Sarah E. FREY, Kevin Enright, and Protect Our Woods, Inc., Plaintiffs-Appellants, v. ENVIRONMENTAL PROTECTION AGENCY and Gina McCarthy, Administrator, Defendants-Appellees.
No. 13-2142
United States Court of Appeals, Seventh Circuit
Argued Nov. 15, 2013. Decided May 1, 2014.
751 F.3d 461
Brian C. Toth, Attorney, Department of Justice, Environment & Natural Resources Division, Appellate Section, Washington, DC, for Defendants-Appellees.
Before FLAUM and HAMILTON, Circuit Judges, and KAPALA, District Judge.*
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
The remediation work has been divided into three stages. The district court held that
We affirm. The second and third stages of the site clean-ups are currently in progress, so
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);
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 re-
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 can make clean-up of contaminated groundwater and bedrock extremely difficult.
CBS and the government parties eventually agreed on Stages 2 and 3, which address current and future PCB contamination of groundwater and sediment from the sites. These two stages require CBS to assume ownership and operate a water treatment plant at Lemon Lane Landfill and to modify and operate a groundwater collection and treatment system at Neal‘s Landfill. At Bennett‘s Dump, CBS must install a passive drain system to decrease water levels in rain-filled quarry pits, and design, construct, and operate a new water treatment plant and collection trench at the site. CBS also agreed to sample domestic wells periodically at all three sites and to continue all of these activities until the concentration of PCBs in the groundwater is equal to or below EPA effluent limits for one year. Stages 2 and 3 were formalized in three Records of Decision (one per site) in 2006 and 2007. At this time, work on Stages 2 and 3 continues.
In February 2008, the United States filed in the enforcement action against CBS an agreed amendment to the 1985 consent decree that incorporated all six Records of Decision and resolved all claims and counter-claims among the United States, CBS, the State of Indiana, Monroe County, and the City of Bloomington. See United States v. CBS Corp., No. 1:81-cv-448-RLY-KPF, 2009 WL 2230889 (S.D.Ind.2009). A public comment period followed, during which plaintiffs in this case submitted comments on the proposed amendment. In March 2009, after the comment period had ended, the United States moved the district court to enter the amendment. Plaintiffs filed a statement with the court requesting that it not approve the amendment until it had ruled on their case because the two cases presented overlapping issues. (Plaintiffs were not parties in the enforcement action, but this citizen suit and the enforcement action were temporarily consolidated for case management purposes, and plaintiffs were permitted to file statements in the enforcement action if decisions in that case would affect their case.)
After considering plaintiffs’ public comments and statement, the district court approved the agreed amendment in the enforcement action. The court found that the agreed amendment was procedurally and substantively fair, its terms were reasonable and adequate, and it was consistent with the goals and purposes of CERCLA. In particular, the district court found that the EPA had completed the functional equivalent of a remedial investigation and feasibility study (“RI/FS“) for each site and that the EPA had selected remedial actions that would protect human health and the environment. The district court entered the agreed amendment in the enforcement action in July 2009.
B. Procedural Background
Plaintiffs originally filed this separate citizen suit under CERCLA in 2000 while work on Stage 1 was continuing.1 The district court dismissed the lawsuit on two occasions for lack of jurisdiction, citing
Plaintiffs filed their Third Amended Complaint—now the operative complaint in this case—in July 2009. They allege that the EPA failed to complete an RI/FS or its functional equivalent prior to selecting Stages 1, 2, and 3 as required by CERCLA. Plaintiffs also claim that the EPA violated CERCLA‘s mandate to protect human health and the environment by adopting the remedial plans in Stages 1, 2, and 3. Finally, the complaint alleges that the EPA violated CERCLA‘s mandate that settlement agreements be entered as consent decrees. The parties filed cross-motions for summary judgment. Plaintiffs also moved to disqualify the district judge because he had ruled in the related enforcement action.
