Judicial Review of a Superfund Clean-up Can Proceed in Stages

Schiff Hardin LLP
Ashley L. Thompson and J. Michael Showalter USA

May 8, 2014

A recent Seventh Circuit decision addressed the contours of the general statement that USEPA’s decisions in an “on-going” remediation may not be challenged under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). CERCLA Section 113(h)(4) provides that “[n]o Federal court shall have jurisdiction . . . to review any challenges to removal or remedial action” except during a limited number of actions, none of which allow a plaintiff to challenge an ongoing response action. 42 U.S.C. § 9613(h)(4). Generally, courts applying this provision have found that parties are prohibited from reviewing ongoing clean-up activities under CERCLA.

In Frey v. Envtl. Prot. Agency, No. 13-2142 (7th Cir. May 1, 2014), the Seventh Circuit held that, notwithstanding CERCLA Section 113(h)(4), where a cleanup has been divided into phases, parties may challenge “completed” phases even where other work remains ongoing.  In this case, the plaintiffs brought a CERCLA citizen suit challenging USEPA’s clean-up of polychlorinated biphenyls (“PCBs”) from three former landfills. At the time the plaintiffs filed suit, the agency and the potentially responsible parties had already phased the clean-up into three stages. The first stage of the clean-up was complete. The Seventh Circuit upheld the district court decision permitting review of the first phase on the merits, explaining that “[i]f the EPA adopts a new remediation plan after an old plan is complete, a court remains able to review citizens’ claims about the old plan that are not directly affected by the new plan.”  Id. at *7.

 This article is being provided for informational purposes only and not for the purposes of providing legal advice or creating an attorney-client relationship. You should contact an attorney to obtain advice with respect to any particular issue or problem you may have. In addition, the opinions expressed herein are the opinions of Ms. Thompson & Mr. Showalter and may not reflect the opinions of Synergy Environmental, Inc., Schiff Hardin LLP or either of those firms’ clients.


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