their complaint is not a “challenge” to the Win-gate cleanup, and therefore falls outside the scope of section 113(h). Alternatively, plaintiffs contend that CERCLA’s ban against judicial review of Ongoing cleanup plans does not apply to their constitutional claims. We review de novo the court’s grant of defendants’ motions to dismiss for lack of subject matter jurisdiction. Ochran v. United States, 273 F.3d 1315, 1317 (11th Cir.2001). A. IS THE COMPLAINT A “CHALLENGE” TO THE WINGATE REMEDIAL PLAN? Plaintiffs first attempt to circumvent the 113(h) bar by insisting that their complaint does not really “challenge” the remedial plan for Wingate, as set forth in the consent decree. A suit challenges a remedial action within the meaning of 113(h) if it interferes with the implementatio 989) (<HOLDING>). Conversely, where a suit does not call into
holding that a party waives remand by undertaking affirmative conduct in federal court such as participating in discovery or filing an amended complaint holding complaint barred because it challenged the remedial action plan to the extent that it sought to enjoin epa from participating in the shipment of wastes from a superfund site in texas to alabama and to prevent epa from participating in any further remedial action at the site holding that defendants allegations of prejudice on ground that plaintiffs allegedly untimely notice prevented defendant from participating in foreclosure action so as to mitigate its liability and protect its interests were purely speculative holding that to the extent plaintiffs present action is based on conduct subsequent to the original action it is not barred by the prior litigation holding that the epa is also exempt from the requirement to consider alternatives under section nepa 102e