Frey v. Environmental Protection Agency , 751 F.3d 461 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-2142
SARAH E. FREY, KEVIN ENRIGHT, and
PROTECT OUR WOODS, INC.,
Plaintiffs-Appellants,
v.
ENVIRONMENTAL PROTECTION
AGENCY and GINA MCCARTHY, AD-
MINISTRATOR,
Defendants-Appellees.
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:00-cv-0660-RLY-TAB — Richard L. Young, Chief Judge.
ARGUED NOVEMBER 15, 2013 — DECIDED MAY 1, 2014
Before FLAUM and HAMILTON, Circuit Judges, and KAPALA,
District Judge.*
*
Hon. Frederick J. Kapala, of the Northern District of Illinois, sitting by
designation.
2 No. 13-2142
HAMILTON, Circuit Judge. 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
No. 13-2142 3
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.
I. Background
A. Factual Background
The facts underlying this dispute have been laid out in
detail in Frey I and Frey II, as well as by the district court in its
order granting summary judgment, see Frey v. EPA, 937 F.
Supp. 2d 964 (S.D. Ind. 2013), so we limit our discussion to the
facts relevant to this appeal.
This case arises from the contamination and clean-up of
three sites in and near Bloomington, Indiana. From the late
1950s to the early 1970s, CBS (formerly Westinghouse Electric
Corporation) manufactured electrical capacitors at a plant in
Bloomington. The capacitors contained insulating fluid made
up of polychlorinated biphenyls, known as PCBs, which are
carcinogens that are toxic to both humans and wildlife. See
United States Environmental Protection
A g e n c y, “ Po l y c h l o r i n a t e d B ip h e n y l s ( P C B s ) , ”
www.epa.gov/waste/hazard/wastemin/minimize/factshts/pc
b-fs.pdf (accessed May 1, 2014); 40 C.F.R. § 761.20 (imple-
menting the Toxic Substances Control Act, 15 U.S.C. §§ 2601 et
seq.) (“any exposure of human beings or the environment to
PCBs … may be significant”). CBS deposited defective
4 No. 13-2142
capacitors at local landfills and dumps where PCBs escaped
from the capacitors and entered the environment. CBS also
discharged PCB-laden water from its plant to a local sewage
treatment plant.
In the late 1970s, PCB contamination was discovered in the
Bloomington area and traced back to the CBS plant and six
sites around Bloomington. The United States, the State of
Indiana, Monroe County, and the City of Bloomington filed
what we call the enforcement action under CERCLA to make
CBS clean up the sites. The enforcement action seemed to be
resolved in 1985 with a consent decree requiring CBS to dig up
all PCB-contaminated materials at all six sites (down to
bedrock, if necessary) and to destroy them in a high-
temperature incinerator. But the Indiana legislature blocked
construction of the incinerator, forcing the parties back to the
negotiating table.
A new agreement proved elusive. The parties eventually
agreed on modified remedies for three of the six sites but were
unable to agree on remedies for the remaining three: Lemon
Lane Landfill, Neal’s Landfill, and Bennett’s Dump. These
three sites, which had been added to CERCLA’s National
Priorities List in 1983 and 1984, are the sites at issue in this
appeal. To resolve their remaining disagreements, the parties
worked with a special master to approach the clean-up in
stages. When the parties agreed on remedies for a given stage,
CBS could begin work on that stage while the parties
continued to negotiate about further clean-up. Negotiating in
stages thus made it possible to start cleaning up the sites before
the parties had resolved all of their differences.
No. 13-2142 5
This process eventually resulted in three clean-up stages.
Stage 1 addressed PCB contamination at the landfills. It
required CBS to remove sediment from contamination hot
spots at Lemon Lane Landfill and Neal’s Landfill, and to clean
all sediment at Bennett’s Dump to “industrial standards.” CBS
was also required to install a clay landfill cap at all three sites
that would contain any remaining contaminated sediment.
Stage 1 was formalized in three slightly different Records of
Decision, one for each site. The Stage 1 Records of Decision for
Lemon Lane Landfill and Neal’s Landfill required future
remedies for groundwater and sediment contamination. The
Stage 1 Record of Decision for Bennett’s Dump required future
monitoring to detect any remaining contamination after the
required total sediment excavation was complete. CBS
completed work on Stage 1 at all three sites by the end of 2000.
