June 30, 2003

On April 20, 2000, Plaintiffs filed a "citizen suit" under the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA"), 42 U.S.C. . 9604 et seq., seeking to challenge various aspects of the environmental cleanups of three related hazardous waste sites in the Bloomington, Indiana area: the Lemon Lane Landfill, Neal's Landfill, and Bennett's Dump. Before the court can entertain Plaintiffs' citizen suit, Plaintiffs must first satisfy the requirements of CERCLA . 113(h), 42 U.S.C. . 9613(h). Frey v. EPA, 270 F.3d 1129, 1132 (2001). Section 113(h) states, in relevant part:

No federal court shall have jurisdiction under Federal law . . . to review any challenges to removal or remedial action selected under section 9604 of this title . . . in any action except one of the following . . .

(4) 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 removal where remedial action is to be undertaken at the site.

Id. at 1133. In Frey, the Seventh Circuit "interpreted this language to mean that a federal court may not hear a citizen suit challenging a CERCLA removal or remedial action until that action . . . [is] complete." Id.

On January 13, 2003, the United States Environmental Protection Agency ("USEPA") filed a Motion for Summary Judgment on grounds that the remedial actions taken at the hazardous waste sites listed above are not complete; thus, Plaintiffs' action is premature. Viacom, Inc. ("Viacom"), the co-defendant in this action, filed a Memorandum Partially Joining and Partially Objecting to the Federal Defendants' Motion for Summary Judgment. Plaintiffs filed a Response and Opposition to the Motion for Summary Judgment of the United States. In their memorandums, the parties dispute whether or not the remedial actions taken by the USEPA are complete at the hazardous waste sites. Since this issue is a necessary prerequisite to Plaintiffs' suit, the court hereby ORDERS this matter set for an evidentiary hearing.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that this matter is set for an evidentiary hearing on the 31st day of July , at 9:30 o'clock Am., in the United States Courthouse, Roomy 46 East Ohio Street, Indianapolis, Indiana, 46204. The Court has allotted 1.5 hours for this hearing.

SO ORDERED this 30th day of June 2003.