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U.S. ECOLOGY, INC. v. CARLSON

April 28, 1986

U.S. ECOLOGY, INC., PLAINTIFF,
v.
RICHARD J. CARLSON, INDIVIDUALLY AND AS DIRECTOR OF THE ILLINOIS ENVIRONMENTAL PROTECTION AGENCY; DELBERT HASCHEMEYER, INDIVIDUALLY AND AS DEPUTY DIRECTOR OF THE ILLINOIS ENVIRONMENTAL PROTECTION AGENCY; ROBERT KUYKENDALL, INDIVIDUALLY AND AS MANAGER OF THE DIVISION OF LAND POLLUTION CONTROL OF THE ILLINOIS ENVIRONMENTAL PROTECTION AGENCY; OTHER UNNAMED OFFICERS, AGENTS, AND EMPLOYEES OF THE ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, EACH OF THEM BOTH INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITY; UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; WILLIAM D. RUCKELSHAUS, INDIVIDUALLY AND AS ADMINISTRATOR OF THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; VALDAS V. ADAMKUS, INDIVIDUALLY AND AS ADMINISTRATOR OF REGION V OF THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; OTHER UNNAMED OFFICERS, AGENTS, AND EMPLOYEES OF THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, EACH OF THEM BOTH INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITY; ECOLOGY ENVIRONMENT, INC., A CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Baker, Chief Judge.

ORDER

Magistrate Charles H. Evans' recommendation for dismissal of all counts of the complaint against all the defendants is pending before this court.

OUTLINE OF RELEVANT ENVIRONMENTAL STATUTES AND REGULATIONS

Before proceeding to the particular facts of this case, a brief summary of the federal regulation of hazardous waste sites relevant to this litigation is necessary. In 1980, Congress enacted the Comprehensive Environmental Response Compensation Act of 1980 ("CERCLA"), currently codified at 42 U.S.C. § 9601-9657 (1982). Congress intended CERCLA to complement its previous regulation of present hazardous waste disposal practices. See Resource Conservation and Recovery Act of 1976, codified at 42 U.S.C. § 6901-6987 (1982). CERCLA provided the federal government with a means "to provide relief for the consequences of prior reckless and improper hazardous waste disposal practices." United States v. Price, 577 F. Supp. 1103, 1109 (D.N.J. 1983). Under CERCLA, the United States Environmental Protection Agency ("USEPA") (as the authorized representative of the President, see 42 U.S.C. § 9615 and Exec. Order 12,316, 3 C.F.R. p. 168 (1982)) has the authority to unilaterally respond to problems caused by hazardous waste sites and to pursue those persons whose sites cause damage, and either force clean-up or collect for the cost of a USEPA clean-up. See 42 U.S.C. § 9604 and 9607(a) (1982). CERCLA also establishes a fund (popularly known as the "Superfund") to pay for response actions taken by the USEPA. See 42 U.S.C. § 9611 and 9633 (1982).

Before responding to a hazardous waste site, however, the USEPA must know where such a site exists. With this apparently in mind, Congress enacted 42 U.S.C. § 9605(8). Section 9605(8)(A) establishes criteria for determining which hazardous waste sites in the United States require the attention of the USEPA. Section 9605(8)B establishes the procedure under which those sites which meet the criteria of subsection A may become known. Pursuant to subsection B, each state submits a list of those sites which the state deems appropriate for remedial action by the USEPA. The USEPA must then take the proposed sites, conduct an independent evaluation, and promulgate a national priorities list ("NPL") of those waste sites which present "the greatest danger to public health or welfare." Id. Subsection B required the USEPA to establish the NPL within one year after December 11, 1980, and revise the list no less than annually.

The USEPA responded to this mandate by first establishing a method to objectively evaluate the danger posed by a hazardous waste site, so that both states and the USEPA could make informed comparisons. For this purpose the USEPA established the hazard ranking system ("HRS"), now published as Appendix A to 40 C.F.R. Part 300 (1985). In using the HRS, an evaluator first gathers "considerable information about the facility [hazardous waste site], its surroundings, the hazardous substances present, and the geological character of the area." Section 2.0, 40 C.F.R. Part 300, Appendix A (1985). This information receives a numerical score based on objective factors, and then using certain formulas within the HRS, the entire site receives a numerical score. State and federal officials can then compare the scores of all sites, and rank them according to their numerical value. Under the HRS those sites with the highest scores pose the greatest danger to the environment and the public.

