THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

INTRODUCTION

The United States, joined in a limited manner by Defendant Viacom, moves for summary judgment arguing that Plaintiffs's citizen suit is premature under the timing of review provision of the Comprehensive Environmental Response Compensation and Liability Act (CERCLA). Defendants assert as the legal basis for their motion that CERCLA section 113(h) restricts the timing of citizen suits until a CERCLA remedial action is completed and assert as their factual basis that the EPA has remedial work yet to do at the three Bloomington hazardous waste sites at issue. However, the Defendants' summary judgment motion is fatally flawed because the Defendants' Motion rests on a fundamental misconception of the law regarding the timing of citizen suits that challenge the efficacy or legality of EPA remedial actions at Superfund National Priorities List (NPL) sites. The law does not entitle Defendants to the relief they seek.

Because EPA and Viacom have completed all remedial actions included in the EPA's current Records of Decision for the three Bloomington NPL sites at issue, and because EPA has not yet, and may never, formally and officially decide to fund and perform, or order Viacom to fund and perform, any additional remedial action(s) at these three sites, the timing of review provision in CERCLA section 113(h) does not prohibit Plaintiffs from bringing their citizen suit now. This is clear from the plain language of the statute and from the recent decision of the United States Court of Appeals for the Seventh Circuit which remanded this matter back to this District Court.

STATEMENT OF MATERIAL FACTS NOT IN DISPUTE THAT PRECLUDE SUMMARY JUDGMENT FOR DEFENDANTS AND SUPPORT SUMMARY JUDGMENT FOR PLAINTIFFS

The facts that the United States asserts as undisputed in its motion at pages 3- 8, with the few exceptions noted immediately infra, are in fact undisputed but these support summary judgment for Plaintiffs not Defendants. These undisputed facts aserted by the U.S., although stated in many different ways, boil down to two key points with which Plaintiffs agree: 1 ) Notwithstanding completion of all PCB soil and material excavation currently required in any EPA ROD, PCBs continue to be released into the environment from each of the three sites at issue in a manner and quantity that requires further action to protect public health and the environment, and 2) No such further remedial action has yet been selected by EPA under CERCLA sections 104 and 106 but is merely being considered.

MATERIAL FACTS ASSERTED BY DEFENDANTS THAT ARE GENUINELY IN DISPUTE

The U.S. asserts in its motion at 3 that the cleanup selected in EPA's 1983 Enforcement Records of Decision was included in the later Consent Decree. This is disputed because the 1983 EDDs on their face require full excavation but do not provide for an incinerator, whereas the Consent Decree as written provides for an incinerator and the Consent Decree as now modified at least de facto does not provide for complete excavation but rather the "hotspot" excavation now completed which Plaintiffs have challenged. See 1983 EDD for Neal's Landfill attached as Exhibit "A", and Record of Decision Amendments for Lemon Lane Landfill and Neal's Landfill, attached as Exhibits "B" and "C" respectively.

The U.S. asserts in its Motion, see e.g. motion at 6, that the PCBs being released from the sites now are from PCBs in bedrock and karst and states or implies that the PCBs remaining in the soil at the sites are not contributing to such releases. Plaintiffs dispute this assertion because there is no substantial scientific reason to believe that the PCBs remaining in soil at the sites are not contributing to the releases of PCBs into the environment from those sites. See Declaration of Sarah Elizabeth Frey, Exhibit "D".

While Plaintiffs do not believe that the U.S. motion and attached EPA affidavit can be read to assert as fact that EPA has selected under CERCLA section 104 or secured under section 106 any remedial actions not yet completed, to the extent Defendants so assert this fact Plaintiffs dispute this fact based on the plain language of the EPA's RODs as amended to date and based on the court record in United States v. Viacom which reflects undeniably that the former Consent Decree remedy has been abandoned. See Exhibits "B" and "C" (also see U.S. admissions in its motion that EPA has yet to select additional remedies, U.S. motion at 9-10). Also see Viacom's memorandum at 5 ("EPA had not selected any such [water treatment or sediment] remedies").

To the extent that the affidavit of Tom Alcamo is read to assert that EPA has actually selected or secured under CERCLA sections 104 or 106 additional "operable units" for the remedy of the three sites, Plaintiffs dispute this asserted fact based on the absence of any such operable units in the existing RODs for the three sites. See RODs, Exhibits "B" and"C".

To the extent that decision of the U.S. motion is deemed to turn on simply whether or not more work remains to be done at the sites (work that has yet to be decided upon and selected by EPA as a remedy under CERCLA), Viacom takes the opposite position of EPA on this question as the U.S. admits in its motion at 11. Thus this fact is clearly disputed, even among the Defendants.

