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USDC IN/ND case 2:14-cv-00312-PPS-PRC document 34 filed 05/02/17 page 1 of 8

UNITED STATES DISTRICT COURT


NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION

UNITED STATES OF AMERICA, et al., )


Plaintiffs, )
)
v. ) CAUSE NO. 2:14-CV-312-PPS-PRC
)
ATLANTIC RICHFIELD COMPANY, et al., )
Defendants. )

OPINION AND ORDER

This matter is before the Court on an Applicants Motion to Intervene [DE 15], filed on

November 1, 2016, and on an Applicants Request for Oral Argument on Their Motion to Intervene

[DE 33], filed on January 13, 2017. Both motions were filed by Applicants Carmen Garza, Gabriela

Garza, Mauro Jimenez, Sara Jimenez, Andrea Jurado, Ron Adams, We The People For East

Chicago, and Calumet Lives Matter. Plaintiff United States of America filed a response to the

Motion to Intervene on December 16, 2016, and Applicants filed a reply on January 13, 2017. No

response to the Motion for Oral Argument has been filed. Both motions are ripe for ruling.

PROCEDURAL BACKGROUND

Plaintiffs United States of America and State of Indiana initiated this cause of action on

September 3, 2014, by filing a Complaint. On the same date, the United States of America filed a

Notice of Lodging of Proposed Consent Decree. On October 15, 2014, the Government filed an

Unopposed Motion of the United States for Entry of Consent Decree. The Court held a conference

on October 28, 2014, and the Consent Decree was signed and judgment entered the same day.

On September 2, 2016, the Government filed a Status Report.

On November 1, 2016, Applicants filed the instant Motion to Intervene and, on January 13,

2017, Applicants filed the instant Request for Oral Argument.


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The action is brought under Sections 106 and 107(a) of the Comprehensive Environmental

Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. 9606, 9607(a), and

involves the U.S. Smelter and Lead Refinery, Inc. Superfund Site located in East Chicago, Indiana.

This site is divided into two Operable Units (OU1 and OU2). OU1 is divided into three zones. This

litigation is about the clean-up of Zones 1 and 3 in OU1.

The individual Applicants state that they live and/or own property in the Calumet

neighborhood of East Chicago. Applicants represent that We the People for East Chicago is a

community organization whose members primarily live in Zones 2 and 3 of OU1 in the Superfund

Site. Applicants represent that Calumet Lives Matter seeks to intervene on behalf of itself and its

members, who are residents of OU1.

ANALYSIS

Applicants argue that they are entitled to intervene as a matter of right under both 42 U.S.C.

9613(i) and under Federal Rule of Civil Procedure 24(a)(2). In the alternative, Applicants argue

that the Court should allow permissive intervention under Federal Rule of Civil Procedure 24(b)(2).

The Government opposes the Motion to Intervene on the basis that this Court lacks jurisdiction to

grant the relief that Applicants seek and that Applicants cannot satisfy the requirements for

intervention under CERCLA or Rule 24. The Court addresses the jurisdictional issue first.

A. Jurisdiction

The Government argues that the Court lacks jurisdiction to grant Applicants requested relief

because CERCLAs provisions bar jurisdiction to hear challenges to ongoing remediation. CERCLA

provides

No Federal court shall have jurisdiction under Federal law other than under section
1332 of Title 28 (relating to diversity of citizenship jurisdiction) or under State law

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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:
(1) An action under section 9607 of this title to recover response costs or
damages or for contribution.
(2) An action to enforce an order issued under section 9606(a) of this
title or to recover a penalty for violation of such order.
(3) An action for reimbursement under section 9606(b)(2) of this title.
(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.
(5) An action under section 9606 of this title in which the United States
has moved to compel a remedial action.

42 U.S.C. 9613(h).

Though the challenge itself is not one of the listed exceptions, the first claim for relief in the

Complaint that initiated this litigation is for cost recovery under 42 U.S.C. 9607. Thus, if

Applicants are given permission to intervene, their challenges to the remedial actionthough not

on their own meeting one of the exceptionswould, by virtue of the original Complaint, be in an

action covered by the exception found in 42 U.S.C. 9613(h)(1), so the jurisdictional challenge

to the Motion to Intervene fails.

B. Intervention

Having determined the jurisdictional issue, the Court proceeds to address whether any of the

standards for intervention have been met. Applicants assert that intervention is proper under

CERCLA and Federal Rule of Civil Procedure 24(a)(2) and (b). The parties agree that, under either

CERCLA or Rule 24(a)(2), an applicant may intervene in an action by right if (1) the application

is timely, (2) the applicant has an interest in the property or transaction that is the subject of the

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action, (3) disposition of the action as a practical matter may impede or impair the applicants ability

to protect that interest, and (4) no existing party adequately represents the applicants interest. See

Intl Paper Co. v. City of Tomah, No. 00-C-539-C, 2000 WL 34230089, at *2 (W.D. Wis. Nov. 30,

2000). Under CERCLA, the applicant bears the burden as to the first three elements and the

government bears the burden as to the fourth. See 42 U.S.C. 9613(I). Under Rule 24, the applicant

bears the burden as to all elements. Vollmer v. Publishers Clearing House, 248 F.3d 698, 705 (7th

Cir. 2001). All of the elements must be satisfied for intervention by right.

Permissive intervention is discretionary with the Court and is allowed, on timely application,

when an applicants claim or defense and the main action have a question of law or fact in common.

Sokaogon Chippewa Cmty. v. Babbitt, 214 F.3d 941, 949 (7th Cir. 2000).

Thus, under CERCLA, intervention by right under Rule 24(a)(2), and permissive

intervention under Rule 24(b), the motion to intervene must be timely. Because Applicants Motion

to Intervene is untimely, the Court denies the motion. See NAACP v. New York, 413 U.S. 345, 365

(1973) (If it is untimely, intervention must be denied. Thus, the court where the action is pending

must be satisfied as to timeliness.).

