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

Sarah Elizabeth Frey, et al., Plaintiffs,
v.
United States Environmental Protection Agency, et al., Defendants.

INTRODUCTION

Plaintiffs brought this action on April 20, 2000, 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. Because there is no genuine issue of material fact that 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), the United States is entitled to judgment as a matter of law and the Court should grant the United States' motion for summary judgment.

The cleanup selected by the U.S. Environmental Protection Agency ("EPA"j for the sites is set forth in a Consent Decree entered by this Court in 1985 in United States, et al. v. Viacom, Inc., Nos. IP83-C-0009 and IP81-C-0448. That cleanup, however, is still underway. In 1994, the parties to the Consent Decree recognized that significant obstacles to key aspects of the remedy had arisen, and hence, they agreed to explore alternative remedies. To date, they are still exploring those alternatives. While the parties to the Consent Decree have agreed upon (and completed) one stage of an alternative remedy for each of the sites at issue, they have not agreed upon other stages, in particular those pertaining to the treatment of Groundwater, surface water, and sediment contamination.

The current action, if allowed to proceed, will frustrate and delay efforts by EPA to complete the cleanup of the sites. Congress included Section 113(h) in CERCLA precisely to prevent this kind of interference, as the Seventh Circuit has recognized. In reversing this Court's prior dismissal of Plaintiffs' action, the Seventh Circuit specifically rejected the Plaintiffs' contention that the statutory bar imposed by Section 113(h) is lifted when a stage of a remedial action is complete. Rather, the Court held that Section 113(h) "calls flatly for restraint from suit when 'remedial action' (period) remains to be done." Frev v. EPA, 270 F.3d 1129, 1134 (7th Cir. 2001).

Here, 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. 'Since neither the original remedy nor an alternative remedy have been completed, the present action is precluded by Section 113(h) as a matter of law. For this reason, the United States respectfully requests that the Court grant the motion for summary judgment.

STATEMENT OF MATERIAL FACTS NOT IN DISPUTE

In a series of Enforcement Records of Decisions issued in 1983, 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. IP83-C-0009 and IP81-C-G448. That 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 site 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.

By the 1990s, however, the incineration remedy became increasingly problematic, as the Seventh Circuit explained in its opinion:

aimed at blocking the proposed incinerator. This obstacle pushed the formal 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, 270 F.3d at 1131. In the course of these discussions, the parties to the Consent Decree agreed on "Operating Principles for Considering Remedial Alternatives," which set forth a four stage process for establishing an alternative to the remedy in the Consent Decree: assemble and assess data for all the sites, placing this data into various administrative records; perform new risk assessments for each site; review and approval process - for instance, EPA would undertake its Record of Decision (ROD) amendment process which includes an opportunity for public comment; and finally presentation of the alternative remedy to the Court.

By 1999, the parties to the Decree had completed this process with respect to the Winston Thomas Facility and Neal's Dump,1 but could not agree upon an alternative remedy with respect to the three sites at issue here. EPA, and the other governmental parties in United States v. Viacom, have consistently maintained that the alternative remedy must generally include three components: control of the source of the contamination; treatment of contaminated water, and removal of contaminated sediments. In contrast, Viacom has maintained that it should be required to remove only "hot spots" within the landfills, and is only obligated to negotiate about additional water treatment and sediment removal. EPA has long stated that "hot spot" excavation is appropriate only if water treatment and sediment removal are also included in the alternative remedy.

To resolve the dispute, Magistrate Judge Kennard Foster, who had already been appointed a Special Master, recc~mended Land the Court approved) 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.

In accordance with this Order, the targeted excavation has een completed at each site, and EPA has continued to investigate nd assess the water treatment and sediment contamination. See Affidavit of Tom Alcamo (Exhibit 1) at `] 4,2 The status of the remedial actions for each site are discussed, in turn, below.

A. Lemon Lane Landfill

The work at the first operable unit, which required targeted excavation and capping of the landfill, id. at ~ 6, was about to get underway when Plaintiffs sought emergency relief, and has since been completed. Id. Although this operable unit involved the excavation of over 80,000 tons of PCB-contaminated material, and destruction of over 4,000 PCB-contaminated capacitors, 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. Id. at 5I 6, 12. EPA is addressing this aspect of the threat posed by PCB contamination, which would be present even if all of the contaminated material had been excavated, instead of just targeted areas, in two additional operable units. Id. at ]] 7, 12.

In the water operable unit, EPA is evaluating the need to increase storm water storage at an interim water treatment plant EPA constructed at the Illinois Central Spring ("ICS") as part of a separate removal action. Id. at ]T 6, 7. EPA is also considering adding additional process equipment to reduce the PCBs from the treatment plant effluent, treating other springs in addition to the ICS, and capturing and treating PCB-contaminated water closer to the Lemon Lane site, which would reduce the volume of water necessary to treat. Id. at 3 7. In the sediment operable unit, EPA is evaluating the need to remove PCB- contaminated sediments from Clear Creek. Id. Viacom is currently investigating Groundwater at Lemon Lane in order to better understand the site's hydrology and to allow EPA to determine the best remedial option. Id. at # 5.

