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