The Seventh Circuit Court of Appeals directs courts to evaluate four factors in considering

timeliness: (1) the length of time the applicants knew or should have known of their interest in the

case, (2) prejudice to the other parties caused by the delay, (3) prejudice to the applicants if the

motion is denied, and (4) unusual circumstances. Heartwood, Inc. v. U.S. Forest Serv., 316 F.3d 694,

701 (7th Cir. 2003); Sokaogon Chippewa Cmty, 214 F.3d at 949. The Court will look at each of

these factors in turn.

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The Court first looks at the length of time that Applicants knew or should have known of

their interests. The proposed clean-up plan was mailed to every resident living within two miles of

the Superfund Site before a public meeting held on July 25, 2012. The mailing included a blank form

for residents to provide written comments on the plan that they could mail to the Environmental

Protection Agency (EPA) and information about the public meeting, at which residents could

provide oral comments. After the Consent Decree was lodged with the Court and published in the

Federal Register in September 2014, there was another opportunity for public comment before the

Consent Decree was issued by the Court. Then, two years after the Consent Decree was issued and

judgment was entered, Applicants moved to intervene.

Applicants assert that they did not realize that their interest in the case was not being

protected as they wished it to be until recently. However, Applicants do not dispute that residents

received notice in July 2012. Thus, Applicants learned of (or should have learned of) their interest

in this matter (though not in this specific cause of action, which had not yet been filed) in July 2012.

Regarding notice of the instant litigation, the proposed Consent Decree was published in the Federal

Register, the EPA issued a press release that summarized key points of the Consent Decree on

September 3, 2014 (the same day that the decree was lodged), and a local newspaper ran an article

about the proposed Consent Decree a few days later. The Consent Decree stated that it covered

Zones 1 and 3 in OU1, so Applicants had notice of the Consent Decrees scope. Accordingly,

Applicants should have known about their interest in this specific cause of action no later than

September 2014. Additionally, after the Court approved the Consent Decree, another mailing was

made to residents and two information sessions were held in November 2014 to discuss the start of

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sampling and clean-up activities. Applicants should have known about their interest in this case two

years prior to their filing the Motion to Intervene.

Applicants argue that they only recently learned of the contamination levels on their

properties. However, courts determine timeliness from the time the potential intervenors learn that

their interest might be impaired. Rich v. ABC/York-Estes Corp., 64 F.3d 316, 321 (7th Cir. 1995)

(emphasis added). Applicants were aware of the potential contamination of their propertyif not

the precise levels of contaminationwhen they received the notice of the Consent Decree as

described above. This notice made Applicants aware that their interests might be impaired by this

litigation. The first timeliness factorthe length of time that Applicants knew or should have known

of their interests in this litigationweighs in favor of finding the motion untimely.

The Court now turns to prejudice to the existing parties. Motions to intervene must be timely

in order to prevent a tardy intervenor from derailing a lawsuit within sight of the terminal. United

States v. City of Chicago, 870 F.2d 1256, 1263 (7th Cir. 1989). This case was closed over two years

ago. To allow Applicants to intervene now to disturb that Consent Decreeespecially where there

are no pending motions to alter that Decreewould be highly prejudicial to the parties, who have

already negotiated, settled, and obtained judgment in this case. See City of Bloomington, Ind. v.

Westinghouse Elec. Corp., 824 F.2d 531, 535 (7th Cir. 1987) ([Applicants] intervention at this

time would render worthless all of the parties painstaking negotiations.).

Additionally, delay to the remediation endangers public health. Id. at 536. Applicants state

that they only wish to participate in the remediation process going forward and not to undo work

already performed, but, even so, it is foreseeable that allowing Applicants to intervene would cause

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delays in the processes going forward as the EPA continues its clean-up. This factor weighs in favor

of finding the motion untimely.

Prejudice to Applicants must also be considered. Applicants had reasonable notice and the

opportunity to make objections for the Court to hear and consider through the public comment

period that followed the initial lodging of the Consent Decree. See id. at 537. Indeed, the Court is

required to consider the objections before a consent decree can be issued. Id. As the Seventh Circuit

Court of Appeals has held, it is difficult to understand why [Applicants] should be allowed to

intervene in the present case for the purpose of presenting [their] views on the consent decree to the

court after [they] had already been afforded an opportunity to do so. Id. (finding that the applicants

would suffer little prejudice because they had been given this opportunity). Accordingly,

Applicants will suffer little prejudice if the motion is denied.

Finally, the Court considers unusual circumstances. The status report filed on September 2,

2016, indicates that the EPA is reexamining the remedy chosen for Zone 1. However, no party has

formally sought to alter the Consent Decree issued in this matter. The Court finds that the chance

that a change may be sought to the Consent Decree is insufficient to overcome the other factors

weighing in favor of deeming the Motion to Intervene untimely.

In short, Applicants Motion to Intervene is not timely. Applicants knew about their interest

in this now-closed litigation for years before filing the motion, the existing parties would be

prejudiced if Applicants were able to relitigate these settled matters, Applicants have already been

given the opportunity to present their objections to the Court and will suffer little prejudice if their

motion is denied, and permitting intervention could endanger public health. There is a chance that

the EPA will seek to alter the Consent Decree, but there is currently no formal request to do so in

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this litigation. Applicants Motion to Intervene is denied as untimely under all three legal bases of

intervention sought: CERCLA, Rule 24(a)(2), and Rule 24(b).

C. Request for Oral Argument

Because the Court is able to resolve the Motion to Intervene on the briefing alone,

Applicants request for oral argument on the Motion to Intervene is denied.

CONCLUSION

Based on the foregoing, the Court hereby DENIES the Applicants Motion to Intervene [DE

15] and the Applicants Request for Oral Argument on their Motion to Intervene [DE 33].