The district court held that it lacked jurisdiction over claims pertaining to Stages 2 and 3, reasoning that work on those stages was continuing, so
II. Discussion
Plaintiffs argue on appeal that
A. Scope of Review
We begin by determining the scope of our jurisdiction. Although neither party challenges our jurisdiction, we must satisfy ourselves as to our jurisdiction over a case. E.g., Wernsing v. Thompson, 423 F.3d 732, 743 (7th Cir.2005).
Our cases interpreting
Having previously held in this same case that
In Frey II, we concluded that the EPA had not provided an objective indicator that further work was planned at the sites. Id. at 830. Plaintiffs were therefore entitled to judicial review of their claims about Stage 1, which was at that time the only concrete action planned at the site. Id. at 834.4 Since that remand, however, the EPA has
There are several possible answers to this question, which the text of
We might instead say that the prior action remains subject to judicial review regardless of the EPA‘s new clean-up plans, but that would also create problems. If the EPA‘s new action is not fully distinct from the old one but rather builds upon and supplements it, we would then lack a meaningful way to review the completed action without also reviewing the new action, which
We think the best approach is to chart a middle path. If the EPA adopts a new remediation plan after an old plan is complete, a court remains able to review citizens’ claims about the old plan that are not directly affected by the new plan. For example, when the new plan targets a different area, pollutant, or polluted medium than the old plan, a court should still be able to review most claims regarding the old plan because the two plans are largely distinct from one another. If the plans overlap, however,
For example, if the old remedial plan addressed soil and water contamination at a site and the new plan addressed only soil contamination at the same site, a court would be able to review claims pertaining to the old plan‘s water remedies but would not be able to review claims about the old
We recognize that these lines may turn out to be difficult to draw in practice. But there is no entirely satisfactory solution to the problem of later remedial actions supplementing prior work at a site, especially one that preserves an appropriate and effective role for judicial review through citizen suits. We think this approach creates the most workable solution. It is consistent with the language of
Turning to the facts before us, the district court correctly concluded that it could not review the ongoing work of Stages 2 and 3 but could review at least some claims about Stage 1. The remedial work of Stages 2 and 3 is ongoing, so
B. Stage 1
The remedial work of Stage 1, on the other hand, is complete, so we can review plaintiffs’ claims about Stage 1 that are not directly affected by Stages 2 and 3. Plaintiffs raise three such claims about Stage 1 on appeal. First, they argue that the EPA failed to prepare the functional equivalent of a remedial investigation and feasibility study (“RI/FS“) before selecting the Stage 1 remedies as required by CERCLA because the EPA did not consider whether Stage 1 would stop all PCB releases into the environment. Second, plaintiffs argue that selecting Stage 1 violated CERCLA‘s mandate to protect human health and the environment because Stage 1 did not stop all releases of PCBs into the environment. Finally, plaintiffs argue that the EPA violated CERCLA‘s mandate that all agreements with parties be entered as consent decrees in the district court because the EPA did not modify the consent decree before implementing Stage 1.
Our review of the EPA‘s actions is limited. What is now
Plaintiffs have not argued that
Given these constraints on our review, we must make sure that plaintiffs’ claims are within the scope of
We proceed to this limited review of the merits. We agree with the district court that the undisputed facts show that the EPA completed the functional equivalent of an RI/FS prior to selecting Stage 1. Contrary to plaintiffs’ assertions, the EPA did consider whether Stage 1, standing alone, would stop all PCB releases from the sites into the environment. It concluded that Stage 1 would significantly improve soil quality at the sites but that further remediation of the contaminated groundwater and sediment would be needed. In other words, the EPA considered Stage 1 to be a good first step toward preventing all PCB releases into the environment from the sites and explained that future steps would be needed to solve the problem fully. The RI/FS regulations did not require more. See
The EPA also determined that Stage 1 was protective of human health
Finally, plaintiffs’ claim that the EPA violated CERCLA‘s consent decree requirement is moot. Plaintiffs’ complaint asked the court to make the EPA amend the 1985 consent decree. The EPA has now filed and the district court has approved an amendment to the consent decree that incorporates all of the Records of Decision for each site. The court could no longer provide meaningful relief, so plaintiffs’ claim is moot. See Cornucopia Institute v. U.S. Department of Agriculture, 560 F.3d 673, 676 (7th Cir.2009).
