"Frey v. Environmental Protection Agency": A Small Step Toward Preventing Irreparable Harm in CERCLA Actions

When Congress amended the federal Superfund statute in 1986, it closed the door to most litigation regarding the adequacy of cleanup at hazardous waste sites at any point before a cleanup action is complete. While this timing-of-review provision successfully blocked potentially responsible parties from avoiding or delaying cleanup costs, it has also sometimes prevented citizen suits that challenge EPA response actions that would allegedly exacerbate irreparable environmental harm. The courts, with few exceptions, have read the timing-of-review provision as an absolute bar to judicial review despite the circumstances. In Frey v. Environmental Protection Agency, plaintiffs sought judicial review of a long-running cleanup that they claimed would increase releases of toxic chemicals. EPA argued that the timing-of review provision barred such review until the matter was completed. The Seventh Circuit clarified how "completeness" should be evaluated, agreeing with plaintiffs that the action was effectively—if not officially—complete. This Note argues that although the court did not expressly base its decision on the existence of an irreparable harm claim, it gave citizens a new opportunity to raise these claims in the future. However, the Note concludes that the court should have gone further to explain its reasoning and scope.