7th Circuit Court Decsion—April 2005

Five years and three appeals later, a group of local citizens arguing the EPA and CBS Corp. — now Viacom — didn’t properly clean up three hazardous-waste sites in Bloomington will finally get their day in court.

In an opinion issued Wednesday, the U.S. 7th Circuit Court of Appeals returned a case filed in April 2000 by Sarah Elizabeth Frey, Kevin Enright and environmental group Protect Our Woods Inc. to U.S. District Court.

The appeals opinion said the Environmental Protection Agency’s argument that the lawsuit could not move forward because work was still being done at the three sites — Lemon Lane Landfill, Neal’s Landfill and Bennett’s Dump — didn’t hold up because no clear timetable existed for such work.

“For the EPA to delay Frey’s suit, it must point to some objective referent that commits it and other responsible parties to an action or plan,” the opinion said. “No such objective evidence exists in this record.”

Enright said he was pleased the case will move forward.

“My overriding concern is that future generations will be stuck with cleaning this up,” he said.

Attorney Mick Harrison, who is representing the group, said the case will now return to the lower court for trial.

Frey was out of town and couldn’t be reached for comment.

Reached by phone Thursday, EPA spokesman Mick Hans said the agency hadn’t yet seen the opinion.

In its complaint, the group alleges the EPA and CBS Corp. caused irreparable harm to the public by limiting cleanup at the three Bloomington sites to only the most contaminated areas.

As a result, the complaint says, the remaining polychlorinated biphenyls, or PCBs, are still being released into the air, ground and surface water.

In the 1950s and ’60s, dumps and other locations in Monroe and Owen counties were contaminated by an estimated 2 million pounds of PCBs contained in electrical capacitors.

The equipment was manufactured by Westinghouse, which later became CBS Corp., and then Viacom.

The toxins, which do not break down over time, were discovered in the late 1970s. The most contaminated areas, or “hot spots,” were excavated by late 2000.

In August 2003, U.S. District Judge Richard L. Young ruled the group’s lawsuit was premature, based on a federal law that blocks such suits until projects have been completed.

Tom Alcamo, the EPA project manager for Bloomington, said at the time that the agency’s investigative phase for the three sites was wrapping up.

But the appeals court didn’t agree.

“But what if the EPA decides to study the contamination for an indeterminate period of time without taking any remedial action?” the opinion asks. “Counsel had no response when asked whether the statute precludes review if EPA claims that it will take action, after further study, at some point before the sun becomes a red giant and melts the Earth.”

The opinion continued, “After a very long wait, the citizens of Bloomington are finally entitled to their day in court.”

Reporter Bethany Nolan can be reached at 331-4373 or by e-mail at bnolan@heraldt.com.