A federal court in Kansas has ruled that the CERCLA bar on pre-enforcement review applies to a lawsuit challenging an ongoing cleanup conducted under a program to address a former U.S. Department of Defense (DOD) site.City of Salina v. United States, No. 10-2298 (D. Kan. 3/25/11). The lawsuit involved the former Salina, Kansas, Schilling Air Force site that DOD operated from 1942 until 1965. When the base was closed, the land and buildings were transferred to the Salina Airport Authority and a school district; the city currently operates a wastewater treatment system there. In 1991, the U.S. Army Corps of Engineers (Corps) found contamination at the site and began a removal action under the Defense Environmental Restoration Program - Formerly Used Defense Sites (DEPP-FUDS).

In May 2010, the city, the school district, the airport authority, and others filed a CERCLA action against the United States, seeking to recover past and future response costs for addressing the site’s contamination. The government moved to dismiss, citing the ongoing cleanup and the CERCLA pre-enforcement review bar contained in section 113(h). Plaintiffs argued that the CERCLA pre-enforcement bar did not apply because the cleanup was being conducted under DEPP-FUDS and not CERCLA. The court disagreed with plaintiffs, ruling that DEPP-FUDS works in conjunction with CERCLA. According to the court, “[p]laintiffs’ requested relief will interfere with the Corps’ removal action,” and is therefore barred by section 9613(h) of CERCLA.