SO ORDERED this 2nd day of May, 2017.

s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT

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UNITED STATES DISTRICT COURT


NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION

UNITED STATES OF AMERICA and )


STATE OF INDIANA, )
)
Plaintiffs, )
) Case No. 2:14-CV-312-PPS-PRC
v. ) Judge Phillip P. Simon
) Magistrate Judge Paul R. Cherry
ATLANTIC RICHFIELD COMPANY and )
E. I. DU PONT DE NEMOURS AND COMPANY, )
)
Defendants. )
__________________________________________)

UNITED STATES OPPOSITION TO


APPLICANTS OBJECTION TO MAGISTRATES OPINION AND ORDER

INTRODUCTION

Judge Cherry properly denied Applicants Motion to Intervene, finding it untimely.

Cherry Op. at 38. Applicants Motion comes more than two years after this Court entered a

final judgment. The case was closed and the partiesrelying on that judgmenthave long since

started performing work. No activity has occurred in this matter since it was closed and there

wasand isnothing to intervene in.

Judge Cherry properly determined that Applicants knew or should have known of their

interest in this matter well before they filed their Motion. Applicants had the opportunity to

comment on the remedy selected for the residential areas of the USS Lead Site almost five years

ago and the opportunity to comment on the proposed consent decree before it became a final

judgment more than two and a half years ago. Id. at 56. Moreover, because intervention now

would disturb a consent decree that was painstakingly negotiated and is in the process of being

implemented, Judge Cherry properly found that the parties to the Consent Decree would be
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unduly prejudiced and that delay to the remediation endangers public health. Id. at 67.

Finally, Judge Cherry properly determined that Applicants would not be unduly prejudiced by

denial and that no unusual circumstances warranted intervention. Id. at 7.

While Applicants interest in the cleanup of their properties is undisputed, the forum for

their input is not this inactive, closed case. It is with EPA directly. EPA has solicited and will

continue to solicit input from residents on the ongoing cleanup in their neighborhood. EPA did

and will continue to operate a hotline, staff a desk at a local elementary school, and deploy

experienced community involvement coordinators to the neighborhood. EPA did and will

continue to participate in meetings with local community groups. 1

We therefore respectfully request this Court to affirm Judge Cherrys denial of

Applicants Motion on the basis of untimeliness alone. 2 Cherry Op. at 38.

1
For past actions identified in this Paragraph, see United States Opposition to Applicants Motion to Intervene
(ECF #24) (December 16, 2016) (US Oppos.) at Exh. A (Ballotti Dec.) at 43 (describing incident command at
Carrie Gosch Elementary School), id. at 56 (describing hotline); Exh. C (Pope Dec.) at 10 (describing staffing at
Carrie Gosch Elementary School); id. at 811 (describing Community Involvement Coordinators and their duties
at the Site); id. at 66, 69, 70, 74, 83, 8992 (describing community meetings in 2016).

For current and future actions identified in this Paragraph, see EPA Enhances Communication with East Chicago
Residents, EPA Press Release, May 31, 2017. Attachment 1. Judicial notice of this EPA press release is
appropriate. See Denius v. Dunlap, 330 F.3d 919, 926 (7th Cir. 2003) (judicial notice of information from National
Personnel Records Center website was appropriate); Laborers Pension Fund v. Blackmore Sewer Const., 298 F.3d
600, 607 (7th Cir. 2002) (judicial notice of information on FDIC website was appropriate).
2
Because Judge Cherry denied the Motion on the basis of untimeliness alone, he did not need to reach the three
other factors involved in evaluating an intervention motion. Reich v. ABC/York-Estes Corp., 64 F.3d 316, 321 (7th
Cir. 1995). Looking at Applicants intervention as a whole provides an independent basis for denying Applicants
Motion for the reasons set forth in the United States original Opposition to Applicants Motion to Intervene (ECF
#24) (Original Opposition). The United States hereby incorporates by reference into this Opposition our Original
Opposition.

2
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ARGUMENT

I. JUDGE CHERRY PROPERLY FOUND APPLICANTS MOTION UNTIMELY

Applicants requested relief falls into two categories: review of the adequacy of EPAs

remediation plan and remedial activities (Items 1, 3, and 4) and review of the adequacy of the

Consent Decree (Item 2). 3 Applicants Motion to Intervene at 4 (Applicants Motion).

The remediation plan for the USS Lead Site was issued four and a half years ago

(November 30, 2012), based on an administrative record that resulted from a well-established

process consistent with the Superfund regulations. US Oppos. at Exh. A (Ballotti Dec.) at 14.o

(Ballotti Dec.). EPA has not issued any proposed modifications to this remediation plan.

The Consent Decree was entered more than two and a half years ago (October 28, 2014),

following public notice and comment. The parties have not filed any proposed modifications to

the Consent Decree.

A. Judge Cherry Properly Found that Applicants Knew or Should Have Known
of their Interest Long Before They Filed Their Intervention Motion

1. Applicants Knew or Should Have Known of their Interest in the


Remediation Plan More than Four Years Before They Filed Their
Intervention Motion

Applicants assert that Judge Cherry improperly started the timeliness clock on judicial

intervention with EPAs issuance of remediation plan notices that predated the instant action by

two years. Applicants Objection at 3, 56. Applicants dismiss as irrelevant and wholly

inadequate these notices and some community meetings held by EPA. Id. at 3, 5. However,

3
Applicants second request is not phrased in terms of the adequacy of the Consent Decree. Instead, Applicants ask
this Court to [e]nsur[e] that the remediation plan covers the entire residential area affected by contamination, as
originally contemplated by the ROD. Applicants Motion at 4 (emphasis added). However, the remediation plan
and the ROD are one and the same document. That document sets forth the remedy for the entire residential area
of the Site. By contrast, the Consent Decree provides funding for the implementation of the ROD in two, but not all
three, of the residential areas of the Site. Therefore, the only possible interpretation of Applicants second request is
a challenge to adequacy of the Consent Decree.

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because much of Applicants requested relief seeks changes to or review of EPAs remediation

plan, Applicants notice of the proposed remediation plan and opportunity to comment on it in

2012 go to the heart of the timeliness of their Intervention Motion. If their challenge to the

remediation plan is untimely, surely their Motion to Intervene is also untimely.

