The Seventh Circuit Court of Appeals has opened the door for judicial review of CERCLA citizen suits challenging the completed portions of some cleanup actions even when cleanup at the site is ongoing. The case is Frey v. EPA, No. 13–2142, __ F.3d __ (7th Cir. May 1, 2014). The Court held that EPA’s “new, concrete plans to conduct further remediation” at a site will not categorically prohibit judicial review of its completed cleanup activities at the site, but will prohibit judicial review only if and to the extent that EPA’s new plans affect its prior, completed work. The decision is notable because CERCLA generally allows for judicial review only when a site clean-up is complete. 42 U.S.C. § 9613(h). The Seventh Circuit, however, will in some cases allow judicial review of the completed portions of cleanup actions even if other work is planned or ongoing at the site.

The Court’s holding – which is now the law of the Seventh Circuit – flows more from practical considerations than from the statutory text. The Court was clearly troubled by the prospect of EPA “delay[ing] citizen suits indefinitely by proposing minor ‘further actions’ whenever a citizen files suit,” and it expressed its view that a citizen’s right to judicial review under CERCLA must be “meaningful.” At the same time, the Court acknowledged “EPA’s interest in being able to clean up sites without being delayed by citizen suits,” including through new work that “builds upon and supplements” the prior work at a site. The Court conceded that it could conceive of “no entirely satisfactory solution” to resolve these competing interests and concluded that “the best approach is to chart a middle path,” which it described as follows: “If 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. . . . In other words, adoption of the new plan does not affect judicial review of claims about the old plan unless the two plans overlap, and only to the extent that they do so.” As examples of how a new plan could be “largely distinct” from a prior plan such that review of all or some of the prior plan could proceed, the Court mentioned that plans might focus on different geographical areas, pollutants, or polluted media (e.g., soil, groundwater, or surface water).

The Court “recognize[d] that these lines may turn out to be difficult to draw in practice.” Indeed, the question of where to draw the line between reviewable and unreviewable aspects of a cleanup is certain to be extensively litigated whenever a citizen suit involves a site where the cleanup activities were broken up into discrete incremental steps, or operable units. The use of operable units is a common and oftentimes necessary practice in CERCLA cleanups, so it may not be long before district courts are called upon to engage in this difficult line-drawing exercise.

On the facts of the case before it, the Court concluded that at least some claims about the initial stage of the cleanup could proceed even though subsequent stages of the cleanup were in progress; it then denied those claims on the merits.