ELR Citation: ELR 20231
No(s). C04-0092 THE (N.D. Cal. Nov 10, 2005)

A court grants the government's motion to dismiss a property owner's Resource Conservation and Recovery Act (RCRA) and state-law tort claims against the U.S. Army Corps of Engineers (Corps) for failing to properly and timely implement its remedy and to satisfactorily abate the contamination at a former U.S. Air Force base landfill. The cleanup at issue falls under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §104, not under §120, which pertains to remedial actions rather than removal actions on federal facilities. Thus, the jurisdictional bar of CERCLA §113(h) applies. And here, CERCLA §113(h) deprives the court of subject matter jurisdiction over the property owner's RCRA claim because it constitutes a "challenge" to an ongoing cleanup. The property owner effectively seeks injunctive relief to "improve" the ongoing cleanup. As such, its RCRA claim is plainly related to the goals of the cleanup—and would likely require some interference with ongoing cleanup plans. The court also lacks jurisdiction over the owner's state-law tort claims because they fall within the discretionary function exception to the Federal Tort Claims Act. The challenged conduct was discretionary because the regulations at issue fail to prescribe a specific course of action that the Corps failed to follow. Moreover, the actions taken are susceptible to policy considerations—the type of decisions that Congress intended to protect from judicial second-guessing.