The Defendants assert that the incinerator remedy provided for in the Consent Decree was abandoned because of a law passed by the Indiana Legislature. Plaintiffs dispute this asserted fact because it was several years of public opposition by Plaintiffs and others including Plaintiffs' prior litigation that caused the abandonment of the incinerator. See Frey affidavit, Exhibit

PLAINTIFFS' ARGUMENT IN RESPONSE AND OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

The Defendants' summary judgment motion is fatally flawed because Defendants' Motion rests on a fundamental misconception of the law regarding the timing of citizen suits that challenge the efficacy or legality of EPA remedial actions at Superfund National Priorities List (NPL) sites. The governing principles of law on this issue have been clearly expressed, in part in the plain statutory language of the CERCLA (a.k.a. Superfund), and in part by the Seventh Circuit in the prior appeal in this matter. Those clearly expressed and established principles of law are: a) there is no timing restriction on a citizen suit unless the suit challenges a remedial action selected under CERCLA section 104 or secured under CERCLA section 106, as the statute makes clear; and b) for remedial actions that have been selected by EPA under CERCLA section 104 or secured by EPA under CERCLA section l 06, once the remedial actions as specified in the EPA decision document (Record of Decision or Enforcement Decision Document) have been completed, a citizen suit challenging the efficacy (and legality) of the remedial actions may be brought, as the Seventh Circuit made clear. See, Sarah E. Frey et al. v. Environmental Protection Agency et al., 270 F.3d 1129, 1133-1135 (7th Cir. 2001). The Seventh Circuit likewise made clear that the fact that EPA might decide to take some additional action in the future regarding the NPL site which was the subject of the remedial action is irrelevant and immaterial, the citizen suit may still proceed if the remedial actions officially selected or secured under CERCLA have been completed. Id.

The timing of judicial review limitations in CERCLA section 113(h) apply only to EPA remedial actions that have been selected under section 104 (i.e. already formally chosen and committed to by EPA under the procedures specified in CERCLA) or secured under section 106 (i.e. already formally obtained via court or administrative order under the procedures specified in CERCLA). Consequently, speculative future plans or even definite proposals for future action that have not been selected or secured by EPA formally under the CERCLA procedures and that are not reflected in an ROD or EDD do not preclude or postpone a citizen suit under CERCLA section 113(h). Defendants are not entitled to judgment as a matter of law in the instant case and Defendants' instant motion for summary judgment must be denied because it is undisputed that the remedial actions selected and secured to date by EPA under CERCLA sections 104 and 106 regarding the three Bloomington NPL sites at issue have been completed. Any future remedial actions at these sites by EPA are either purely speculative, or at a minimum not yet selected or secured under the requried CERCLA remedy selection procedures, including the public participation procedures.

Both the United States and Viacom put forth the position that if more work needs to be done at the sites in question, regardless of the status of EPA's remedy selection and decision process, then section l l 3(h) bars the Plaintiffs' cause of action. The effect of such a reading of the Seventh Circuit opinion would be to read section 1 1 3(h) as prohibiting any citizen suit challenge to the efficacy or legality of a remedial action unless the action is completely efficacious, in which case there would be no need for the suit. In other words, the United States and Viacom would have the courts say to plaintiffs, "If you can prove that the site in question poses a danger to human health and the environment, then you cannot maintain an action in federal court because, if you are right, then additional remedial action is needed and the remedial work is not complete. On the other hand, if you cannot prove the site poses a danger, then you have a right to bring your suit now but the suit must fail on the merits because there is no danger yet to be remedied." Such an interpretation of CERCLA section I 1 3(h), apart from being illogical on its face and self serving, is contrary to the language of CERCLA and the Seventh Circuit's analysis and holding in the prior appeal in this case.

The relevant portion of CERCLA . 1 1 3(h) states:

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.

In our view, the middle ground is most consistent with the statute. It is important that the statute itself speaks of "removal where remedial action is to be undertaken at the site." The remedial action to which it refers is logically different from a later effort to ensure that the action was effective.

Because we also see a distinction between the active steps designed to clean up a site and later measures designed to monitor success, we do not believe that this reading would have the undesirable consequence of converting . 113(h) into a silent prohibition on judicial review. See North Shore Gas Co. v. EPA, 930 F.2d 1239, 1245 (7th Cir.1991) (suggesting . 113(h) limitation on the timing of judicial review ought not extinguish judicial review).Nor does our reading suggest that . 113(h) precludes a lawsuit 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. The key word there is "hypothetical." One can always imagine some future action, especially in the area of environmental regulation, but the time limits in . 113(h) are geared to concrete, existing, remedial measures; not measures that might be devised at some future date. 270 F.3d at 1134 (emphasis added).

