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Steven B. Pollack v. Department of Defense

ELR Citation: 37 ELR 20262
Nos. No. 07-1104, (7th Cir., 10/18/2007)

The Seventh Circuit affirmed the district court dismissal of appellant’s citizen suit action on the basis that such actions are barred under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §113(h), which strips courts of jurisdiction over challenges to cleanup efforts while they are underway. Appellant’s claim is based on an ongoing cleanup of a landfill in Illinois located on property formerly occupied by the Fort Sheridan Army Base. The claim alleges that two property transfers among military branches and private parties violated CERCLA because the U.S. Environmental Protection Agency had not signed off on a U.S. Army cleanup plan before the property changed hands. The question is whether appellant’s claim can be sustained under CERCLA §120, which covers federally owned Superfund sites, and is not affected by the restrictions imposed by §113(h). But §113 is relevant because §120 “does not create a separate system for the feds” but rather imports all guidelines, rules, regulations, and criteria applicable to cleanups of other nonfederal facilities.