The opinion of the court was delivered by: ASPEN
MARVIN E. ASPEN, UNITED STATES DISTRICT JUDGE
The plaintiff Waste Management of Illinois, Inc. ("Waste Management") brought this action to challenge certain actions of the United States Environmental Protection Agency ("U.S. EPA") and two of its officials. Currently before the Court are cross-motions for summary judgment on certain claims and a motion to dismiss, but we need decide none of these here. As we explain below, we conclude that we lack subject matter jurisdiction over this case, and we therefore transfer it to the United States Court of Appeals for the District of Columbia Circuit.
A. The RCRA and Accompanying Regulations
The Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901-6991i (1982 & Supp. IV 1986) ("RCRA"), the federal statute regulating the storage, treatment and disposal of solid and hazardous waste, requires each operator of a hazardous waste facility to obtain a permit. 42 U.S.C. § 6925(a) (Supp. IV 1986). In order to obtain a permit, an operator must provide rather detailed information about the hazardous waste to be treated, stored or disposed of. See id. § 6925(b); see also 40 C.F.R. §§ 270.13-270.21 (1988). Because of the time and difficulty involved in processing these applications, especially when the RCRA first went into effect, Congress provided that facilities in existence on the statute's November 19, 1980 effective date could continue operations as "interim status" facilities as long as they had made a permit application. 42 U.S.C. § 6925(e) (1982). Under the regulations implementing this provision, interim status facilities were required to file only a relatively simple "Part A application." See 40 C.F.R. § 270.13 (1987). If approved, the Part A application allows the facility to operate on an interim basis, but at a later date the operator must file a more extensive "Part B application." See id. §§ 270.10(e)(4), 270.14.
The RCRA contemplates both federal and state involvement in the granting and enforcement of permits. Specifically, the statute directs the Administrator of the U.S. EPA to promulgate regulations concerning the granting of hazardous waste permits, 42 U.S.C. § 6925(c) (Supp. IV 1986), and the Administrator has issued a lengthy set of regulations on this subject. See 40 C.F.R. part 270 (1988). But the statute also encourages states to administer and enforce their own hazardous waste programs. 42 U.S.C. § 6926 (1982 & Supp. IV 1986). A state wishing to do so must submit an application to the Administrator of the U.S. EPA, and the state program will take effect within 180 days of the application, unless the Administrator determines that the state program (1) is not equivalent to or consistent with the federal program, (2) is not consistent with the programs in other states, or (3) does not provide adequate enforcement. Id. § 6926(b). If the Administrator does not make such a determination, the state is authorized to carry out its program "in lieu of" the federal program and may issue and enforce hazardous waste permits for facilities within its borders. Id.
Once a state program is authorized, any action taken by the state "shall have the same force and effect as action taken by the Administrator." Id. § 6926(d). Nonetheless, the U.S. EPA retains certain residual controls under the RCRA. For example, the Administrator may revoke a state-issued permit if the permitee fails to comply with RCRA sections 3004 and 3005, 42 U.S.C. §§ 6924-6925. See 42 U.S.C. § 6925(d) (1982). In addition, the Administrator may take enforcement action in a state with its own hazardous waste program, as long as he informs the state before taking action. Id. § 6928(a)(1), (2). Finally, if the Administrator determines that the state is not administering its program in accordance with the RCRA, he shall notify the state; if appropriate action is not taken, the Administrator is required to withdraw authorization from the state program. Id. § 6926(e).
