UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION ENTERED

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 Plaintiff's citizen suit, Plaintiffs must first satisfy the requirements of CERCLA #l13(h), 42 U.S.C #9613(h). Frey v. EPA, 270 F.3d 1129, 1132 (2001). In other words, Plaintiffs must show that the challenged remedial actions are complete. I at 1133-34.

On January 13, 2003, the United States Environmental Protection Agency ("EPA") filed a Motion for Summary Judgment on grounds that the remedial actions talcum at the hazardous waste sites listed above are not complete, and that therefore, Plaintiffs' actions is barred. 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. On March 10, 2003, Plaintiffs filed a Response and Opposition to the Motion for Summary Judgment of the United States. On April 17, 2003, the EPA filed a Reply Memorandum in Support of the United States' Motion for Summary Judgment. On that same date, Viacom filed its Reply Memorandum in Support of the Federal Defendants' Motion for Summary Judgment. Finally, on April 28, 2003, Plaintiffs filed a surreply in response to Viacom's reply brief, and on May 2, 2003, Plaintiffs filed a surreply brief, response to the United States' reply brief.

The court, having read and reviewed the parties' memorandums, the applicable law, and having heard testimony and argument at the evidentiary hearing heald on July 31, 2003, hereby GRANTS the United States' Motion for Summary Judgment.

I. Summary Judgment Standard

Disposition of a case on summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P.56(c). The record ancl all reasonable inferences therefrom must be viewed in the light most favorable to the nonmoving party. National Soffit & Escutcheons, Inc. v. Superior Systems, Inc 98 F.3d 262, 264 (7th Cir. 1996). With these considerations in mind, the court now turns to the facts at hand.

II. Facts

In a series of Enforcement Records of Decision issued in 1983, the EPA selected a cleanup for six sites in Bloomington, Indiana: Anderson Road, Bennett's Dump, Lemon Lane Landfill, Neal's Landfill, Neal's Dump, and the Winston Thomas Facility. The cleanup selected in those decisions was ultimately included within a consent decree, which the court entered on August 22, 1985 in United States et al. v. Viacom, Inc., Nos. IP 83-C-0009 and IP 81-C-0448. That consent decree requires the excavation, removal and destruction by incineration of approximately 650,000 cubic yards of PCB-contaminated materials and other associated materials from defined portions of the six sites and certain streams and creeks around some of the sites.

With respect to the three sites at issue here - Bennett's Dump, Lemon Lane Landfill and Neal's Landfill - Viacom (then Westinghouse) was required to remove all PCB-contaminated materials by excavation, if necessary, down to the bedrock, and to destroy these PCB-contaminated materials by incinerating them in a high temperature incinerator, which Viacom was required to design, construct and operate. In the 1990s, however, the incineration remedy became problematic, as the Seventh Circuit explained in its Frey decision:

In 1991, the Indiana Legislature passed a law aimed at blocking the incinerator. This obstacle pushed the parties - the EPA, the State of Indiana and its Department of Environmental Management, the City of Bloomington, the Bloomington Utilities Service Board, Monroe County, Indiana, and [Viacom] - back to the negotiating table, where they began discussions to modify the consent decree. Frey, 270F.3d at 1131.

In the course of these discussions, the parties could not agree to an alternative remedy for the three sites at issue. Viacom argued that it should be required to excavate only the areas of highly contaminated soil - so-called "hot spots." The EPA responded that "hot spot" excavation is only approppriate if water treatment and sediment removal are included in the alternative remedy.

To resolve the dispute, the district covert appointed a special masster. After a period of public comment, the EPA issued Record of Decision Amendments for the three dump sites. Unlike the earlier consent decree, the new cleanup plans called for "hot spot" excavation. The plans also called for the completion of the targeted excavation, the continuance of negotiations with respect to water treatment and sediment removal at the sites, and the initiation of the necessary investigations to determine the need for interim and permanent water treatment at each site and sediment removal. The plans did not require the installation of an incinerator at any site.

III. Discussion

The issue before the court is whether section 113(h)(4) allows the Plaintifts to bring, this lawsuit now that the targeted excavation is complete, even though the EPA is actively considering additional remedies.

