EPA REPLY MEMORANDUM IN SUPPORT OF UNITED STATES' MOTION FOR SUMMARY JUDGMENT

Plaintiffs brought this action on April 20, 2000, seeking to challenge various aspects of the environmental cleanups at three related hazardous waste sites in the Bloomington, Indiana, area: the Lemon Lane Landfill, Neal's Landfill, and Bennett's Dump. Plaintiffs amended their complaint on March 4, 2003, and recast some of their allegations but did not add any new claims. The United States has moved for summary judgment, arguing that because the remedial actions have not yet been completed at any of these sites, Plaintiffs' claims are barred by CERCLA section 113(h), 42 U.S.C. # 9613(h), and the United States is entitled to judgment as a matter of law.

Plaintiffs' opposition to summary judgment contains several inaccuracies and misstatements, but one fundamental flaw pervades Plaintiffs' argument. Plaintiffs assert that section 113(h) only bars judicial review of formally selected or ordered remedial actions, i.e., a specific remedial option that EPA has selected in a Record of Decision ("ROD") after notice and an opportunity for public comments. See, e.q., Plaintiffs' Mem. in Response and Opposition to the Mot. for Summary Judgment of the United States ("Plaintiffs' Opp."). This extraordinarily narrow view is flatly contradicted by caselaw from the Seventh Circuit and other courts and by the statutory text, and, if adopted, would open a massive loophole in the well-established interpretation of section 113(h).

STATUTORY BACKGROUND

Section 104 of CERCAL authorizes EPA to undertake two broad types of "response actions," i.e., "removal actions" and "remedial actions." 42 U.S.C. # 9604(a)(1). Removal actions may include both information-gathering efforts (e.g, investigation, analysis, and monitoring) and efforts to reduce the release of hazardous substances. See 42 U.S.C. # 9601(23) and 9604(a)(2); 40 C.F.R. # 300.415. Remedial actions are "those actions consistent with permanent remedy taken instead of or in addition to removal actions," and are generally more comprehensive efforts. 42 U.S.C.#9601(24). Section 106 authorizes EPA to, among other things, issue "such orders as may be necessary to protect public health and welfare and the environment. n 42 U.S.C. #9606(a).

an action under section 9659 of this title (relating to citizen suits) alleging that the removal or remedial action taken under section 9604 of this title or secured under section 9606 of this title was in violation of any requirement of this chapter. Such an action may not be.brought with regard to a removal where a remedial action is to be undertaken at the site.

42 U.S.C. # 9613(h)(4).

Plaintiffs assert that there are continuing releases of PCBs at the three sites, and that "no such further remedial action has yet been selected by EPA under CERCLA sections 104 and 106 but-is merely being considered." Plaintiffs' Opp. at 2-3. In Plaintiffs' view, a remedial action is only "selected under section 104" when it is "formally chosen and committed to by EPA under the procedures specified in CERCLA." Plaintiffs elaborate that a remedial action must be "selected or secured under the required CERCLA remedy selection procedures, including the public participation procedures." Id. at 6. Even "definite proposals for future action" do not qualify as remedial actions in Plaintiffs view, until such proposals are "reflected in a ROD." Id.

For example, the United States established in its opening brief that EPA is addressing the threat posed by PCB contamination at the Lemon Lane Landfill in three operable units, or OUs, with each OU focusing on a different aspect of the threat. United States' Mem. in Support of Mot. for Summary Judgment ("U.S. Mem.") at 6-7. The first OU, control of the source of the PCBs, is complete, but the second and third are still in the initial, information-gathering stage, to determine the best remedial options. Id. Plaintiffs do not dispute these facts, they only assert that EPA has not yet "actually selected or secured" the work to be done in these additional OUs.

Plaintiffs' Opp. at 4.

The United States agrees that EPA has not yet selected a remedy for the water and sediments at the three sites, but asserts that this fact is not material to the Court's jurisdiction. Rather, as shown below, section 113(h) bars judicial review even when EPA is in the initial data-gathering stages of a cleanup, just as much as it applies to the implementation of the cleanup once a remedy is selected.