After the USEPA established the HRS, state officials used it to evaluate sites for possible inclusion on the NPL. Regional USEPA officials then conducted reviews of those sites submitted to insure consistent application of the HRS and then proposed to the USEPA those sites which were found most hazardous. On December 30, 1982, the USEPA published the first NPL as a proposed rule. After a public comment period, the USEPA published the NPL as a final rule on September 8, 1983. 48 Fed.Reg. 40658 (1983). The USEPA, apparently following the same procedures, published the first update of the NPL as a proposed rule on September 21, 1984. 49 Fed.Reg. 37070 (1984).

STATEMENT OF FACTS

U.S. Ecology, Inc. ("U.S. Ecology"), operates and maintains a licensed chemical waste disposal site in Sheffield, Illinois ("The Sheffield site"). U.S. Ecology operates this site under a license issued by the State of Illinois and it is allegedly operated in compliance with all applicable state statutes and regulations. Although the site has not received any chemical waste materials since January, 1983, U.S. Ecology allegedly still actively maintains the Sheffield site.

On October 2, 1984, U.S. Ecology instituted this litigation against essentially three classes of defendants: the USEPA and various USEPA officials; the Illinois Environmental Protection Agency ("IEPA"), and various IEPA officials; and, Ecology and Environment, Inc., a private corporate at one time under contract with IEPA. The primary thrust of the litigation was to prevent the naming of the Sheffield site on the USEPA's 1985 update of the NPL of those waste disposal sites which present the greatest danger to public health or welfare. However, the six count complaint sought as well, declaratory and injunctive relief regarding the procedures employed by the USEPA and the IEPA in developing the NPL, damages from the IEPA for denial of due process and damages from Ecology and Environment for its allegedly negligent evaluation of the Sheffield site for the IEPA. Although only a fear when the complaint was filed, U.S. Ecology had its fear realized when on that same day, defendant William D. Ruckelshaus, Administrator of the USEPA, signed a notice of proposed rule making which included the Sheffield site in the second update to the national priorities list.

U.S. Ecology promptly moved for a temporary restraining order to prevent the USEPA from including the Sheffield site on the proposed update to the national priorities list published in the Federal Register on October 15, 1984. See 49 Fed.Reg. 40332 (1984) (publication of the proposed additions to the NPL). The damage which U.S. Ecology claimed warranted extraordinary injunctive relief was an alleged injury to reputation which would be caused by having a site it monitors named to the NPL. By order dated October 3, 1984, the late Honorable J. Waldo Ackerman denied the plaintiff's request for a temporary restraining order. Judge Ackerman wrote a brief and somewhat cryptic order in which he noted that CERCLA*fn1 confers exclusive jurisdiction over challenges to the NPL on the Circuit Court of Appeals of the District of Columbia:

    This court does not have jurisdiction to
  restrain publication of the NPL or any portion
  thereof. The NPL is an integral part of the
  nation's contingency plan which establishes
  "procedures and standards for responding to
  releases of hazardous substances, pollutants and
  contaminants." 42 U.S.C. § 9605. The plan was
  established in accordance with Congressional
  mandate authorizing the President or his designees
  "to promulgate any regulations necessary to carry
  out the provisions of" CERCLA. 42 U.S.C. § 9615.
  "Review of any regulation promulgated under
  [CERCLA] may be had upon application . . . only in
  the Circuit Court of Appeals of the United States
  of the District of Columbia." 42 U.S.C. § 9613. See
  Cotter Corporation, N.S.L. v. United States
  Environmental Protection Agency, et al., No.
  84-M-1443, slip op. (D.C. 1984); United States v.
  Rogers [sic], 575 F. Supp. 246, 254 (D.Ill. 1983);
  Tinkham v. Reagan, No. 83-140-L, slip op. (D.N.H.
  1983) [Available on WESTLAW, DCTU database].

U.S. Ecology v. Carlson, et al., No. 84-3387, slip op. at 2 (C.D.Ill. Oct. 3, 1984). While noting the lack of subject matter jurisdiction over challenges to the publication of the NPL, Judge Ackerman failed to dismiss any of the counts of the complaint.

In the wake of the October 15, 1984, publication of the proposed update to the NPL, the defendants filed motions to dismiss U.S. Ecology's complaint for failure to state a claim upon which relief may be granted. It should be noted that the Sheffield site has yet to be added to the NPL. See 40 C.F.R. Part 300, App. B (1985), as amended, 50 Fed.Reg. 37630 and 37950 (Sept. 15 and 16, 1985). After extensive briefing, Magistrate Evans issued a recommendation that all counts against all the defendants be dismissed. Magistrate Evans interpreted the paragraph quoted from Judge Ackerman's order as a ruling on subject matter jurisdiction over Counts I, II, and III, and consequently dismissed these counts against the ...


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