After CBS completed Stage 1, tests showed that PCBs had
migrated into the bedrock and were still being released from
the bedrock into water and sediment. Much of the geology
around Bloomington consists of limestone karst, which is
characterized by fissures, fractures, and conduits that can make
clean-up of contaminated groundwater and bedrock extremely
difficult.
CBS and the government parties eventually agreed on
Stages 2 and 3, which address current and future PCB
contamination of groundwater and sediment from the sites.
These two stages require CBS to assume ownership and
operate a water treatment plant at Lemon Lane Landfill and to
modify and operate a groundwater collection and treatment
system at Neal’s Landfill. At Bennett’s Dump, CBS must install
a passive drain system to decrease water levels in rain-filled
6 No. 13-2142
quarry pits, and design, construct, and operate a new water
treatment plant and collection trench at the site. CBS also
agreed to sample domestic wells periodically at all three sites
and to continue all of these activities until the concentration of
PCBs in the groundwater is equal to or below EPA effluent
limits for one year. Stages 2 and 3 were formalized in three
Records of Decision (one per site) in 2006 and 2007. At this
time, work on Stages 2 and 3 continues.
In February 2008, the United States filed in the enforcement
action against CBS an agreed amendment to the 1985 consent
decree that incorporated all six Records of Decision and
resolved all claims and counter-claims among the United
States, CBS, the State of Indiana, Monroe County, and the City
of Bloomington. See United States v. CBS Corp., No.
1:81-cv-448-RLY-KPF (S.D. Ind.). A public comment period
followed, during which plaintiffs in this case submitted
comments on the proposed amendment. In March 2009, after
the comment period had ended, the United States moved the
district court to enter the amendment. Plaintiffs filed a
statement with the court requesting that it not approve the
amendment until it had ruled on their case because the two
cases presented overlapping issues. (Plaintiffs were not parties
in the enforcement action, but this citizen suit and the
enforcement action were temporarily consolidated for case
management purposes, and plaintiffs were permitted to file
statements in the enforcement action if decisions in that case
would affect their case.)
After considering plaintiffs’ public comments and
statement, the district court approved the agreed amendment
in the enforcement action. The court found that the agreed
No. 13-2142 7
amendment was procedurally and substantively fair, its terms
were reasonable and adequate, and it was consistent with the
goals and purposes of CERCLA. In particular, the district court
found that the EPA had completed the functional equivalent of
a remedial investigation and feasibility study (“RI/FS”) for each
site and that the EPA had selected remedial actions that would
protect human health and the environment. The district court
entered the agreed amendment in the enforcement action in
July 2009.
B. Procedural Background
Plaintiffs originally filed this separate citizens suit under
CERCLA in 2000 while work on Stage 1 was continuing.1 The
district court dismissed the lawsuit on two occasions for lack
of jurisdiction, citing CERCLA § 113(h)(4)’s bar on citizen suits
“where a remedial action is to be undertaken at the site.”
42 U.S.C. § 9613(h)(4). We reversed on both occasions, finding
that at those times any plans for future remedial action were
too tentative to trigger § 113(h)(4). See Frey I, 270 F.3d at
1133-34; Frey II, 403 F.3d at 829.
Plaintiffs filed their Third Amended Complaint—now the
operative complaint in this case—in July 2009. They allege that
the EPA failed to complete an RI/FS or its functional equivalent
prior to selecting Stages 1, 2, and 3 as required by CERCLA.
Plaintiffs also claim that the EPA violated CERCLA’s mandate
to protect human health and the environment by adopting the
1
In 1988, Frey had filed an earlier suit that was dismissed for lack of
jurisdiction pursuant to CERCLA § 113(h)(4). We affirmed the district
court’s dismissal. See Schalk v. Reilly, 900 F.2d 1091 (7th Cir. 1990).
8 No. 13-2142
remedial plans in Stages 1, 2, and 3. Finally, the complaint
alleges that the EPA violated CERCLA’s mandate that
settlement agreements be entered as consent decrees. The
parties filed cross-motions for summary judgment. Plaintiffs
also moved to disqualify the district judge because he had
ruled in the related enforcement action.
The district court held that it lacked jurisdiction over claims
pertaining to Stages 2 and 3, reasoning that work on those
stages was continuing, so § 113(h)(4)’s bar applied. The court
then granted summary judgment for the EPA on all claims
regarding Stage 1, holding that the EPA had completed the
functional equivalent of an RI/FS for Stage 1 and had selected
remedies for Stage 1 that were protective of human health and
the environment. The court also held that plaintiffs’ claim that
the EPA violated CERCLA’s consent decree requirement was
moot because the consent decree had by then been amended.