Starting in November 2007 and continuing through the issuance of the proposed

remediation plan, EPA engaged in extensive outreach to the Calumet community. US Oppos.

at 13, n.15. In July 2012, EPA mailed the proposed remediation plan to all residents within two

miles of the USS Lead Site. Id. at 13. The mailing advised those residents of the date of a public

meeting and the dates for submitting written comments. Id. The Mayor of East Chicago, the

media, and numerous residents attended the July 25, 2012 public meeting. Ballotti Dec. at

14.k. EPAs notice and outreach prior to and upon issuing the remediation plan were

comprehensive and effective. Several residents submitted written comments on the proposed

plan. Id. at 14.l. In accordance with CERCLA, 42 U.S.C. 9617(b), EPA addressed all public

comments in issuing the remediation plan. Id. at 14.m.

2. Applicants Knew or Should Have Known of their Interest in the


Consent Decree More than Two Years Before They Filed Their
Intervention Motion

Applicants likewise assert that Judge Cherry erred in finding that Applicants had notice

of their interest in this matter when the Consent Decree was put out for public comment, some

two years before their Motion was filed. Applicants Objection at 6. Judge Cherry was right.

Congress expressly enabled meaningful public participation in the review of CERCLA

consent decrees, but also established a time limit on such participation to ensure the prompt

commencement of work. 42 U.S.C. 9622(d)(2). In this case, consistent with CERCLA, the

proposed Consent Decree was put out for a 30-day public comment period on September 9,

4
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2014. 79 Fed. Reg. 53,447 (Sept. 9, 2014). In that notice, the United States described the terms

of the settlement and invited public comment. Id. We did not seek entry until after the public

comment period closed.

As Judge Cherry noted, Cherry Op. at 56, the United States also supplemented the

statutorily-mandated public notice and comment requirements, thus further undercutting

Applicants assertions that they could not have known of their interest in the fall of 2014. EPA

and DOJ issued a press release summarizing the key points of the settlement. U.S. Oppos. at 16

(citing Ex. A-5). The settlement was also discussed in a local newspaper. Id. (citing Ex. A-6).

Shortly after the Consent Decree was entered, EPA mailed a summary of the settlement to all

residents within two miles of the Site and notified them of public meetings on the agreement. Id.

(citing Pope Dec. at 4647). EPA then held public meetings on November 18 and 19, 2014,

at two different facilities within the Calumet neighborhood to explain the settlement and preview

the work to come. Pope Dec. at 47 and Ex. C-17.

Applicants therefore knew or should have known of their interest by no later than the fall

of 2014, two years prior to the filing of their Intervention Motion.

3. Notice of Specific Contamination Levels at Individual Properties does


not Start the Timeliness Clock on Intervention

Applicants assert that Judge Cherry erred by not starting the timeliness clock on their

Motion when Applicants learned about the contamination of their individual properties, in the

fall of 2016. Applicants Oppos. at 3. The most obvious problem with this approach is that it

would create hundreds and possibly thousands of different starting times for remedy

challenges and judicial intervention in residential cleanup sites. 4 This was not Congress intent

4
Ballotti Dec. at 20, 21 (approximately 1076 properties in Zones 2 and 3 alone); id. at 23 (approximately 4,000
properties in EPAs lead-contaminated Jacobsville, Indiana site).

5
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in crafting the Superfund statute. See Pollack v. U.S. Dept of Defense, 507 F.3d 522, 525 (7th

Cir. 2007) (noting sites should be cleaned up as quickly as possible and without interruption by

citizen suits); City of Bloomington v. Westinghouse Elec. Corp., 824 F.2d 531 (7th Cir. 1987)

(affirming denial of citizen groups intervention as untimely because, inter alia, it would delay

cleanup).

Moreover, such a holding would turn the Superfund site cleanup process on its head.

EPA listed the Site on the National Priorities List (NPL) in 2009. After that, EPA followed the

process outlined in its regulations and guidances to evaluate, secure funding for, and start

remediation of the Site:

First, EPA conducted a remedial investigation and feasibility study to broadly identify the
nature and scope of the contamination and evaluate remedies. Ballotti Dec. at 14.af.
Second, EPA issued its Record of Decision, selecting the remedy. Id. at 14.ho.
Third, EPA negotiated a Consent Decree for funding and implementation of the selected
remedy for part of the Site. Id. at 18.
Fourth, EPA used the funding provided by the Consent Decree to begin Remedial Design
by collecting thousands of samples from hundreds of individual properties to determine
which properties required remediation. Id. at 25.
EPA generally follows this process at NPL sites across the country. It allows EPA to

both confirm that a site needs remediating and to secure funding from potentially responsible

parties as soon as possible. 5 As a consequence of this process, EPA collects progressively more

detailed sampling data as time progresses.

Applicants now claim that knowledge about data generated during Remedial Design

(Step Four) is the starting point to secure relief both from the terms of the Consent Decree

(Step Three) and ultimately the remedy selected (Step Two). But data generated during

5
This process also preserves limited EPA resources for those sites where viable responsible parties are unavailable
to fund or perform the work. See generally Memorandum from John Peter Suarez, EPA Assistant Administrator, to
EPA Regional Administrators, Enforcement First for Remedial Action at Superfund Sites (Sept. 20, 2002) (EPA
has a longstanding policy to pursue enforcement first throughout the Superfund cleanup process.) (available at
https://www.epa.gov/sites/production/files/documents/enffirst-mem.pdf).

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Remedial Design cannot be used to question the adequacy of the mechanism (i.e., the Consent

Decree) that provided the funding for the sampling, much less the adequacy of the remedy that

triggered the need for the detailed data collection in the first place.

Even if Applicants did not know about the precise contamination levels of their

individual properties until 2016, they knew or should have known far earlier than that that their

neighborhood had lead contamination. US Oppos. at 1314. As Judge Cherry found, this was

sufficient to put Applicants on notice that their interests were at stake. 6 Cherry Op. at 5.

