Frey v. Envtl. Prot. Agency

Until the early 1970s, CBS (formerly Westinghouse) manufactured electrical capacitors at a Bloomington plant, using insulating fluid containing PCBs, which are carcinogens to humans and wildlife. CBS deposited defective capacitors at landfills where PCBs escaped and entered the environment and discharged PCB-laden water to a local sewage treatment plant. After PCB contamination was discovered and traced to six sites, federal, state, and municipal governments filed a Comprehensive Environmental Response Compensation and Liability Act (CERCLA), 42 U.S.C. 9600, enforcement action, which resulted in a 1985 consent decree requiring CBS to dig up all PCB-contaminated materials at the sites and destroy them in a high-temperature incinerator. The Indiana legislature blocked the plan. The parties agreed on modified remedies for three sites but were unable to agree on remedies for the Lemon and Neal Landfills and Bennett’s Dump, all on CERCLA’s National Priorities List. The parties negotiated in stages to allow clean up to begin before resolution of all issues and established three phases. Stage 1 required CBS to remove sediment from the landfill contamination hot spots, to clean sediment at Bennett’s Dump to “industrial standards,” and to install caps at all three sites. After CBS completed Stage 1 in 2000, tests showed that PCBs had migrated into the bedrock and were still being released from into water and sediment. Stages 2 and 3 address current and future contamination of groundwater and sediment. In 2009 the district court approved a consent amendment in the ongoing CERCLA action and rejected citizens’ claims with respect to phases two and three. The Seventh Circuit affirmed. Section 113(h)(4) prevents the courts from reviewing claims about stages in progress, but does not bar judicial review of claims about the first remedial stage that are not affected by continuing clean-up efforts.View "Frey v. Envtl. Prot. Agency" on Justia Law