ELR Citation: ELR 21038
No(s). s. 91-1077, -1383 (7th Cir. Apr 25, 1991)

The court holds that a potentially responsible party cannot challenge the construction of a boating slip on a Superfund site as part of the remedial action plan for an adjacent site at which plaintiff is not involved because plaintiff lacks standing and §113(h) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) bars review. The court first holds that plaintiff lacks standing. The court holds that the probable increase of plaintiff's cleanup costs due to the remediation plan constitutes a sufficient and direct "injury-in-fact." However, plaintiff lacks standing because it is not within the "zone of interests" protected by the statute. The court finds a decision on whether to apply the "zone of interests" test to plaintiff's challenge under the Resource Conservation and Recovery Act (RCRA) unnecessary since plaintiff concedes that the test applies to its RCRA and National Environmental Policy Act challenges, but it fails to pass. The court also holds that the construction of the new boating slip is an essential part of the remedial action on the adjacent Superfund site and that CERCLA §113(h) withdraws federal jurisdiction over such action. Noting that the purpose of the section is merely to delay and not to bar aggrieved parties' complaints, the court observes that suits seeking contribution and reimbursement are exceptions to CERCLA §113(h) and can be brought after the remedial action is completed.

Counsel are listed at 21 ELR 21035.

Before POSNER, FLAUM, and MANION, Circuit Judges.