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Friday, May 02, 2014

Ind. Decisions - 7th Circuit decided one Indiana case May 1st

In Sarah Frey v. EPA SD Ind., Young), a 22-page opinion, Judge Hamilton writes:

This environmental dispute stems from the contamination and clean-up of several sites near Bloomington, Indiana, that have been the subject of two prior decisions by this court. See Frey v. Environmental Protection Agency, 270 F.3d 1129 (7th Cir. 2001) (“Frey I”); Frey v. Environmental Protection Agency, 403 F.3d 828 (7th Cir. 2005) (“Frey II”). After our last remand of this citizen suit under the Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”), see 42 U.S.C. § 9659 (citizen suits authorized), the parties filed cross-motions for summary judgment. Plaintiffs Sarah E. Frey, Kevin Enright, and Protect Our Woods, Inc. also filed a motion to disqualify the district judge because of his ruling in a related case.

The remediation work has been divided into three stages. The district court held that § 113(h)(4) of CERCLA, 42 U.S.C. § 9613(h)(4), deprived it of jurisdiction over the plaintiffs’ claims based on the second and third stages because that remedial work was ongoing. The court then granted summary judgment for the defendants (the Environmental Protection Agency and its Administrator) on two of the remaining claims concerning the completed first stage of the remedial work and held that the third claim was moot. The district judge also denied the motion to disqualify him.

We affirm. The second and third stages of the site clean-ups are currently in progress, so § 113(h)(4) prevents the courts from reviewing plaintiffs’ claims about those stages. We also conclude that § 113(h)(4) does not bar judicial review of plaintiffs’ claims about the first remedial stage insofar as they are not affected by continuing clean-up efforts at the sites. The district court correctly granted summary judgment to the EPA on plaintiffs’ claims regarding the first remedial stage. Plaintiffs also are not prevailing parties on their claim that the EPA and its administrator were required to have the court enter agreements between parties as consent decrees. Finally, Chief Judge Young was not required to recuse himself, and his denial of the motion to disqualify did not violate plaintiffs’ right to due process of law.

Posted by Marcia Oddi on May 2, 2014 11:39 AM
Posted to Ind. (7th Cir.) Decisions