B. Judge Cherry Properly Found that Allowing Intervention Now Would


Prejudice the Parties

Judge Cherry found that allowing Applicants to intervene now to disturb the Consent

Decree would be highly prejudicial to the parties, who have already negotiated, settled, and

6
The cases Applicants cite in their Reply Brief as alleged support for the timeliness of their intervention here are not
in point. City of Bangor v. Citizens Commcns Co. Civ. No. 02-183-B-S, 2007 WL 1557426, * 23 (D. Maine 2007)
affd on other grounds, City of Bangor v. Citizens Commcns Co., 532 F.3d 70 (1st Cir. 2008) (no EPA involvement
and no record of decision; state intervention was timely in an ongoing and active private party cost recovery case to
enable state to participate in a settlement that resolved the case and would result in a single consolidated
remediation of the site, instead of potentially different remediation orders being issued); United States v. Alcan
Aluminum, Inc., 25 F3d 1174, 118183 (3rd Cir. 1994) (intervention by potentially responsible parties (First
PRPs) was timely in a CERCLA enforcement case against other PRPs (Second PRPs) because the First PRPs
filed their motion during the public comment period on the proposed consent decree with the Second PRPs; the
proposed Consent Decree appeared to conflict with the First PRPs contribution rights in their own earlier consent
decree; and the government had assured the First PRPs during litigation with the Second PRPs that such a settlement
would not occur); Natl Wildlife Fedn v. Burford, 878 F.2d 422 (D.C. Cir. 1989), revd on other grounds, sub nom.
Lujan v. Natl Wildlife Fedn, 497 U.S. 871 (1990)) (not a CERCLA case; companys intervention in an
environmental organizations active suit against the Department of Interior was timely because company moved to
intervene less than three months after it was notified of a decision in the case that rendered certain of its mining
claims null and void); Reich, 64 F.3d at 32023 (not a CERCLA case; employees intervention in active litigation in
a government labor act violation case against their employer was timely because employer had lied to employees
about representing them in the litigation); United States v. City of Chicago, 870 F.2d 1256 (7th Cir. 1989) (not a
CERCLA case; white police officers intervention in a longstanding discrimination case was timely because they
moved to intervene 46 days after the lower court issued a ruling that appeared to discriminate against them); South v.
Rowe, 759 F.2d 610 (7th Cir. 1985) (not a CERCLA case; prison inmates intervention to enforce a consent decree
to which he was a third-party beneficiary was timely because it was brought during the pendency of the consent
decree and within a month of learning of a violation of the consent decree).

7
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obtained judgment in this case. Cherry Op. at 6. As Judge Cherry stated: This case was

closed over two years ago. Id. (emphasis added).

In those intervening years, EPA and the Settling Defendants have been implementing the

requirements of the Consent Decree. EPA has taken thousands of samples from yards,

US Oppos. Exh. D (Alcamo Dec.) at 19; thirty-eight properties were cleaned up last fall under

the Consent Decree, Ballotti Dec. at 80; at least 212 more properties will be cleaned up in 2017

and 2018. Id. at 121. Settling Defendants have provided the funding for these activities and

have transported and disposed of the contaminated soil generated by the cleanup. Id. at 18.

Given the work already completed under the Consent Decree and scheduled through 2018, as

well as the substantial payments Settling Defendants have already made into a special account

created by the Consent Decree to fund the work, Applicants suggestion that the parties would

not be prejudiced by intervention at this late date, Applicants Objection at 710, is without

merit.

Because Applicants recognize this obvious fact, their Objection to Judge Cherrys

opinion (as well as their earlier Reply Brief) rests on identifying actions that might potentially

happen in the future: EPA might change the remedy for the West Calumet Housing Complex

(WCHC), Applicants Oppos. at 9; the future land use of the WCHC might change, id.;

ATSDRs pending Health Assessment might change the basis of the clean-up, id. at 10; a

groundwater study might change the remedy, id.; and a modification of the Consent Decree

might happen. Id. at 3, 9, 10.

Of course, none of these actions actually have happened. Only one of them would

involve activity in this forum: a modification of the Consent Decree. If a material modification

of the Consent Decree were to occur, Applicants would have the opportunity to comment upon

8
USDC IN/ND case 2:14-cv-00312-PPS-PRC document 38 filed 06/14/17 page 9 of 20

it. 42 U.S.C. 9622(d)(2). Likewise, if EPA were fundamentally to change the remedy for the

WCHC, Applicants would have an opportunity to comment upon it. 7 Id. 9617(a).

C. Judge Cherry Properly Found that Denying Applicants Motion Would Not
Prejudice Them and that No Unusual Circumstances Warranted
Intervention

Citing binding Seventh Circuit precedent, Judge Cherry noted that it is difficult to

understand why [Applicants] should be allowed to intervene in the present case for the purpose

of presenting [their] views on the consent decree to the court after [they] had already been

afforded an opportunity to do so. Cherry Op. at 7, citing City of Bloomington, 824 F.2d at 537

(brackets in original). Similarly, it is difficult to understand why Applicants should be allowed

to present their views on a final agency decision that was issued four and a half years ago after

they likewise had an opportunity to comment at that time. Courts regularly have found no

prejudice to potential intervenors when they had an earlier opportunity to comment. See US

Oppos. at 15 (listing the cases).

Finally, Judge Cherry found that no unusual circumstances warranted intervention here.

Cherry Op. at 7. Indeed, circumstances actually weigh in favor of denying the Motion because

permitting intervention could endanger public health. Id. at 7.

II. APPLICANTS ASSERTION THAT THEIR REQUESTED RELIEF IS ONLY


FORWARD LOOKING IS NOT BASED ON THE RECORD

In their Reply Brief and Objection to Judge Cherrys opinion, Applicants now claim that

the relief they seek is about participat[ing] in the remediation process going forward.

