EPA’s authority to conduct complex Comprehensive Environmental Response, Compensation,  and Liability Act (CERCLA) cleanups in stages and not be subject to citizen suits for ongoing work was affirmed in a ruling by the U.S. Court of Appeals for the 7th Circuit (Sarah E. Frey, et al. v. EPA). 

On the other hand, the court said that an early cleanup stage can be considered complete even if additional work in subsequent stages is required; thereby allowing the early cleanup to be susceptible to CERCLA citizen suits.  The Agency’s discretion in selecting CERCLA remedies that fall short of complete cleanup, as long as they are protective of human health and the environment, was also affirmed by the court.

PCB contamination

The case involves three sites in and near Bloomington, Indiana, that were contaminated by polychlorinated biphenyls (PCBs) released by a facility that manufactured electrical capacitors from the late 1950s to the early 1970s.  Following difficulties in resolving remediation issues, the sites were added to CERCLA’s National Priority List in 1983 and 1984.  The manufacturer reached an agreement with the EPA, the state of Indiana, and the city of Bloomington to conduct the cleanup in three stages.  Under the agreement, agreed-upon work for a stage would proceed while negotiations continued on the cleanup details for the other stages.  Following completion of Stage 1, tests showed that PCBs had migrated into the bedrock and were still being released into water and sediment.

Plaintiffs in the case initiated a series of complaints.  In the complaint addressed by the current decision, they alleged that the EPA failed to complete a remedial investigation and feasibility study (RI/FS) or its functional equivalent before selecting remedies for Stages 1, 2, and 3, as required by Superfund.  Plaintiffs also claimed that the EPA violated CERCLA because its Stage 1, 2, and 3 remedial plans failed to protect human health and the environment.  A district court ruled in EPA’s favor and the plaintiffs appealed.

In-progress cleanups

Much of the 7th Circuit’s opinion addresses CERCLA Section 113(h)(4), which prohibits citizen suits against EPA cleanups that are in progress.  The intent of the section is to prevent constant interruption of cleanups whenever someone decides that the EPA has not met its legal requirements.  Once a cleanup is complete, CERCLA allows citizen suits to proceed. 

The issue in the current case is the relationship between stages of a cleanup.  Specifically, if the first stage is completed, but subsequent investigations determine that pollutant releases addressed in that stage are still occurring, is the first stage therefore incomplete and immune from citizen suits?

According to the 7th Circuit, the answer to this question depends on the nature of EPA’s plans for the succeeding remedial stages.  Specifically, if plans for Stages 2 and 3 address water pollution while Stage 1 addressed soil pollution, Stage 1 is considered complete and the Section 113(h)(4) bar does not apply.  On the other hand, if the Stage 1 remedial plan addressed soil and water contamination and the subsequent plans 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 plan’s soil remedies.

The 7th Circuit said it recognized 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,” said the court. 

RI/FS functional equivalent

In the current case, this view compelled the court to deny the plaintiffs’ petition to review ongoing remediation in Stages 1 and 2, but allowed review of the completed portions in the Stage 1 remediation.  This allowed the court to consider the plaintiffs’ claim that the EPA had completed neither an RI/FS nor its functional equivalent because the Agency had not determined if its remediation plan would stop all PCB releases into the environment. 

The 7th Circuit denied the claim.  According to the court, the EPA met its nondiscretionary decision-making requirements under CERCLA by completing the functional equivalent of an RI/FS.  The court added that the “substance” of EPA decisions is “at least partly discretionary, and therefore beyond the scope of these citizen suit provisions.”  Specifically, the EPA had determined that the Stage 1 remediation would be protective of human health and the environment even though the Agency conceded that additional cleanup work would be needed. 

“To the extent that plaintiffs argue that the EPA did not protect human health and the environment because it did not select the most protective remedy, we note that the EPA is not required to do so,” concluded the court.

Sarah E. Frey, et al. v. EPA