ELR Citation: ELR 20310
No(s). 00-2748 (7th Cir. Nov 6, 2001)

The court affirms in part and dismisses in part a district court order dismissing for lack of subject matter jurisdiction residents' claim that the remediation plan for three toxic waste sites in Bloomington, Indiana, does not comply with federal or state law. The residents sought declaratory and injunctive relief and sought a temporary restraining order to prevent remediation work at one of the sites, a landfill. A federal court may not hear a citizen suit challenging a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) removal or remedial action until that action is complete. In dismissing the suit, the district court found that removal and remediation activities at the landfill were planned but not yet complete. The court first holds, consequently, that dismissal was appropriate as to the residents' CERCLA claim regarding the landfill. The district court, however, made no factual findings as to the other two sites. The court, therefore, remands the case for further proceedings with regard to the two sites. If, on remand, the district court finds that the case may proceed under any of the various federal theories, it should also revisit the question of the appropriateness of retaining supplemental jurisdiction over the residents' public nuisance claim against the owner of the site. The court further holds, however, that the district court properly dismissed the residents' state-law claims against the U.S. Environmental Protection Agency because they failed to exhaust their administrative remedies. Similarly, the residents' state-law air pollution claim against the state of Indiana was properly dismissed because the state is diligently pursuing the cleanup of the three sites.

Prior decisions in this litigation are published at 19 ELR 20383 and 20 ELR 20669.]

Counsel for Plaintiffs
Mick G. Harrison
Law Offices of Mick G. Harrison
703 W. Gourley Pike, Ste. 100, Bloomington IN 47404
(606) 321-1586

Counsel for Defendants
Diane E. McConkey
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Wood, J. Before Easterbrook and Williams, JJ.