Finally, the judge declined to recuse himself because his prior
ruling in the enforcement case did not stem from an
extrajudicial source and thus was not a ground for recusal.
II. Discussion
Plaintiffs argue on appeal that § 113(h)(4)’s prohibition on
judicial review does not apply to any of their claims and that
the district court should have ruled on their claims regarding
Stages 2 and 3. They also ask us to order summary judgment
in their favor on all Stage 1 claims.2 Plaintiffs claim that, on the
2
Plaintiffs argue in their reply brief that summary judgment for EPA
should be denied on plaintiffs’ Stage 1 claims because disputes of material
(continued...)
No. 13-2142 9
undisputed facts, the EPA did not complete the functional
equivalent of an RI/FS prior to selecting Stage 1; Stage 1
violated CERCLA’s mandate that remedies protect human
health and the environment; and the EPA violated CERCLA’s
requirement that all settlement agreements be entered as
consent decrees. Plaintiffs contend that their claim about the
consent decree requirement is not moot. Rather, they seek to be
declared prevailing parties on that claim because their lawsuit
spurred the EPA to modify the consent decree. Finally,
plaintiffs maintain that the district judge should have recused
himself.3
A. Scope of Review
We begin by determining the scope of our jurisdiction.
Although neither party challenges our jurisdiction, we must
satisfy ourselves as to our jurisdiction over a case. E.g.,
Wernsing v. Thompson, 423 F.3d 732, 743 (7th Cir. 2005). Section
113(h)(4) of CERCLA states in relevant part: “No Federal court
shall have jurisdiction … 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 … (4) An action under section 9659 of this
title (relating to citizens suits) alleging that the removal or
2
(...continued)
fact exist. The argument was waived both because it appeared for the first
time in the reply brief and because it was too cursory for us to consider. See
Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir. 2012).
3
Counsel for plaintiffs informed us at oral argument that plaintiff Sarah E.
Frey had recently passed away. The appeal continues on behalf of the other
plaintiffs.
10 No. 13-2142
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.” 42 U.S.C. § 9613(h)(4) (emphasis added).
Our cases interpreting § 113(h)(4) are in tension as to
whether its prohibition is jurisdictional or not. Frey I concluded
that § 113(h)(4) is substantive rather than jurisdictional, 270
F.3d at 1132–33, but did not discuss our circuit’s prior holding
in North Shore Gas Co. v. Environmental Protection Agency that
§ 113(h)(4) effects “the blunt withdrawal of federal
jurisdiction.” 930 F.2d 1239, 1244 (7th Cir. 1991). Later cases in
this circuit have followed North Shore Gas and interpreted §
113(h)(4) as jurisdictional. See Pollack v. U.S. Department of
Defense, 507 F.3d 522, 524–25 (7th Cir. 2007) (adopting the North
Shore Gas interpretation of § 113(h)(4) without discussing Frey
I); Village of DePue v. Exxon Mobil Corp., 537 F.3d 775, 784 (7th
Cir. 2008) (same); Adkins v. VIM Recycling, Inc., 644 F.3d 483,
493–94 (7th Cir. 2011) (§ 113(h) “expressly limits federal courts’
subject matter jurisdiction”).
Also, since Frey I was decided, a series of Supreme Court
decisions that have generally narrowed the issues that federal
courts treat as affecting subject matter jurisdiction have
directed courts to take a statute at its word when it speaks in
terms of jurisdiction, as § 113(h)(4) does. E.g., Arbaugh v. Y & H
Corp., 546 U.S. 500, 515–16 (2006); see also Reed Elsevier Inc. v.
Muchnick, 559 U.S. 154, 160–163 (2010); Henderson v. Shinseki,
562 U.S. ___, 131 S. Ct. 1197, 1204–05 (2011). These cases
strongly suggest that § 113(h)(4) should be deemed
No. 13-2142 11
jurisdictional rather than substantive. See Pakootas v. Teck
Cominco Metals, Ltd., 646 F.3d 1214, 1219–20 (9th Cir. 2011)
(declining to follow Frey I and holding that § 113(h)(4) is
jurisdictional based on intervening Supreme Court precedent).