Section 1 1 3(h)(4) 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 sections 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.

The plain language of the statute prohibits lawsuits that are filed before the EPA makes a decision on a remedy. The term removal is defined to include "such actions as may be necessary to monitor, assess and evaluate the release or threatened release of hazardous substances," 42 U.S.C. . 101(23), and a "remedial action" is defined to include "actions consistent with a permanent remedy," 42 U.S.C. # 101(24). Thus, the plain language of the statute bars lawsuits when the process of investigation and analysis-by definition, a "removal" action - is underway in order to determine what "remedial" actions is to be taken.

Plaintiffs' position - that it may sue when one stage of the remedial actions is complete but before further action has been determined was rejected by the court in Cooper Industries v. EPA, 775 F.Supp. 1027 (W.D. Mich. 1991). In Cooper a potentially responsible party sought to prevent the EPA from selecting a remedial action and issuing a Record of Decision without further public participation, arguing that section l13(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 'flare\ . ~! litigations that may delay rapid cleanup . . . [a] principle that is no less applicable where a party seeks injunctive relief on the eve of the EPA's remedy selection and Record of Decision." Id. at 1039.

Moreover, there is nothing in the Seventh Circuit's Frey decision which opens the door to allow Plaintiffs to sue before the EPA makes a decision on a remedy. In fact, the Seventh Circuit made it clear that such an action may not be brought just because certain stages of a remedial plan have been completed, if other stages are yet to be implemented. Frey 270 F.3d at 1134 ("[Section 113(h)] does not say 'a remedial action,' or a stage a remedial plan.' Instead, it calls flatly for restraint from suit when 'remedial action (period) remains to be done. We thus reject the 'staged' approach plaintiffs have suggested."). Instead, the Court distinguished between "the active steps designed to clean up a site and later measures designed to monitor success." Id. The Court reasoned that although section 113(h)(4) barred litigation when the EPA was undertaking "active steps" to implement a remedy, section 113(h)(4) did not preclude an action "merely because there is a hypothetical possibility that later monitoring may lead [the] EPA or the state authorities to devise a follow up remediation plan." Id.

The undisputed evidence reveals that the EPA is conducting investigations and planning to determine which further "active steps" should he taken at the sites. Viacom is undertaking investigations to provide the EPA with the technical data needed to assist the EPA in deciding what active steps to take. The Plaintiffs did not introduce evidence to refute the FPA's position that additional remedial measures are actively being considered at the sites. Thus, the court concludes that active remedial planning is underway, demonstrating that there is more than a hypothetical possibility that the EPA will dedcide to take additional remedial action at the sites.

Finally, the court finds this case is distinguishable from the court's recent decisions in Taylor Farm LLC v. Viacom, Inc., 234 F.Supp.2d 950 (S.D.Ind. 2002). There, Viacom argued that the owners of Neal's Landfill were barred from bringing suit unclear section ll3(h). The court rejected Viacom's argument for three reasons: (1) section 113(h) did not apply because the case was based upon state law as opposed to federal law, and therefore arose under the court's diversity jurisdiction; and (2) the action was akin to a cost recovery action under section 107 of CERCLA, so that the claim fell under the first exception to the section 113(h) bar. Id. at 973. Lastly, Viacom failed to show that the claim would interfere with any remedial action that remained to be performed at the site Id. at 975.

By contrast, Plaintiffs have not filed a cost recovery action against Viacom under state law. Instead, the Plaintiffs challenge the remedial action that the EPA is attempting to complete. Further, the EPA has clearly articulated its position on the record that the remedial action at the sites is not complete; and that additional water treatment and sediment contamination must still be addressed.

For all of these reasons, the court finds that Plaintiffs have not met the requirements of section 113(h)(4), and are therefore precluded from bringing this suit.

IV. Conclusion

For the reasons discussed above, the court finds that Plaintiffs are precluded from bringing this lawsuit pursuant to CERCLA section 113(h)(4). The United States' Motion for Summary Judgment, joined by Viacom, is therefore GRANTED.

SO ORDERED this 27th day of August 2003.

Richard L. Young
United States District Court
Southern District of Indiana