Thus, judicial review of completed removal or remedial actions cannot be forestalled by the United States asserting that it intends to take, or may take, some yet to be formally selected or secured future removal or remedial actions which have not been included in a final record of decision at the time of filing of a CERCLA citizen suit complaint. Only "existing" remedial measures which have been selected or secured by EPA pursuant to CERCLA sections 104 and 106 and have not been completed will stop a lawsuit from going forward under section 1 1 3(h). The Seventh Circuit Opinion is not ambiguous on these points.

The United States in its motion at I asserts that "there is no genuine issue of material fact that the remedial actions have not yet been completed at any of these sites" but does not make clear whether or not its use of the term "remedial actions" is intended to mean remedial actions already selected or secured by EPA under the CERCLA section 104 and 106 procedures which include ultimately a record of decision specifying the remedial actions EPA has decided upon, or whether the United States means this term simply to reflect that the hazard from the sites has yet to be eliminated even though all EPA remedial actions selected to date are complete. This ambiguity makes the United States' assertion meaningless.

If the United States really means to assert that there are remedial actions that have been formally decided upon and selected or secured by EPA under CERCLA sections 104 and 106 which have yet to be completed at the three sites, then that fact is, at a minimum, genuinely in dispute. However, there is no genuine basis for the Defendants to assert this because there is no Record of Decision that Defendants can produce which identifies any remedial actions already decided upon by EPA which have yet to be completed. By the Defendants' own admission, decisions regarding the nature of any remedial actions that might involve additional soil excavation, water treatment, sediment removal or any other work beyond that already completed and who might fund them have yet to be made by EPA and have yet to be agreed to by Viacom.

It is true that Plaintiffs' position is that the cleanup actions selected and implemented by EPA to date have failed to remedy the hazard posed by the three NPL sites, and thus more remediation is required. This is what Plaintiffs seek as the primary relief in this citizen suit. But if this is what the United States means is undisputed, then the United States' motion actually establishes Plaintiffs' right to summary judgment rather than Defendants. If the United States acknowledges that its remedial actions to date have not been effective in eliminating the hazard to public health and the environment posed by these three NPL sites, then the only matter left for trial is the specific nature of the relief to which Plaintiffs are entitled.

The United States makes this acknowledgment in its Motion at 2 when it says "The current action, if allowed to proceed, will frustrate and delay efforts by EPA to complete the cleanup of the sites;" and in its Motion at 2 when it says "there can be no serious dispute that additional work remains to be done before the 'remedial action' is complete at any of the sites at issue." The U.S. also makes this acknowledgement in its motion at 5 when it states "EPA has long stated that 'hot spot' excavation is appropriate only if water treatment and sediment removal are also included in the alternative remedy." Further, the U.S. admits in its motion at 6 that notwithstanding the completed hotspot excavation at Lemon Lane Landfill "PCBs continue to be released from the bedrock below the site because the contamination has migrated deep into the karst geology under the landfill and is being flushed out by Groundwater, especially during rain events." EPA's Alcamo in his affidavit attached to EPA's motion concedes "PCBs will continue to be released from the site because the contamination has migrated deep into the rock under the landfill and is being flushed out by Groundwater, especially during rain events." Alcamo affidavit at pare. 12. Further, in its motion at 7, the U.S. concedes regarding the Neal's Landfill site that "PCBs continue to be flushed into the Groundwater at higher concentrations during storms" and regarding the Bennett's Dump site that "PCBs continue to be released from Bennett's Dump." Regarding Bennett's Dump, also see EPA's Five Year Review Report (e.g. at 3, "the remedy was constructed in accordance [with] the requirements of the ROD Amendment but the cleanup has not eliminated or reduced PCBs from being released from springs onsite into Stout's Creek"). In addition, the U.S. admits that "the parties to that Consent Decree are actively engaged in an effort to 'fix' the original remedy. To that end, soil excavation has been completed at each of the three sites at issue, but that is simply one stage of the broader remediation required to address the contamination at each site." U.S. Motion at 9. "[T]he work completed at the three sites to date does not, and was never intended to, address all of the risks posed by PCB and other contaminants at these sites." U.S. Motion at 10.

The United States also admits, in its motion at 5 and 7 respectively, that "the targeted excavation has been completed at each site" and "excavation of PCB contaminated materials was finished in 1999." There are no remedial actions beyond this completed "targeted excavation" reflected in the current Records of Decision for these sites. As the U.S. repeatedly states in its motion, additional actions are merely being contemplated, evaluated, pursued and considered via investigations and negotiations. They have yet to be decided, selected or secured. The U.S. concedes that "EPA has not yet selected a remedy for the water and sediments." U.S. motion at 9-l O.

Thus, the United States agrees that the cleanup of the sites is not adequate but cannot produce any Record of Decision specifying any further actions its has committed to take to remedy the on-going hazard. This is a basis for summary decision for Plaintiffs on the Defendants' liability on Plaintiffs CERCLA claim that the EPA's completed remedial actions have not protected public health and the environment and on Plaintiffs' RCRA imminent and substantial endangerment claim.