Having previously held in this same case that § 113(h)(4) is
not jurisdictional, see Frey I, 270 F.3d at 1132–33, we hesitate to
reverse course now and hold that § 113(h)(4) is jurisdictional
after all. The distinction does not make a practical difference in
this case since there is no issue as to waiver, whether the trier
of fact should be a judge or jury, or whether the district court’s
decision would have preclusive effects. Whether jurisdictional
or substantive, § 113(h)(4) bars judicial review of claims
regarding ongoing site clean-ups, either because we lack
jurisdiction over those claims or because they are premature.
If plaintiffs’ claims address ongoing clean-up at the sites,
§ 113(h)(4) bars review of them under either interpretation. For
now we therefore follow Frey I in treating § 113(h)(4) as
substantive rather than jurisdictional and proceed to determine
which of plaintiffs’ claims are barred by § 113(h)(4).
Section 113(h)(4) prevents court consideration of citizen
suits under CERCLA until a remedial action is complete.
Schalk v. Reilly, 900 F.2d 1091, 1095 (7th Cir. 1990) (“The
obvious meaning of this statute is that when a remedy has been
selected, no challenge to the cleanup may occur prior to the
completion of the remedy.”); see also North Shore Gas, 930 F.2d
at 1244. Environmental remediation is a complex endeavor that
often proceeds in stages. Frey II, 403 F.3d at 834. Accordingly,
§ 113(h)(4) prevents us from reviewing a finished stage of a
broader remediation plan if the execution of the plan itself is
12 No. 13-2142
not yet complete. Frey I, 270 F.3d at 1134. On the other hand,
extended monitoring and indefinite plans for future action do
not suffice to trigger the bar of § 113(h)(4). Id. at 1133-34; Frey
II, 403 F.3d at 834-35. For § 113(h)(4) to protect the EPA from
citizen suits, the EPA must adopt an “objective referent” or
“objective indicator” that future work is planned. Frey II, 403
F.3d at 834-35. A Record of Decision would certainly qualify as
an objective referent or indicator, but less could also suffice. Id.
at 834.
In Frey II, we concluded that the EPA had not provided an
objective indicator that further work was planned at the sites.
Id. at 830. Plaintiffs were therefore entitled to judicial review of
their claims about Stage 1, which was at that time the only
concrete action planned at the site. Id.4 Since that remand,
however, the EPA has filed Records of Decision for Stages 2
and 3, and work on those stages is ongoing. We must therefore
confront a new question: how does § 113(h)(4) apply if, after a
judicial determination that no future action was planned (so
that § 113(h)(4) did not bar consideration of the citizen suit),
the EPA then makes new, concrete plans to conduct further
remediation at a site?
4
The EPA does not seem to have argued in Frey II that the Stage 1 Records
of Decision explicitly committed the EPA to conduct water and sediment
remediation at the site and therefore were “objective indicators” of future
action sufficient to trigger the bar of § 113(h)(4). Since Frey II, the EPA has
filed Records of Decision for Stages 2 and 3, so we need not resolve whether
the statements in the Stage 1 Records of Decision would have sufficed to
trigger § 113(h)(4).
No. 13-2142 13
There are several possible answers to this question, which
the text of § 113(h)(4) itself does not answer. First, we might
say that the moment the EPA finalizes its new plans,
§ 113(h)(4) bars review of any prior remediation at the site.
That interpretation, however, would have the unsettling effect
of allowing a citizen suit to proceed while the EPA is
considering further action but then requiring its dismissal the
moment the EPA decides to act. We should avoid this winking
in and out of claims if possible. This reading would also risk
constraining the scope of judicial review under § 113(h)(4) to
the point of rendering it almost a nullity: the EPA would be
able to delay citizen suits indefinitely by proposing minor
“further actions” whenever a citizen files suit, regardless of
whether the further action affects the work already completed
at the site. As we have said before, we should avoid converting
§ 113(h)(4) into “a silent prohibition on judicial review.” Frey I,
270 F.3d at 1134; see also Frey II, 403 F.3d at 836; North Shore
Gas, 930 F.2d at 1245.
We might instead say that the prior action remains subject
to judicial review regardless of the EPA’s new clean-up plans,
but that would also create problems. If the EPA’s new action is
not fully distinct from the old one but rather builds upon and
supplements it, we would then lack a meaningful way to
review the completed action without also reviewing the new
action, which § 113(h)(4) would bar until the new action were
complete. That would make it difficult to escape the conclusion
that despite the EPA’s delay, there would be no complete
action for us to review and § 113(h)(4)’s bar would apply.
