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.