Schalk v. Reilly, s. 89-1141
| Decision Date | 30 May 1990 |
| Docket Number | 89-1276,Nos. 89-1141,s. 89-1141 |
| Citation | 900 F.2d 1091 |
| Parties | , 58 USLW 2655, 20 Envtl. L. Rep. 20,669 David SCHALK and Ronald T. Smith, Plaintiffs-Appellants, v. William K. REILLY, Administrator, U.S. Environmental Protection Agency, Defendant-Appellee. Sarah E. FREY and People Against the Incinerator (PATI), an Unincorporated Association, Plaintiffs-Appellants, v. William K. REILLY, in his official capacity as administrator of the United States Environmental Protection Agency, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
David Schalk, Bloomington, Ind., pro se.
Ronald T. Smith, Bloomington, Ind., pro se.
Deborah J. Daniels, U.S. Atty., Indianapolis, Ind., Martin W. Matzen, M. Alice Thurston, Dept. of Justice, Land & Natural Resources Div., Washington, D.C., for defendant-appellee.
Edward L. Rogers, Washington, D.C., Rudolph W. Savich, Bloomington, Ind., for plaintiffs-appellants.
John Blair, Indianapolis, Ind., Richard E. Condit, Washington, D.C., amicus curiae, for Hoosier Environmental Council and Indiana Public Interest Research Group.
Before WOOD, Jr., RIPPLE, and MANION, Circuit Judges.
David Schalk and Sara Frey brought separate citizens suit challenges to a consent decree entered into by Westinghouse and the Environmental Protection Agency (EPA) to clean up hazardous waste sites in and around Bloomington, Indiana. The district court separately dismissed both cases for lack of subject matter jurisdiction. Schalk and Frey appealed, and their cases were consolidated. We affirm.
The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), provides a statutory scheme for cleaning up hazardous substances. These laws allow the EPA to undertake direct removal or remedial action to protect the public health or welfare or the environment when it determines that release of a hazardous substance poses an imminent and substantial danger. The EPA may also determine that the party responsible for the release will take appropriate removal or remedial action. 1
Before remedial action is taken, the site is studied and various cleanup alternatives are considered. The National Oil and Hazardous Substances Pollution Contingency Plan (NCP), 40 C.F.R. Pt. 300 (1983), sets out the criteria and procedures to be followed in comparing remedial alternatives and choosing a response. The NCP in effect when the consent decree in this case was signed required the EPA to prepare a Remedial Alternatives Assessment by signing an Enforcement Decision Document. The Remedial Alternatives Assessment served essentially the same purposes as the present-day Remedial Investigation/Feasibility Study--determining the nature and extent of contamination, then studying the merits of proposed alternatives. After a period of public comment, the EPA was required to select a remedy and memorialize it in an Enforcement Decision Document (now called a Record of Decision).
The statutory authority for citizens suits pursuant to CERCLA was added by the 1986 SARA amendments, section 310, 42 U.S.C. Sec. 9659. The amendments allow a citizen to maintain a civil action against any person or the government for violating any provision of CERCLA. Section 310(a)(2) provides for suits against the President or any other officer of the United States, including the administrator of the EPA, "where there is alleged a failure ... to perform any act or duty under [CERCLA] ... which is not discretionary...." 42 U.S.C. Sec. 9659(a)(2). However, this section is qualified by the phrase "Except as provided in ... section 9613(h) of this title (relating to timing of judicial review)...."
Section 9613(h)(4) provides:
(h) Timing of review
No Federal court shall have jurisdiction under Federal law other than under section 1332 of Title 28 () or under State law which is applicable or relevant and appropriate under section 9621 of this title (relating to cleanup standards) to review any challenges to removal or remedial action selected under section 9604 of this title, or to review any order issued under section 9606(a) of this title, in any action except one of the following:
* * * * * *
(4) An action under section 9659 of this title (relating to citizens suits) alleging that the removal or remedial action taken under section 9604 of this title or secured under section 9606 of this title was in violation of any requirement of this chapter. Such an action may not be brought with regard to a removal where a remedial action is to be undertaken at the site.