Under those circumstances, the prior action would seem more
like a completed stage in a broader remediation plan than a
14 No. 13-2142
stand-alone plan ready for judicial review. See Frey I, 270 F.3d
at 1134 (we cannot review a stage in a clean-up until the whole
clean-up is complete). So, we cannot categorically conclude
that the new plan does not affect judicial review of the old one
because that approach would present problems if the two
plans overlapped.
We think the best approach is to chart a middle path. 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. For
example, when the new plan targets a different area, pollutant,
or polluted medium than the old plan, a court should still be
able to review most claims regarding the old plan because the
two plans are largely distinct from one another. If the plans
overlap, however, § 113(h)(4) prevents us from resolving
claims about the old plan that are directly affected by the new
plan, that is, claims about aspects of the old plan that fall
within the plans’ overlap. Otherwise, we would in effect be
reviewing the new plan before it was complete, which we
cannot do. 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.
For example, if the old remedial plan addressed soil and
water contamination at a site and the new plan addressed only
soil contamination at the same site, a court would be able to
review claims pertaining to the old plan’s water remedies but
would not be able to review claims about the old plan’s soil
remedies. If the old plan addressed soil contamination and the
new plan addressed water contamination, then we should be
able to examine claims about the old plan’s soil remedies
No. 13-2142 15
without worrying about the new plan at all. Finally, if the old
plan addressed soil contamination and the new plan addressed
soil and water contamination, then we could not review any
claims about the old plan’s soil remedies because the new plan
also addressed soil contamination.
We recognize that these lines may turn out to be difficult to
draw in practice. But there is no entirely satisfactory solution
to the problem of later remedial actions supplementing prior
work at a site, especially one that preserves an appropriate and
effective role for judicial review through citizen suits. We think
this approach creates the most workable solution. It is
consistent with the language of § 113(h)(4) and our past
decisions interpreting that language. It also strikes a reasonable
balance between citizens’ right to meaningful judicial review
of their claims and the EPA’s interest in being able to clean up
sites without being delayed by citizen suits.
Turning to the facts before us, the district court correctly
concluded that it could not review the ongoing work of Stages
2 and 3 but could review at least some claims about Stage 1.
The remedial work of Stages 2 and 3 is ongoing, so § 113(h)(4)
bars review at this time. The delay in reviewing plaintiffs’
claims about Stages 2 and 3 is a necessary consequence of the
§ 113(h)(4) bar on judicial review of a remedial action until that
action is complete. The district court correctly declined to
consider plaintiffs’ claims regarding Stages 2 and 3, and we do
not discuss those claims further.
B. Stage 1
The remedial work of Stage 1, on the other hand, is
complete, so we can review plaintiffs’ claims about Stage 1 that
16 No. 13-2142
are not directly affected by Stages 2 and 3. Plaintiffs raise three
such claims about Stage 1 on appeal. First, they argue that the
EPA failed to prepare the functional equivalent of a remedial
investigation and feasibility study (“RI/FS”) before selecting
the Stage 1 remedies as required by CERCLA because the EPA
did not consider whether Stage 1 would stop all PCB releases
into the environment. Second, plaintiffs argue that selecting
Stage 1 violated CERCLA’s mandate to protect human health
and the environment because Stage 1 did not stop all releases
of PCBs into the environment. Finally, plaintiffs argue that the
EPA violated CERCLA’s mandate that all agreements with
parties be entered as consent decrees in the district court
because the EPA did not modify the consent decree before
implementing Stage 1.
Our review of the EPA’s actions is limited. What is now
§ 310 of CERCLA permits citizen suits against the EPA only if
they allege a failure to perform an act or duty under CERCLA
“which is not discretionary.” 42 U.S.C. § 9659(a)(2). The
Supreme Court has interpreted identical language in the
Endangered Species Act citizen suit provision to allow review
only of whether the EPA followed required decision-making
procedures. See Bennett v. Spear, 520 U.S. 154, 172 (1997); see
also Scott v. City of Hammond, 741 F.2d 992, 995 (7th Cir. 1984)
(interpreting identical language in the Clean Water Act the
same way). The substance of the EPA’s decisions, on the other
hand, is at least partly discretionary, and therefore beyond the
scope of these citizen suit provisions. Scott, 741 F.2d at 995(applying citizen suit provision of Clean Water Act). The scope
of judicial review under these provisions is therefore much
narrower than the scope of judicial review under the
No. 13-2142 17
Administrative Procedure Act, which allows judicial review of
the substance of an agency’s action under a deferential abuse-
of-discretion standard. See Scott, 741 F.2d at 995; Little Company
of Mary Hospital v. Sebelius, 587 F.3d 849, 853 (7th Cir. 2009)
(discussing the deferential standard of review under the
Administrative Procedure Act).