7
EPA never has suggested that it was reconsidering or revising the remedy selected in the 2012 ROD for Zones 2
and 3 of the Calumet neighborhood. Status Report (ECF #11) at 45 (identifying reexamination of the remedy only
for the WCHC). Indeed, EPA is in the process of cleaning up Zones 2 and 3 consistent with the 2012 Record of
Decision. Ballotti Dec. at 25 (Zone 3), 80 (Zone 3), 81 (Zone 2), 120 (Zone 2), 121 (Zone 3). Applicants claim
that a March 16, 2017 Administrative Settlement Agreement and Order on Consent altered the remedy and costs
for Zone 3 is without merit. Applicants Objection at 9. That Agreement provides funding for removal, not
remedial, activities in Zone 3. Applicants Objection at Exhibit A at 10.lu; id. at Section VIII.

9
USDC IN/ND case 2:14-cv-00312-PPS-PRC document 38 filed 06/14/17 page 10 of 20

Applicants Reply Brief at 14; Applicants Objection at 10 (Applicants focus is on the future).

The only matter before this Court, however, is Applicants Motion. In that Motion, Applicants

seek relief related to the remedy selected by EPA, the Consent Decree, and EPA remedial

actions. See infra at 3; Applicants Motion at 4. While the untimeliness of Applicants Motion

renders Applicants shift in position understandable, it does not change the fact that Applicants

filed their Motion two years after this case was closed and became inactive.

However, even in their Reply Brief and Objection, Applicants are not focused exclusively

on the future. Applicants request appropriate remediation based on information only recently

discovered and disclosed by EPA. Applicants Reply Brief at 7 (emphasis added). In other

words, Applicants want this Court to revisit and revise EPAs 2012 remedy.

Similarly, Applicants continue to question the Consent Decrees coverage of less than the

entire residential neighborhood of this Site. Applicants Reply Brief at 910; Applicants

Objection at 67. The United States already has explained that this is not unusual and does not

represent a change in the remedy. 8 US Oppos. at 1516.

8
Other examples of Region 5 Superfund settlements where consent decrees call for the remediation of only a
portion of an area covered by a Record of Decision include two settlements involving the Lower Fox River and
Green Bay Site in Green Bay, Wisconsin, and two settlements involving the Ashland/Northern States Power
Lakefront Superfund Site in Ashland, Wisconsin. See United States, et al. v. P.H. Glatfelter Co., et al.,
Civil No. 2:03-C-0949 (E.D. Wisc.), ECF ##4, 22, 35, 37 (Original Consent Decree for Remedial Design and
Remedial Action at Operable Unit 1 of the Lower Fox River and Green Bay Site (ECF #4) and Order Approving It
(ECF #22, April 12, 2004); Amended Consent Decree (ECF #35) and Order Approving It (ECF #37, August 13,
2008)) (ROD and Amended ROD covered two upper-most geographic areas of site but Consent Decree and
Amended Consent Decree covered only one of them); United States, et. al v. NCR Corp., et al., Civil
No. 2:06-cv-00484-LA (E.D. Wisc.), ECF ##2, 8 (Consent Decree for Performance of Phase I of the Remedial
Action in Operable Units 25 of the Lower Fox River and Green Bay Site (ECF #2) and Order Approving It (ECF
#8, Nov. 3, 2006)) (ROD covered Operable Units 3, 4, and 5, but consent decree covered only one area of intense
contamination in Operable Unit 4, known as the Phase I Project Area); United States, et al. v. Northern States
Power Co., Civil No. 12-cv-565, ECF #11 (W.D. Wisc.) (Opinion and Order) at 2 (Oct. 19, 2012) (The consent
decree [ECF ##2-1 through 2-2] resolves only the on-land contamination and leaves for further negotiation the
cleanup of the bay waters); id., Civil No. 17-cv-16, ECF #2-1 (Consent Decree between the United States,
Wisconsin, and Northern States Power Company) (approved March 1, 2017) at I.IJ (one ROD covers four
inter-related areas of concern: three were addressed by the Phase 1 consent decree approved on October 19, 2012;
the fourth was addressed by this consent decree).

10
USDC IN/ND case 2:14-cv-00312-PPS-PRC document 38 filed 06/14/17 page 11 of 20

So, while Applicants have tried to re-formulate their requested relief as

forward-looking, they have, for the most part, merely repackaged their original claims. As

Judge Cherry properly found in rejecting Applicants purported forward-looking shift, it is

foreseeable that allowing Applicants to intervene would cause delays in the processes going

forward as the EPA continues its clean-up. Cherry Op. at 6-7.

To the extent Applicants seek to [o]ffer their voice to plan changes and new plans that

occur in the future, Applicants Reply Brief at 7, they will be able to do so by virtue of CERCLA

itself. 42 U.S.C. 9617(a) (public comment on remedy selection), 9622(d)(2) (public comment

on judicial consent decrees). Moreover, they can speak to EPA directly by means of the multiple

methods for securing input that EPA has established. See Attachment 1. This closed, inactive

case is not the appropriate forum.

III. EVEN IF THIS COURT WERE TO FIND APPLICANTS MOTION TIMELY,


THE MOTION SHOULD BE DENIED BECAUSE, AT THIS TIME, CERCLA
SECTION 113(h) BARS REVIEW OF THE RELIEF APPLICANTS SEEK

Judge Cherrys Opinion appears to hold that, as a threshold issue of subject matter

jurisdiction, the United States CERCLA Section 107 complaint, 42 U.S.C. 9607, conferred

jurisdiction over Applicants Motion pursuant to CERCLA Section 113(h)(1), 42 U.S.C.

9613(h)(1). Cherry Op. at 23. This ruling addresses an issue not raised in the United States

Opposition: we did not contest the Courts subject matter jurisdiction. Instead, we argued that

Section 113(h) presently bars the relief Applicants seek. US Oppos. at 2223 (emphasis added).

This Court need not reach the issues presented by Section 113(h) because untimeliness is

a sufficient grounds for denying Applicants Motion. If, however, the Court chooses to reach it,

it should hold that judicial review of Applicants challenges to EPAs remedial action is barred at

this time.

11
USDC IN/ND case 2:14-cv-00312-PPS-PRC document 38 filed 06/14/17 page 12 of 20

Under Section 113(h), [n]o federal court shall have jurisdiction . . . to review any

challenges to removal or remedial action except in five circumstances. Seventh Circuit case

law is in tension as to whether [Section 113(h)s] prohibition is jurisdictional or not. Frey v.