B. Neal's Landfill

The remedy at Neal's Landfill is at a stage similar to that of the remedy at Lemon Lane. At Neal's Landfill, a water treatment plant was built in 1990, and excavation of PCB- contaminated materials was finished in 1999. See Affidavit of Tom Alcamo at ~ 8. As at Lemon Lane, PCBs continue to be flushed into the Groundwater at higher concentrations during storms. Id. EPA is therefore pursuing two additional operable units, one to address water and one to address sediments. The water operable unit is evaluating the need to expand the existing water treatment plant; the sediments operable unit is evaluating the need to remove PCB contaminated sediments from Conard's Branch and Richland Creek. Id. at # 9. EPA has approved and Viacom is currently implementing a Groundwater investigation plan at Neal's Landfill to better understand the site's hydrology ard to allow EPA to determine the best remedial option. Id. at # 5.

C. Bennett's Dump

At Bennett's Dump, the smallest of the three sites at issue here, soil was excavated in 1999 and approximately 10 cubic yards of sediments were removed from Stout's Creek, which is adjacent to the site, in 2000. See Affidavit of Tom Alcamo at ~ 10. However, as at the other sites, PCBs continue to be released from Bennett's Dump. Id. In order to address these continuing releases, EPA approved and Viacom is currently implementing a Groundwater investigation plan at Bennett's Dump to better understand the site's hydrology and to allow EPA to determine the best remedial option. Id. at TI 5, 10.

SUMMARY JUDGMENT STANDARD

ARGUMENT

THE COURT SHOULD GRANT THE UNITED STATES SUMMARY JUDGMENT ON THE STATUS OF THE CLEANUPS AT THE THREE SITES

As the Court set out in its Preliminary Case Management Order, a removal or remedial action is complete when all of the active steps designed to clean up a site are finished. Even if "a stage of a broader remediation plan" is complete, judicial review must wait until the entire remediation is finished. Frev, 270 F.3d at 1134.

Here, as described above, the remedy set forth in the Consent Decree in United States v. Viacom has neither been fully implemented nor fully replaced by an alternative remedy. Rather, 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. Additional work remains to he dine at ~11 three sites to address water and sediments. See Affidavit of Tom Alcamo at ~ 4. Even though EPA as not yet selected a remedy for the water and sediments, EPA is actively collecting the information necessary to make those determinations. Id. at ~ 5. This information collection is not merely monitoring to determine whether the targeted soil excavation succeeded. Rather, it is the first step in EPA's decision-making process to select a remedy for water and sediments. Id. at I] 3, 5. Indeed, the 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. See Affidavit of Tom Alcamo at #13. The soil excavation is but the first element of the overall, ongoing remedy.

This case is distinguishable from the recent decision -`n Tavlor Farm LLC v. Viacom, Inc., No. IPO1-1734-C-M/S (S.D. Ind. Dec. 24, 2002). There, Viacom argued that an action by the owners of Neal's Landfill was barred by CERCLA section 113(h), but Viacom's argument was rejected for several reasons that render the holding inapposite here. First, the Court held that Section 113(h) did not apply because the action, which was based upon state law, arose under the court's diversity jurisdiction. Id. at *22. Second, the Court held that the action was akin to a cost recovery action under Section 107 of CERCLA, so that claim fell under the first exception to the Section '13(h) bar. Id. at 23. Last, Viacom failed to show that the claim would interfere with any remedial action that remained to be performed at the Site. The owners of Neal's Landfill were not challenging the remedy selected by EPA. Moreover, Viacom had painted itself into a corner -- having teed EPA (and this Court) that no further work was required beyond the "hot spot" removal that has already been completed, Viacom could not easily reverse direction and argue that more work was needed. Viacom attempted to finesse this dilemma by arguing that it was required to negotiate with EPA about the possibility of performing additional remedial measures. The Court held that such negotiations were too speculative to trigger the Section 113(h) bar. Id. at *25.

Here, in contrast, Plaintiffs have not filed a cost recovery action against Viacom under state law. Instead, these Plaintiffs have launched a frontal assault on the cleanup that EPA is attempting to complete. Further, EPA (and the other government parties to the Consent Decree) do not share Viacom's view that work under the Consent Decree has been completed. EPA has clearly and repeatedly stated on the record for the past several years that the remediation is not complete, and that additional water and sediment contamination must still be addressed. The Groundwater investigations currently underway at each site are not simply monitoring the degree to which previous cleanups have succeeded or failed. Instead, they represent the information gathering stages of the next phase of the remedy. See Affidavit of Tom Alcamo at paragraph 5. Viacom's unwillingness to concede that it is responsible for implementing whatever remedy EPA selects to address in these upcoming phases of the overall remedy is irrelevant to the issue currently before the Court, i.e., whether EPA is working on concrete, existing remedial measures.

The remedies are not complete, and the water and sediments should be addressed before the Court evaluates the effectiveness of the overall remedy. Id. at ~ 11. Evaluation of the individual components of the remedy, standing alone, would be misleading. Id. Plaintiffs cannot reasonably dispute "the fact that more remains to be done" at each site. Frev, 270 F.3d at 1134. The Court should therefore find that because the remedies at the Lemon Lane Landfill, Neal's Landfill, and Bennett's Dump sites are not yet complete, Plaintiffs' challenges are not timely under CERCLA section 113(h), 42 U.S.C. . 9613(h), and should be dismissed.

CONCLUSION

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

Respectfully submitted,

THOMAS L. SANSONETTI
Assistant Attorney General
Environment & Nat. Res. Div.