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OSI, Inc. v. United States

ELR Citation: 38 ELR 20107
Nos. No. 07-10941, (11th Cir., 05/05/2008) Aff'd

The Eleventh Circuit upheld a lower court's grant of summary judgment, albeit for different reasons, in favor of the U.S. government on a property owner's citizen suit concerning the U.S. Air Force's use of property as a landfill during the 1960s, 1970s, and 1980s. The lower court granted summary judgment on the merits, but it should have granted summary judgment on the ground that it lacked jurisdiction to hear the case. Because there is an ongoing Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) remedial action taking place on the property, CERCLA bars the owner's suit. CERCLA §113(h) bars preenforcement review to all removal or remedial actions selected under §104. Although the jurisdictional bar does not apply to cleanups on federal property conducted under CERCLA §120, §120 only deals with federal property listed under the national priorities list (NPL). Because the property at issue here is not on the NPL, the cleanup is "selected under" §104, thereby triggering §113(h)'s jurisdictional bar to ongoing cleanups.

[A prior decision in this litigation can be found at 32 ELR 20501.]