EPA, 751 F.3d 461, 466 (7th Cir. 2014) (Frey III). In its original 2001 Frey decision, the

Seventh Circuit held that Section 113(h) was not strictly speaking, a problem of subject matter

jurisdiction in the sense of the federal courts competence under Article III. It is instead a

question about the prerequisites that the plaintiffs must satisfy to obtain relief. Frey v. EPA,

270 F.3d 1129, 1132 (7th Cir. 2001) (Frey I) (internal citation omitted) (the courts power to

adjudicate the case is clear, and a dismissal should be predicated on [FRCP] 12(b)(6) not on

12(b)(1)). In its Frey III decision, the Seventh Circuit continued to treat Section 113(h) as

substantive, not jurisdictional, but noted other contradictory Seventh Circuit cases. Frey III,

751 F.3d at 466.

The Court need not attempt to resolve this tension in the Seventh Circuit case law

because regardless of whether Section 113(h) is concerned with subject matter jurisdiction or

not, the result is the same. If Section 113(h) deprives the Court of subject matter jurisdiction,

Applicants Motion must be denied. If it does not, Applicants Motion must be denied as

untimely and/or because the relief Applicants seek is barred at this time by Section 113(h). 9

Congress carefully circumscribed the timing of judicial review of challenges to EPA

remedial actions. Under a heading styled Timing of Review, Section 113(h) provides in

relevant part:

(h) 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 one of the following:

9
If judicial review were permitted at this time (which it is not), it would be limited to the administrative record, 42
U.S.C. 9613(j)(1), on an arbitrary and capricious standard of review. Id. 9613(j)(3).

12
USDC IN/ND case 2:14-cv-00312-PPS-PRC document 38 filed 06/14/17 page 13 of 20

(1) An action under section 9607 of this title to recover response costs or
damages or for contribution.
....

(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.

42 U.S.C. 9613(h) (emphasis added). 10

The Applicants ultimately seek to challenge[] . . . remedial action selected under

section 9604. The Seventh Circuit broadly interprets a challenge to remedial action under

Section 113(h): A suit challenges a remedial action within the meaning of 113(h) if it

interferes with the implementation of a CERCLA remedy. Pollack, 507 F.3d at 526 (emphasis

added) (quoting Broward Gardens Tenants Assn v. EPA, 311 F.3d 1066, 1072 (11th Cir. 2002)).

Here Applicants ask this Court to review and revise: (1) EPAs remediation plan to ensure it

adequately protects human health and the environment; and (2) EPAs ongoing remedial actions

to ensure EPA adequately protects all residents from hazardous exposure. Applicants Motion

at 4. Manifestly, judicial review at this time would interfere with EPAs ongoing and active

cleanup of the Calumet neighborhood. Neither of Section 113(h)s exceptions applies here, so

judicial review is barred at this time.

Section 113(h)(4) does not lift the bar on judicial review at this time. Instead, it provides

citizens with an opportunity for review of EPA remedial actions only after the remedial action

has been completed. 11 Congress apparently concluded that delays caused by citizen suit

10
The types of claims arising under the exceptions in Subsections 113(h)(2), (3), and (5) of CERCLA, 42 U.S.C.
9613(h)(2), (3), and (5), indisputably have not occurred in this case.
11
Frey III, 751 F.3d at 467 (Section 113(h)(4) prevents court consideration of citizen suits under CERCLA until a
remedial action is complete); Pollack, 507 F.3d at 525 (the upshot of 113(h) is that private attorneys general
must wait until a cleanup is finished before rushing to court); Schalk v. Reilly, 900 F.2d 1091, 1095

13
USDC IN/ND case 2:14-cv-00312-PPS-PRC document 38 filed 06/14/17 page 14 of 20

challenges posed a greater risk to the public welfare than the risk of EPA error in the selection of

methods of remediation. Pollack, 507 F.3d at 525, (quoting Clinton County Commrs v. EPA,

116 F.3d 1018, 1025 (3rd Cir. 1997) (en banc)).

Section 113(h)(1) is not available to Applicants because they are not potentially

responsible parties. Section 113(h)(1) provides potentially responsible parties with an

opportunity to challenge EPA remedial actions after a Section 107 suit is filed against them.

Congress allowed such challenges under this circumstance in order to afford due process to

parties who are being sued to pay for a cleanup. Without Section 113(h)(1), they would have no

opportunity to challenge the remedy. See North Shore Gas Co. v. EPA, 930 F.2d 1239, 1245

(7th Cir. 1991) (explaining that responsible party gets its right of review of final agency action

either under Section 113(h)(1) (i.e., when Section 107 enforcement or contribution suits are

filed) or under Section 113(h)(3) (i.e. when Section 106(b) claims for reimbursement are filed);

citizens get their rights by virtue of Section 113(h)(4)); United States v. NL Indust., Inc., 936 F.

Supp. 545, 55152 (S.D. Ill. 1996). The legislative history of Section 113(h) affirms

Section 113(h)(1)s applicability to potentially responsible parties. H.R. Rep. No. 99-253, pt. 3,

at 2122; 1985 WL 25941, **3038, 304445 (Oct. 30, 1985) (emphasis added) (Generally, this

subsection precludes judicial review of EPAs selection of a response action, except in four

limited cases: first, when the agency seeks to enforce its decisions against a responsible

party. . . ).

Even if Section 113(h)(1) could be interpreted to allow a citizen suit cloaked as an

intervention motion in a Section 107 action enforcement action against responsible parties, it

(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 completion of the remedy.)

14
USDC IN/ND case 2:14-cv-00312-PPS-PRC document 38 filed 06/14/17 page 15 of 20

does not permit it in this case. There is no current action under section 107 as that phrase is

used in Section 113(h)(1). There was an action under Section 107, but it ended and the case was

closed. 12

CONCLUSION

For the reasons stated herein and in our Opposition to Applicants Motion to Intervene

(ECF #24), the United States respectfully requests this Court to deny Applicants Motion.

