ELR Citation: ELR 20669
No(s). s. 89-1141, -1276 (7th Cir. Apr 24, 1990)

The court holds that §113(h) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) bars judicial review of local residents' challenges to a cleanup plan to be undertaken at a hazardous waste site in Indiana. The cleanup plan included surface excavation, capping abandoned dump sites, and burning hazardous wastes in a trash-fired incinerator. The court holds that plaintiffs cannot challenge the cleanup plan before its completion because, consistent with the plain meaning of CERCLA §113(h)(4), no remedial action may be challenged until after its completion. The plaintiffs asserted that they are not challenging the consent decree's choice of an incinerator, but are merely asking that certain procedural requirements be met. However, challenges to the procedure employed in selecting a remedy impact the implementation of the remedy and result in the same delays Congress sought to avoid by enacting CERCLA. The court observes that plaintiffs have repeatedly challenged and ridiculed the incinerator remedy as dangerous, untested, and unworkable, and that a fair reading of the plaintiffs' complaint reveals a challenge to the Environmental Protection Agency's selection of a remedy, not its implementation. The court also holds that review under the Administrative Procedure Act is not available because CERCLA specifically precludes judicial review until remedial action has been taken. Finally, the court rejects plaintiffs' constitutional due process challenges as novel theories resting on an undesirable expansion of the Fifth Amendment.

[The district court decisions are published at 19 ELR 20381 and 20383.]

Counsel for Plaintiffs-Appellants
David Schalk, pro se
311 Campus View House, P.O. Box 3216, Bloomington IN 47402-3216

Ronald T. Smith, pro se
1204 S. Park St., Bloomington IN 47401

Counsel for Defendant-Appellee
Lawrence E. Blatnik
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2338

Before WOOD, RIPPLE, and MANION, Circuit Judges.