ELR Citation: ELR 21035
No(s). 90 C 7122 (N.D. Ill. Dec 17, 1990)

The court holds that Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §113(h) bars an action challenging the excavation and construction of a boating slip on a Superfund site. The activity is part of a remediation plan under a consent decree for an adjacent Superfund site. Plaintiff claims that CERCLA §113(h) does not apply because plaintiff is not challenging the remedial activities to be conducted on the adjacent site subject to the consent decree, but only the boating slip excavation/construction on the uninvestigated site for which plaintiff is named a potentially responsible party. Plaintiff alleges that the remediation activity will hamper or destroy its effort to conduct a complete and accurate Remedial Investigation/Feasibility Study on that site. The court holds that it is precluded from reviewing the case under §113(h). From the clear legislative history and the previous federal appellate courts' interpretations of §113, the court finds that in seeking to enjoin the boating slip construction, plaintiff is challenging the remedial plan provided in the consent decree. The court further holds that although plaintiff normally has the right to challenge activities occurring on uninvestigated and unremediated Superfund sites, that right gives way to the §113(h) mandate.

Counsel for Plaintiff
John Joseph Verscaj, Nancy J. Rich, Russell B. Selman
Bell, Boyd & Lloyd
70 W. Madison St., Ste. 3300, Chicago IL 60602
(312) 372-1121

Counsel for Defendant
Gail C. Ginsberg
U.S. Attorney's Office
219 S. Dearborn St., Rm. 1500, Chicago IL 60604
(312) 353-5300