ARGUMENT

A. Section 113(h) Bars Judicial Review of Incomplete Removal and Remedial Actions, Before and After The Remedy Is Selected.

As noted above, Plaintiffs, argument proceeds from a faulty assumption. Section 113 (h)'s bar on judicial review does not begin to apply only when EPA formally selects a remedy in a Record of Decision. Rather, it also applies well before then, when EPA is in the initial data-gathering stages of a cleanup. See Schalk v. Reilly, 900 F.2d 109~, 1097 (7th Cir. 3990) ("challenges to the procedure employed in selecting a remedy nevertheless impact the implementation of the remedy and result in the same delays Congress sought to a-void by passage of [section 133(h)").

Applying Schalk, the court in Cooper Industries. Inc. v. EPA, 775 F. Supp. 1027 (W.D. Mich. 1991), rejected the precise argument Plaintiffs advance here. In Cooper, a potentially responsible party sought to prevent EPA from selecting a remedial action and issuing a ROD without further public participation, arguing that section 113(h) did not bar review because "no response action has yet been selected." Id. at 1035, 1037. The court held that the purpose of the bar on judicial review is to "prevent litigation that may delay rapid cleanup . . . [a] principle that is no less applicable where a party seeks injunctive relief on the eve of EPA's remedy selection and Record of Decision." Id. at 1039.

The plain text of the statute supports this conclusion. As explained above, CERCLA defines "remedial action" broadly, to include "those actions consistent with permanent remedy" of the contamination. 42 U.S.C. . 9601(24). See also Cooper, 775 F. Supp. at 1038 (statute and its legislative history shows Congress intended section 113(h) to cover "all issues that could be construed as a challenge to the response").

Plaintiffs do not contest that EPA is actively gathering information to support additional cleanup decisions at each site. See U.S. Mem. at 6-8. Nor do Plaintiffs contest the statements by Tom Alcamo, EPA's Remedial Project Manager, that (a) additional response action remains to be done at all three sites to address water and sediments, and (b) the water and sediments should be addressed before the Court evaluates the effectiveness of the overall remedy, because the individual OUs were never intended to judged in isolation. Id. at 9, 12. The information gathering and decision making process currently underway here, like the RI/FS process challenged in Cooner, is "consistent with the permanent remedy" for these sites, 42 U.S.C. . 9601(24), and therefore beyond judicial review until after the remedial action is completed.

Plaintiffs' argument amounts to nothing more than an assertion that the first stage of the remedial action is complete at each site, and that EPA has not yet selected a remedy for the additional stages. The Seventh Circuit has already rejected Plaintiffs' argument that section 113(h) allows challenges to completed stages when further remedial action "remains to be done." Frev v. EPA, 270 F.3d 1129, 1134 (7th Cir. 2001). Plaintiffs should not be allowed to relitigate that question here. The only question for the Court in this litigation is whether the removal or remedial actions at the Lemon Lane Landfill, Neal's Landfill, and Bennett's Dump are complete within the meaning of CERCLA section 113(h), 42 U.S.C. . 9613(h). EPA has presented unrebutted evidence that these cleanups are not complete; Plaintiffs only response is that the first stages are complete, and EPA has not yet selected the remedy for the additional stages.

Plaintiffs focus on the Seventh Circuit's instruction that section 113(h) is "geared to concrete, existing, remedial measures; not measures that might be devised at some future time." Frev, 270 F.3d at 1134. From this language, Plaintiffs deduce that "existing remedial measures" must mean removal or remedial actions which have been included in a final record of decision at the time a lawsuit is filed. -Plaintiffs' Opp. at 8.