Plaintiffs argue that rather than declaring their claim moot, we should find them to be prevailing parties and award attorney fees because the EPA amended the consent decree in response to their lawsuit. However, the Supreme Court has rejected this “catalyst theory” for most federal statutes that award attorney fees to prevailing parties. Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598, 605 (2001); Walker v. Calumet City, 565 F.3d 1031, 1033-34 (7th Cir. 2009). Buckhannon held that a plaintiff does not become a prevailing party when her lawsuit brings about a voluntary change in the defendant‘s conduct without a court order that materially alters the legal relationship between the parties. Id.
This circuit has adopted “a strong presumption that Buckhannon applies to each fee-shifting statute that awards fees to ‘prevailing parties.‘” T.D. v. LaGrange School District No. 102, 349 F.3d 469, 475 (7th Cir.2003). For Buckhannon not to apply, the text, structure or legislative history of a particular statute must clearly indicate a different definition of “prevailing party.” Id. Nothing in the text, structure, or legislative history of CERCLA clearly indicates that we should interpret its fee-shifting provision differently from that in Buckhannon, so we see no reason why it should not apply here. See City of Waukesha v. PDQ Food Stores, Inc., 500 F.Supp.2d 1119, 1122 (E.D.Wis.2007) (applying Buckhannon to CERCLA‘s fee-shifting provision); Lucia A. Silecchia, The Catalyst Calamity: Post-Buckhannon Fee-Shifting in Environmental Litigation and a Proposal for Congressional Action, 29 Colum. J. Envtl. L. 1 (2004) (assuming Buckhannon applies to fee-shifting under CERCLA and calling for legislation).
Applying the Buckhannon definition of “prevailing party,” plaintiffs’ claim for attorney fees fails. Plaintiffs’ lawsuit did not result in a court-ordered change in the legal relationship between the plaintiffs and the EPA. Even if we accept plaintiffs’ contention that the EPA amended the 1985 consent decree in response to their lawsuit, plaintiffs were not parties to the enforcement action, so the decree did not change their legal relationship with the EPA. Plaintiffs’ claim regarding the consent decree is therefore moot, and they are not prevailing parties on that claim.
Finally, plaintiffs argue that the district judge should have recused himself from this citizen suit because he had ruled on similar issues in the enforcement action and was therefore biased against them. The argument has no merit. For starters, the enforcement action addressed similar issues because plaintiffs inserted those issues into the enforcement action through both the public comment process and their statement to the court. Plaintiffs’ attempts to cast their participation in the public comment period and enforcement action and the judge‘s consideration of their views in resolving the enforcement action as a due process violation are not at all persuasive. Second, and more fundamental, information a judge has gleaned from prior judicial proceedings is not considered extrajudicial and simply does not require recusal. See United States v. Barnes, 909 F.2d 1059, 1072 (7th Cir.1990) (alleged bias caused by past cases involving the judge and moving party were not grounds for recusal); United States v. Sammons, 918 F.2d 592, 599 (6th Cir.1990) (extrajudicial bias cannot come from the judge‘s prior involvement in related cases).
Judges frequently preside over related cases, including successive appeals and remands between the same parties. This common practice does not violate the Due Process Clauses of the Fifth or Fourteenth Amendments. See, e.g., Withrow v. Larkin, 421 U.S. 35, 48-49 (1975), quoting FTC v. Cement Institute, 333 U.S. 683, 702-03 (1948). Finally, plaintiffs point to no evidence that the district judge displayed “deep-seated bias or antagonism that would make fair judgment impossible,” as required to justify recusal for bias under
Simply put, there is no reason the district judge should have recused himself from this case. His decision not to do so did not deny plaintiffs due process of law.
The judgment of the district court dismissing this action is AFFIRMED in all respects.