Razore

Section 113(h) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9613 (h), bans all challenges to ongoing remedial or removal actions. The principal question in this appeal is whether a remedial investigation/feasibility study constitutes a removal or remedial action.

I. FACTS

The plaintiffs operated a landfill on the Tulalip Indian Reservation from 1965 to 1979. In 1979, the Environmental Protection Agency (EPA) directed the plaintiffs to halt landfill disposal because pollution was contaminating the Snohomish River and Puget Sound. The landfill was closed pursuant to a consent decree entered into by the United States, the plaintiffs and the Tulalip Tribes. The consent decree required the plaintiffs to place a soil cover on the landfill.

The soil cover proved inadequate to stop rainwater from percolating down through the wastes and creating leachate. In 1985, the Tulalip Tribes sought to place a thicker soil cover over the landfill. The plaintiffs allege that the Tribes capped the landfill with debris such as concrete chunks, bricks and ereosoted wood. In 1988, the EPA began studying the landfill. Its study revealed that…