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City of Salina, Kansas v. United States

ELR Citation: 41 ELR 20133
Nos. No. 10-2298, (D. Kan. , 03/25/2011)

A district court dismissed a city's CERCLA §107(a) suit against the United States to recover past and future response costs incurred at the former Schilling Air Force Base area in Salina, Kansas. CERCLA §113(h) bars challenges to ongoing response actions being taken under §104. Here, the U.S. Army Corps of Engineers is conducting an ongoing response action at the site under the Formerly Used Defense Sites program, which operates under the authority of CERCLA §104. In addition, the city's requested relief will interfere with the Corps' removal action, and the city does not argue otherwise. Accordingly, because the United States has "selected a removal or remedial action" under §104 and because the city's claims present a "challenge" to that removal or remedial action, the jurisdictional bar of §113(h) applies.