In 1983 the United States sued Westinghouse to force cleanup of two landfills where Westinghouse had disposed of polychlorinated biphenyls (PCBs) and other hazardous substances. See United States v. Westinghouse Electric Corp., No. IP 83-9-C (S.D.Ind.1983). The State of Indiana intervened as a plaintiff in that action. That case was consolidated with another involving two other sites. City of Bloomington v. Westinghouse Electric Corp., No. IP 81-448-C (S.D.Ind.1981). Two more sites were brought into settlement negotiations in late 1983.
The parties agreed to a consent decree in December 1984 and immediately released its terms to the public. The decree involved all six sites, and required that comprehensive remedial measures be undertaken at each site. The agreement required the measures to be undertaken in two steps: first, a removal action involving surface excavation and capping of abandoned dump sites; and second, the burning of hazardous wastes in a trash-fired incinerator.
The proposed consent decree was subjected to intensive public scrutiny, including 14 public meetings, media interviews and votes before various city, county and state governmental bodies. None of those meetings was required by federal law. The proposed consent decree was approved and signed by each governmental entity that was a party to the litigation. The consent decree was lodged with the district court on May 20, 1985, pending conclusion of a 30-day public comment period required by Department of Justice regulations. See 28 C.F.R. Sec. 50.7. This comment period was extended by two weeks at the request of the Bloomington Common Council and area residents.
During this period a number of citizens, including plaintiffs David Schalk and Ronald Smith, commented on the consent decree, raising criticisms similar to those put forward in this lawsuit. Among other things, the comments suggested that the consent decree's proposed remedial measures were inadequate, that there was a lack of opportunity for meaningful public comment and review, that other remedial alternatives were not considered, that incineration is not a safe method for disposing of PCBs, 2 and that no adequate written assessment of the potential environmental effects of the remedy had been prepared.
The United States responded to the criticisms in its request that the district court approve the final version of the consent decree. The government noted that other methods of treatment and disposal of PCBs were considered and rejected as unsatisfactory. Further, more opportunities for public comment had already been provided than were legally necessary, although further public participation was planned in connection with the processing of permits required by the consent decree. The government further argued that the incinerator would be required to meet regulatory standards to ensure it did not release significant harmful emissions. Finally, the government pointed out that the application process for an incinerator permit required that a risk assessment, along with the results of a test burn, be submitted and evaluated.
The district court approved the consent decree in August 1985, holding that there were numerous public meetings prior to its acceptance, and that the decree was "fair, adequate, reasonable and appropriate."
In December of 1987, Schalk filed a pro se complaint in the U.S. District Court for the District of Columbia, alleging an "illegal plan to clean up hazardous wastes in and near Bloomington, Indiana" pursuant to the Westinghouse consent decree. Schalk's complaint stated that the administrator of the EPA violated federal law by failing to perform an Environmental Impact Statement pursuant to the National Environmental Policy Act (NEPA), 42 U.S.C. Sec. 4321 et seq., and a Remedial Investigation/Feasibility Study pursuant to 40 C.F.R. 300.68(f), (g), and (h). Schalk's complaint asked the court to order the EPA to submit a document that complied with the written requirements of an Environmental Impact Statement or the Remedial Investigation/Feasibility Study, and to order the EPA to conduct adequate public hearings.
Plaintiffs Sarah Frey and "People Against the Incinerator," a nonprofit corporation, filed a similar complaint in the U.S. District Court for the District of Columbia in February 1988. Frey accused the EPA of taking "unlawful actions" in connection with the plan to clean up hazardous wastes in Bloomington. Frey attacked the EPA's failure to authorize an Environmental Impact Statement, its failure to allow meaningful public participation and its failure to study other potential remedial measures. Frey sought declaratory and injunctive relief that would require EPA to conduct further studies required by the National Environmental Policy Act and select an appropriate remedy "on the basis of proper studies," and without giving any special weight to the agency determination in favor of an incinerator.
Both cases were removed to the Southern District of Indiana, which handled the Westinghouse case. In December of 1988, the district court separately dismissed each complaint for lack of subject matter jurisdiction. The...
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