counts 3–5 were properly adjudicated given consent decree and jurisdiction | Agreed Amendment improper; seeks fees, declaratory relief, injunctions | Consent decree filed; mootness of Count 3; Counts 4–5 dismissed for lack of jurisdiction | Count 3 moot; Counts 4–5 lack subject-matter jurisdiction; US motion granted on all counts |
Key Cases Cited
- Frey v. Environmental Protection Agency, 403 F.3d 828 (7th Cir. 2005) (citizen suit review limited to completed remedies; Frey II)
- Frey v. Environmental Protection Agency, 270 F.3d 1129 (7th Cir. 2001) (earlier decision establishing review framework for CERCLA citizen suits)
- Pollack v. United States Dep’t of Defense, 507 F.3d 522 (7th Cir. 2007) (remedy review permissible after cleanup is completed)
- Bennett v. Spear, 520 U.S. 154 (1997) (review of nondiscretionary agency duties in citizen suits)
- Scott v. City of Hammond, Ind., 741 F.2d 992 (7th Cir. 1984) (limits citizen-suit review to nondiscretionary duty performance)
- Sierra Club v. Thomas, 828 F.2d 783 (D.C. Cir. 1987) (limits scope of nondiscretionary duty challenges)
- United States v. Sensient Colors, Inc., 649 F.Supp.2d 309 (D.N.J. 2009) (district court denial of citizen-suit challenge to non-discretionary duty)