However, the Seventh Circuit was not so restrictive. The court explained that it was concerned that judicial review not be delayed ``merely because there is a hypothetical possibility that later monitoring might lead the EPA or the state authorities to devise a follow-up remediation plan." Frey, 270 F.3d at 1134. This is not such a case. As the United States' opening brief establishes, the work completed to date was never intended to stand on its own as a remedy. The RODs for Lemon Lane and Neal's Landfill explicitly state that the hotspot excavation is only the first stage of the overall remedy. See, e.q., Record of Decision Amendment for the Source Control Operable Unit at the Lemon Lane Landfill at 21 (attached as Ex. B to Plaintiffs' Opp.) ("All of the alternatives, including complete removal of the landfill, will require additional investigations and subsequent remedy determinations for long-term water treatment and sediment removal in Clear Creek.") (emphasis added); Record of Decision Amendment, Source Control Operable Unit, Neal's Landfill, Monroe County, Indiana at 3 (attached as Ex. C to Plaintiffs' Opp.) ("Subsequent actions are planned to address fully the principal threats posed by this site. Future remedial decisions will be made regarding additional interim and final water treatment and sediment removal.") (emphasis added).

Although no one can know what the precise remedy will look like for water and sediments until the current information- gathering and analysis effort is complete, the need for additional remedial action at these sites is not hypothetical. Nor is this a situation where a remedy is complete and its success or failure is being monitored. See Frev, 270 F.3d at 1134. These are "active steps designed to cleanup a site,' that EPA anticipated would be necessary from the beginning of the remedial process. As such, they are within section 113 (h)'s bar on judicial review until the entire remedy is completed.

B. Plaintiffs' First Amended Complaint does not raise any new claims.

Plaintiffs, original Complaint, filed April 20, 2000, included 12 counts. Plaintiffs' First Amended Complaint, filed March 4, 2003, rearranges these counts, but does not add any new claims to this litigation.

Due to che length of Plaintiffs' Complaint and First Amended Complaint, the United States summarizes the counts in each in, the table below, and the pages on which they begin:

Plaintiffs have dropped their nuisance and state air pollution counts (see Complaint Counts 5 and 7), divided their RCRA and TSCA allegations into separate counts (compare Complaint Count 3 with First Amended Complaint Counts 9 and 10) and added a claim under the National Environmental Policy Act (see First ended Complaint Count 8~. The NEPA claim, howeve w ais and addressed in the briefing on Plaintiffs' TRO motion, and is barred by section 113(h) to the same extent as Plaintiffs' other claims. See, e.q., Schalk, 900 F.2d at 1091, 1097 (barring review of NEPA claims brought pursuant to the APA) ; see acnerallv United States, Opposition to Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction at 7 (filed May 15, 2000).

AS in the original Complaint, Plaintiffs seek both a declaration that EPA and Viacom are in violation of various statutes, and injunctive relief that will halt ongoing remedial actions. See, e.c~, First Amended Complaint at 91 ("the Court should . . . B) Order the Defendants to cease all activities contributing to these violations . . ."). Plaintiffs' Prayer for Relief even goes so far as to specify what remedy EPA should implement:

E) Order that EPA shall issue a new ROD for the Bloomington contaminated sites that provides for complete removal of the contamination from the sites and eventual treatment of the removed waste using non- incineration technology (with above ground vaulting of the removed waste until a proper treatment technology and plan can be identified and implemented) . . .

Id. at 92.

This request for relief demonstrates that Plaintiffs' claims, if allowed to proceed at this time, would gut the statutory limit on judicial review and would contravene Congress' fundamental purpose in enacting section 113(h), i.e., to prevent litigation from delaying cleanups. See generally Schalk, 900 F.2d at 1097 ("judicial review itself slows the process down," resulting in the very delay Congress sought to avoid); Alabama v. EPA, 871 F.2d 1548, 1559 (llth Cir. 1989) (a request to enjoin a remedial action plan is a challenge to that plan).

Because Plaintiffs, claims in the First Amended Complaint, like those in the original Complaint, seek judicial review and oversight of remedies that are not complete, the Court should dismiss this action as barred by CERCLA section 113(h).

CONCLUSION

For the foregoing reasons, the Court should grant the United States' motion for summary judgment. Respectfully submitted,

THOMAS SANSONETTI
Assistant, Attorney General
Environement & Nat. Res. Div.

1. In addition, Plaintiffs statements about what is or is not a remedial action, and about how a remedial action is "selected," are legal conclusions and therefore not properly the subject of material facts.