ELR Citation: ELR 20129
No(s). 06-1249 (W.D. Wash. Jun 2, 2009)

A district court held that environmental groups' CWA lawsuit against the U.S. Forest Service for discharging pollutants at a former mining area in Washington’s Mt. Baker-Snoqualamie National Forest is a "challenge" to the Service's cleanup efforts at the site, and, therefore, is jurisdictionally barred by CERCLA §113(h). The group argued that the Forest Service's cleanup efforts fall not under CERCLA §104 but under §120, which does not trigger the CERCLA §113(h) jurisdictional bar. But the site is not listed on the national priorities list, EPA is not involved with the cleanup efforts at the site, and the Service’s actions to date are completely consistent with a "removal action" pursuant to §104. The Forest Service’s cleanup efforts, therefore, are part of a removal action under §104 and eligible for the jurisdictional bar. Moreover, the Forest Service's preliminary actions to clean up the mining area constitute removal actions under §104. And the group's suit is clearly "related to the goals of the cleanup." The goal for the cleanup is to address the harmful release of hazardous substances at the site, while the group's action seeks injunctive relief requiring the Service to obtain permits for the pollutants released at the same contamination sources. Although well-intentioned, the group's lawsuit seeks to improve on the cleanup; hence, it must be considered a challenge under CERCLA §113(h).