Plaintiffs have not argued that § 310(a)(2) should be
interpreted differently from the citizen suit provisions in the
Endangered Species Act and Clean Water Act, and we see no
reason to do so. We thus read CERCLA’s citizen suit provision
to allow review of claims regarding whether the EPA complied
with required procedures under CERCLA, but not claims
regarding the substance of the EPA’s decisions, which is a
matter of discretion for the agency.
Given these constraints on our review, we must make sure
that plaintiffs’ claims are within the scope of § 310(a)(2) before
analyzing them further. We agree with plaintiffs that the EPA
had a non-discretionary duty to prepare the functional
equivalent of an RI/FS for Stage 1. See 42 U.S.C. § 9616(requiring commencement of RI/FS for pre-1986 National
Priorities List sites); 40 C.F.R. § 300.430 (detailed requirements
of an RI/FS); see also Frey v. Environmental Protection Agency,
2006 WL 2849715, at *3–*5 (S.D. Ind. Sept. 29, 2006) (the RI/FS
is the functional equivalent of the Environmental Impact
Statement required by NEPA, so the RI/FS must be
mandatory). We therefore can review whether the EPA
18 No. 13-2142
completed the necessary components of an RI/FS.5 We also
agree with plaintiffs that the EPA had a non-discretionary duty
to select remedial actions that are protective of human health
and the environment, 42 U.S.C. § 9621(b)(1), but again, we can
review only whether the EPA determined that, in its
estimation, Stage 1 was protective of human health and the
environment. Finally, the EPA has a non-discretionary duty to
enter party agreements as consent decrees in the district court,
42 U.S.C. § 9622(d)(1)(A), so we are free to review whether it
did so.
We proceed to this limited review of the merits. We agree
with the district court that the undisputed facts show that the
EPA completed the functional equivalent of an RI/FS prior to
selecting Stage 1. Contrary to plaintiffs’ assertions, the EPA did
consider whether Stage 1, standing alone, would stop all PCB
releases from the sites into the environment. It concluded that
Stage 1 would significantly improve soil quality at the sites but
that further remediation of the contaminated groundwater and
sediment would be needed. In other words, the EPA
considered Stage 1 to be a good first step toward preventing all
PCB releases into the environment from the sites and explained
5
The EPA argues that it did not have to prepare the functional equivalent
of an RI/FS for Stage 1 because the 1985 consent decree was adopted before
the RI/FS requirement was added to the statute. However, Stage 1 was
selected and the amendment to the consent decree was approved long after
the RI/FS requirement was added in 1986. CERCLA subjects clean-up sites
to the RI/FS requirement even if they were added to the National Priorities
List before the requirement was enacted, see 42 U.S.C. § 9616(d), so the
Bloomington sites were not somehow grandfathered out of the RI/FS
requirement.
No. 13-2142 19
that future steps would be needed to solve the problem fully.
The RI/FS regulations did not require more. See 40 C.F.R. §
300.430; Frey II, 403 F.3d at 834 (recognizing that site clean-up
often proceeds in stages).
The EPA also determined that Stage 1 was protective of
human health and the environment. Again, our review of that
determination is deferential. It is clear that the EPA made the
required determination. Here, the EPA concluded that Stage 1
was protective of human health and the environment because
it would reduce PCB contamination at the sites. That
determination is sufficient to comply with CERCLA’s mandate,
and plaintiffs’ challenge accordingly fails. To the extent that
plaintiffs argue that the EPA did not protect human health and
the environment because it did not select the most protective
remedy, we note that the EPA is not required to do so. In fact,
the EPA is explicitly directed to consider other factors,
including cost, when selecting a remedy. 42 U.S.C. § 9621(b)(1).
Finally, plaintiffs’ claim that the EPA violated CERCLA’s
consent decree requirement is moot. Plaintiffs’ complaint asked
the court to make the EPA amend the 1985 consent decree. The
EPA has now filed and the district court has approved an
amendment to the consent decree that incorporates all of the
Records of Decision for each site. The court could no longer
provide meaningful relief, so plaintiffs’ claim is moot. See
Cornucopia Institute v. U.S. Department of Agriculture, 560 F.3d
673, 676 (7th Cir. 2009).
