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Fresno, City of v. United States

Citation: 40 ELR 20136
No. No. CV-F-06-1559, (E.D. Cal., 04/22/2010)

A district court dismissed a city's RCRA and the California Hazardous Substances Account Act against the United States in a dispute concerning the environmental remediation of Old Hammer Field in Fresno, California. The site, presently occupied by an airport, was used by the United States as an Army base during World War II. CERCLA §113(h) bars federal courts from exercising jurisdiction over “any challenges” to removal or remedial environmental response actions taken pursuant to CERCLA §104 while those response actions are ongoing. Here, the city’s evidence is insufficient to create a genuine dispute of material fact that CERCLA §120 applies to the site cleanup and not §104. All remediation efforts are taking place on city-owned property, implicating §104, not §120, and the activities in question are "remedial activities." Thus, the city's RCRA cause of action is a “challenge” to a cleanup plan that removes jurisdiction under CERCLA §113(h). In addition, the court lacks subject matter jurisdiction to hear the California Hazardous Substances Account Act claim because the United States has not waived sovereign immunity.