The Supreme Court recently denied certiorari of a Seventh Circuit opinion permitting parties to challenge “completed” phases of a staged remediation under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), even where work in subsequent stages remains ongoing.  The decision in Frey v. Envtl. Prot. Agency, No. 13-2142 (7th Cir. May 1, 2014) addressed the contours of the general statement that U.S. EPA’s decisions in an “on-going” remediation may not be challenged under 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).  Prior to Frey, courts applying this provision had found that parties are prohibited from reviewing ongoing clean-up activities under CERCLA.

Environmentalists sought certiorari arguing that the Seventh Circuit’s holding was too restrictive in that it still required full “completion” of a remediation action before review. “[T]he more reasonable interpretation of the CERCLA statute,” they argued, “is that the ‘completion’ of a remedial action should be held to have occurred, and judicial review allowed, when the construction of the remedy is completed and it is in operation.”  Petition for a Writ of Certiorari, at 23.  The Supreme Court this week denied the petition and let the Seventh Circuit opinion stand.

In the Frey case, the plaintiffs brought a CERCLA citizen suit challenging U.S. EPA’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.”

For more information on the Seventh Circuit’s decision in Frey see our May 8, 2014 blog post Judicial Review of a Superfund Clean-up Can Proceed in Stages.