Plaintiffs argue that rather than declaring their claim moot,
we should find them to be prevailing parties and award
attorney fees because the EPA amended the consent decree in
20 No. 13-2142
response to their lawsuit. However, the Supreme Court has
rejected this “catalyst theory” for most federal statutes that
award attorney fees to prevailing parties. Buckhannon Board and
Care Home, Inc. v. West Virginia Department of Health and Human
Resources, 532 U.S. 598, 605 (2001); Walker v. Calumet City, 565
F.3d 1031, 1033–34 (7th Cir. 2009). Buckhannon held that a
plaintiff does not become a prevailing party when her lawsuit
brings about a voluntary change in the defendant’s conduct
without a court order that materially alters the legal
relationship between the parties. Id.This circuit has adopted “a strong presumption that
Buckhannon applies to each fee-shifting statute that awards fees
to ‘prevailing parties.’” T.D. v. LaGrange School District No. 102,
349 F.3d 469, 475 (7th Cir. 2003). For Buckhannon not to apply,
the text, structure or legislative history of a particular statute
must clearly indicate a different definition of “prevailing
party.” Id. Nothing in the text, structure, or legislative history
of CERCLA clearly indicates that we should interpret its fee-
shifting provision differently from that in Buckhannon, so we
see no reason why it should not apply here. See City of
Waukesha v. PDQ Food Stores, Inc., 500 F. Supp. 2d 1119, 1122
(E.D. Wisc. 2007) (applying Buckhannon to CERCLA’s fee-
shifting provision); Lucia A. Silecchia, The Catalyst Calamity:
Post-Buckhannon Fee-Shifting in Environmental Litigation and
a Proposal for Congressional Action, 29 Colum. J. Envtl. L. 1(2004) (assuming Buckhannon applies to fee-shifting under
CERCLA and calling for legislation).
Applying the Buckhannon definition of “prevailing party,”
plaintiffs’ claim for attorney fees fails. Plaintiffs’ lawsuit did
No. 13-2142 21
not result in a court-ordered change in the legal relationship
between the plaintiffs and the EPA. Even if we accept plaintiffs’
contention that the EPA amended the 1985 consent decree in
response to their lawsuit, plaintiffs were not parties to the
enforcement action, so the decree did not change their legal
relationship with the EPA. Plaintiffs’ claim regarding the
consent decree is therefore moot, and they are not prevailing
parties on that claim.
C. Recusal
Finally, plaintiffs argue that the district judge should have
recused himself from this citizen suit because he had ruled on
similar issues in the enforcement action and was therefore
biased against them. The argument has no merit. For starters,
the enforcement action addressed similar issues because
plaintiffs inserted those issues into the enforcement action
through both the public comment process and their statement
to the court. Plaintiffs’ attempts to cast their participation in the
public comment period and enforcement action and the judge’s
consideration of their views in resolving the enforcement
action as a due process violation are not at all persuasive.
Second, and more fundamental, information a judge has
gleaned from prior judicial proceedings is not considered
extrajudicial and simply does not require recusal. See United
States v. Barnes, 909 F.2d 1059, 1072 (7th Cir. 1990) (alleged bias
caused by past cases involving the judge and moving party
were not grounds for recusal); United States v. Sammons, 918
F.2d 592, 599 (6th Cir. 1990) (extrajudicial bias cannot come
from the judge’s prior involvement in related cases).
22 No. 13-2142
Judges frequently preside over related cases, including
successive appeals and remands between the same parties. This
common practice does not violate the Due Process Clauses of
the Fifth or Fourteenth Amendments. See, e.g., Withrow v.
Larkin, 421 U.S. 35, 48–49 (1975), quoting FTC v. Cement
Institute, 333 U.S. 683, 702–03 (1948). Finally, plaintiffs point to
no evidence that the district judge displayed “deep-seated bias
or antagonism that would make fair judgment impossible,” as
required to justify recusal for bias under 28 U.S.C. § 455.
Liteky v. United States, 510 U.S. 540, 555 (1994). Simply put,
there is no reason the district judge should have recused
himself from this case. His decision not to do so did not deny
plaintiffs due process of law.
The judgment of the district court dismissing this action is
AFFIRMED in all respects.