Staged CERCLA Remediation vs. Biogeochemical Cycling: How the Seventh Circuit Compartmentalized the Environment in Frey v. EPA, and Why Polychlorinated Biphenyls Don’t Care

Abstract

For decades, toxic chemicals have leaked from disposed electronic equipment into the environment at several sites around Bloomington, Indiana. The contamination has resulted in a series of lawsuits concerning when citizens may bring legal claims in order to have input in the cleanup process. The Seventh Circuit, in Frey v. U.S. Environmental Protection Agency, held that section 113(h)(4) of the Comprehensive Environmental Response, Compensation, and Liability Act, or CERCLA, bars review of the EPA’s planned or pending stages of an environmental cleanup. The court held, however, that CERCLA allows review of completed stages of a cleanup as long as they are not directly related to the EPA’s new remediation plans. This Comment argues that although the decision is a sensible legal compromise, it ignores the established scientific concept of biogeochemical cycling: matter is not static, it moves throughout the many compartments of Earth’s surface. The Seventh Circuit’s decision ignores this scientific truth and instead creates illusory distinctions between environmental compartments in order to satisfy a legal rule. Although the decision ignores the process of biogeochemical cycling, it nonetheless creates a predictable precedent. Additionally, this Comment argues that the Seventh Circuit’s decision will not have a practical impact on the remediation of the Bloomington, Indiana sites, or any other CERCLA cleanup sites in the court’s jurisdiction, because the EPA’s remediation plans, which account for biogeochemical cycling, will continue unaffected.