Respectfully Submitted,

FOR THE UNITED STATES OF AMERICA

JEFFERY H. WOOD
Acting Assistant Attorney General
Environment and Natural Resources Division
United States Department of Justice

s/ Annette M. Lang
ANNETTE M. LANG
Senior Counsel
SPARSH KHANDESHI
Trial Attorney
Environmental Enforcement Section
Environment and Natural Resources Division
United States Department of Justice
P.O. Box 7611
Washington, DC 20044-7611
Phone: 202 514-4213
Fax: 202 616-6584
annette.lang@usdoj.gov

12
In addition, there never was a Section 107 cost recovery action relating to Zone 2. Because the settlement secured
relief only with respect to Zones 1 and 3, the complaint asserted claims only in those two Zones. Complaint
(ECF #1) at 19 and 21. Consistent with that, the United States covenanted not to sue Settling Defendants only for
Zones 1 and 3, Consent Decree (ECF #8) at 73, and reserved its rights with respect to Zone 2. Id. at 74.j.
Therefore, any relief Applicants seek with respect to Zone 2 is additionally barred because the complaint never
asserted a Section 107 action for cost recovery for Zone 2.

15
USDC IN/ND case 2:14-cv-00312-PPS-PRC document 38 filed 06/14/17 page 16 of 20

CLIFFORD D. JOHNSON
Acting United States Attorney
Northern District of Indiana

WAYNE T. AULT
Assistant United States Attorney
5400 Federal Plaza
Suite 1500
Hammond, IN 46320
Phone: 219 937-5500
Fax: 219 937-5547
wayne.ault@usdoj.gov

16
USDC IN/ND case 2:14-cv-00312-PPS-PRC document 38 filed 06/14/17 page 17 of 20

CERTIFICATE OF SERVICE

I, Annette M. Lang, electronically filed the foregoing UNITED STATES


OPPOSITION TO APPLICANTS OBJECTION TO MAGISTRATES OPINION AND
ORDER with the Clerk of Court using the CM/ECF system.

I certify that on this 14th day of June 2017, I also caused a true copy of the foregoing to
be served by first-class mail, postage pre-paid, on the following counsel who are not identified in
the Courts CM/ECF system:

Patricia McGee, Esq.


DuPont Legal 721/1268
974 Centre Rd.
Wilmington, DE 19805
Patricia.mcgee@dupont.com
Counsel for DuPont

David Rieser, Esq.


K&L Gates
70 W. Madison St.
Suite 3100
Chicago, IL 60602
David.rieser@klgates.com
Counsel for The Chemours Company

s/ Annette M. Lang
Annette M. Lang

17
USDC IN/ND case 2:14-cv-00312-PPS-PRC document 38 filed 06/14/17 page 18 of 20

ATTACHMENT 1

EPA Press Release, EPA Enhances


Communication with East Chicago
Residents (May 31, 2017)
EPA Enhances Communication with East Chicago Residents ~ U.S. EPA News Releases ~ ... Page 1 of2
USDC IN/ND case 2:14-cv-00312-PPS-PRC document 38 filed 06/14/17 page 19 of 20

A un~roesu~e.
Ern Nonm~nUl Vrot~cton
/pw+[y

News Releases from Headquarters


EPA Enhances Communication with East
Chicago Residents
05/31/2017

Contact Information:
U.S. EPA Media Relations (press(a~epa.~ov)

EAST CHICAGO Following U.S. Environmental Protection Agency Administrator Scott Pruitt's
visit to the USS Lead Superfund site last month, EPA is taking steps to enhance communication and
provide better service to East Chicago residents. This includes designating a community involvement
coordinator to serve as a dedicated point of contact for East Chicago residents; monthly community
meetings with EPA; and coordination with the East Chicago/Calumet Coalition Community Advisory
Group and other community organizations as cleanup continues.

"When I met with East Chicago residents, I heard their issues first-hand and vowed to help correct
these problems," said Administrator Pruitt."I am making it a priority to ensure contaminated sites
get cleaned up. We will take a more hands-on approach to ensure proper oversight and attention to
the Superfund program at the highest levels ofthe Agency."

"As Administrator Pruitt highlighted during his visit to East Chicago last month, collaboration
between the EPA,the State and local East Chicago leaders is critical to addressing past issues on this
Superfund site," Indiana Governor Eric J. Holcomb said."I thank the Administrator for taking
these important steps and for demonstrating his continued commitment to Hoosiers in northwest
Indiana."

"Administrator Pruitt recognized that the USS Lead Superfund site was important enough to serve as
the first Superfund site that he visited. His continued attention is appreciated. This should be the
standard at all sites where residents are exposed to hazardous contamination," said East Chicago
resident Maritza Lopez, who met with Administrator Pruitt when he visited the USS Lead
Superfund site.

EPA is taking the following steps to enhance communication with East Chicago residents:

Provide a dedicated, experienced community involvement coordinator as a direct point of contact for
all residents with questions and concerns;

Publicize the hotline number (219-801-2199~~~), available to residents during business hours;

https://www.epa.gov/newsreleases/epa-enhances-communication-east-Chicago-residents 6/8/2017
EPA Enhances Communication with East Chicago Residents ~ U.S. EPA News Releases ~ ... Page 2 of2
USDC IN/ND case 2:14-cv-00312-PPS-PRC document 38 filed 06/14/17 page 20 of 20

Host monthly community meetings to provide updates and answer questions from residents;

Maintain an EPA presence at the Carrie Gosch Elementary School so residents can easily stop in and
speak to EPA employees;

Track all resident inquiries in a database to ensure responses are provided in a timely manner;

Continue to meet regularly with local, state and federal partners to keep officials apprised ofEPA's
work and data collection in the community; and

Regularly update the USS Lead Superfund website and add frequently asked questions.

For more information, please visit: https://www.epa.~ov/uss-lead-superfund-site

R101

LAST UPDATED ON MAY 31, 2017

https://www.epa.gov/newsreleases/epa-enhances-communication-east-Chicago-residents 6/8/2017