The United States asserts in its motion at 1 that "the cleanup [remedy] selected by the U.S. Environmental Protection Agency ("EPA") for the sites is set forth in a Consent Decree entered by this Court in 1985 ...." But that remedy which involved building an incinerator has long been abandoned as the record makes clear and the Defendants concede. The fact that Defendants are still "exploring" and "pursuing" alternatives, U.S. motion at 2 and 7, does not provide a basis for postponing Plaintiffs' suit under CERCLA section I 1 3(h) because there has been no EPA decision selecting or securing further remedial actions under CERCLA sections 104 or 106. The United States concedes that the Defendants "have not agreed upon other stages, in particular those pertaining to the treatment of Groundwater, surface water, and sediment contamination." U.S. motion at 2. Thus, there are no further "stages" of the remeidal actions at the sites which have been selected or secured under CERCLA and thus there exists no bar to Plaintiffs' suit under CERCLA section 113(h).

The United States makes mysterious references to "operable units" as if there is a Record of Decision in which EPA has decided on additional remedial actions yet to be completed to be performed in stages or "operable units." There is no such ROD defining additional "operable units." The intentional misuse of this term is a creative attempt by counsel or the EPA to mislead this Court into thinking EPA has decided more than it has decided in its CERCLA decision process to date. The term "operable units" refers to multiple stages of a remedy that has already been decided upon, not something that is speculative, indefinite, merely proposed, contemplated, being investigated or being negotiated. The U.S. disturbingly states "EPA is addressing this aspect of the threat posed by PCB contamination ... in two additional operable units," citing to the affidavit of EPA's Tom Alcamo at para.s 7,12, as if these "operable units" had already been selected or secured by EPA under CERCLA section 104 or 106 procedures. This is an intentional attempt to mislead the Court. A close read of EPA's Alcamo's affidavit at para.s 7 and 9 reveals that Mtr. Alcamo states "EPA will use Record of Decision Amendments with an opportunity for public comment to determine the most appropriate remedies for the water and sediment operable units." Alcamo Affidavit, para.s 7 and 9 (emphasis added). Thus EPA has yet to formally decide on any such operable units and any details of additional remedial action that such operable units might contain, and there is as of yet no ROD that reflects such remedial action decisions by EPA.

The fact that the former Consent Decree remedy which involved full excavation and incineration has been abandoned by the parties to United States v. Viacom but that remedy has not "been fully implemented nor fully replaced by an alternative remedy," U.S. motion at 9, is a result of the Defendants' conscious choices for which they must now accept the legal consequences. This fact is not a defense to Plaintiffs' citizen suit because the Defendants for their own convenience and benefit in the moment chose to abandon the Consent Decree, and chose to select and implement an inadequate hotspot excavation remedial action, and EPA chose not to select or secure under CERCLA sections 104 and 106 to date any additional remedial actions. Now that the only remedial action selected or secured by EPA has been completed, and has by the United States' own admission failed to stop the on-going releases of toxic PCBs into the Bloomington environment, the Defendants must accept the logical consequence of their past self serving decisions and defend against or concede Plaintiffs' citizen suit claims related to the inadequacies of the selected and completed hotspot excavation remedial action.

The United States' attempt to distinguish Taylor Farm LLC v. Viacom Inc., No. IP01-1734-C-M/S (S.D. Ind. Dec. 24, 2002) is unpersuasive. The Court in Taylor Farm found that there was no remedy left to be completed that Plaintiffs' claims were challenging, which is likewise the case here. The United States asserts that in Taylor "the owners of Neal's Landfill were not challenging the remedy selected by EPA." But the government's argument begs the question because it has already conceded in its motion that it has yet to select a water or sediment remedy and its soil excavation remedy is complete. So what is it that EPA has selected as a remedy that is not complete that Plaintiffs' claims challenge or with which Plaintiffs' claims interefere? The United States concedes as it must that in TaYlor "negotiations were too speculative to trigger the Section 113(h) bar." U.S. motion at I I citing Tar at *25. But all EPA has to date in regard to future remedial actions is negotiations in progress, not an ROI) or administrative order.

Conclusion

For the foregoing reasons, this Court should deny the United States' Motion for Summary Judgment as the Defendants are not entitled to relief as a matter of law even if the facts they assert are taken as true in light of the Seventh Circuit decision in the prior appeal in this matter, as well as applicable caselaw and statutory language. In the alternative, genuine issues of material fact exist which preclude summary judgment.

Further, the facts admitted by the Defendants support partial summary judgment for Plaintiffs on their CERCLA claim that EPA's completed remedial actions do not adequately protect public health and the environment and on their RCRA claim of imminent and substantial endangerment, at least in terms of liability.