The withdrawal of federal authorization is obviously an extreme step, one that requires the Administrator to establish a federal program to replace the repudiated state program. See id. In order to avoid such drastic measures, the U.S. EPA has promulgated regulations under which it may intervene in the granting and enforcement of state permits. As will be described in greater detail below, it is these regulations that lie at the heart of this litigation. These contested regulations allow the Regional Administrator of the U.S. EPA to comment on state permit applications and draft permits, 40 C.F.R. § 271.19(a) (1988), and if appropriate, to indicate "that issuance of the permit would be inconsistent with the approved state program," id. § 271.19(b). If he states that the permit is inconsistent with the state program, the Regional Administrator must specify how the permit is inconsistent and must identify what actions the State should take, "including the conditions which the permit would include if it were issued by the Regional Administrator." Id. § 271.19(b)(2). If the Regional Administrator states in his comment that a particular condition is necessary, he may take action under RCRA section 3008(a)(3), 42 U.S.C. § 6928(a)(3) (Supp. IV. 1986), against the holder of the permit for failing to comply with the condition, even if the condition was not included in the final permit. 40 C.F.R. § 271.19(e)(2), (3) (1988). The actions that may be taken under section 3008(a)(3) include the revocation of the permit or a fine of up to $ 25,000 per day. See 42 U.S.C. § 6928(a)(3) (Supp. IV 1986).
B. Factual and Procedural Background
Waste Management owns and operates a hazardous waste disposal facility, known as the CID facility,
located partially in Chicago and partially in Calumet City, Illinois. Waste Management uses what it calls Area 4 of the CID as a landfill for hazardous waste. According to Waste Management, Area 4 was constructed by excavating forty to fifty feet below grade through a water-bearing zone or aquifer called the Dolton Sand. Because the Dolton Sand was removed in creating Area 4, Area 4 is surrounded, but not underlain, by that zone. Area 4 itself is located in a glacial till, a zone approximately seventy-five feet thick and made of highly impermeable clay. Beneath the glacial till lies another aquifer known as the Silurian Dolomite. It appears that the U.S. EPA does not disagree with Waste Management's description of the geology of Area 4, but the two parties do disagree about the legal consequences that flow from that geology. In particular, the parties do not agree on what should be considered the "uppermost aquifer"; Waste Management contends that the Silurian Dolomite is the uppermost aquifer, while the U.S. EPA argues that the Dolton Sand is the uppermost aquifer. This disagreement is important because, as described below, a facility operator must follow certain procedures in monitoring the groundwater in the uppermost aquifer.
The CID facility was in existence when the RCRA went into effect in November 1980, so after the U.S. EPA had approved Waste Management's Part A application, Waste Management operated the CID as an interim status facility. In January 1986, while the CID facility was still on interim status, the Illinois EPA referred the CID facility to the U.S. EPA for enforcement action. Illinois requested that the U.S. EPA issue a compliance order because Waste Management had used certain unapproved materials in the construction of monitoring wells at the CID facility. Administrative Record ("Record") at 1218-19. The construction of the wells is not now at issue, but because of the Illinois referral, the U.S. EPA undertook its own investigation of the CID facility. As a result of this investigation, Basil Constantelos, the Director of the Waste Management Division of the U.S. EPA's Region V and one of the defendants in this case, filed an administrative complaint and order against Waste Management. See Record at 1238; see also Attachment 1 to Exhibit A, 1st Amended Complaint. This complaint, filed on September 22, 1986, was the beginning of what we shall refer to as the interim status proceedings. In the preamble to the complaint, Constantelos stated that Waste Management had been determined to be in violation of Section 3004 of the RCRA, 42 U.S.C. § 6924; the Illinois Environmental Protection Act, Ill.Rev.Stat. ch. 111-1/2, para. 1001 et seq.; and certain regulations adopted by the Illinois Pollution Control Board, Ill. Admin. Code tit. 35, §§ 725.190 to 725.194. See Complaint Preamble, Record at 1238. In the findings of violation themselves, however, Constantelos alleged only that Waste Management was in violation of provisions of the Illinois Administrative Code. Specifically, Constantelos stated the U.S. EPA's conclusion that both the Silurian Dolomite and the Dolton Sand were uppermost aquifers and that therefore both required groundwater monitoring "pursuant to 35 Ill. Adm. Code Part 725 Subpart F." Complaint para. 13, Record at 1245. Because Waste Management had not implemented a "Subpart F" monitoring program for the Dolton Sand, it was "in violation of 35 Ill. Adm. Code 725.190 through 725.194." Complaint para. 14, Record at 1245.
On February 23, 1987, Waste Management filed a motion to dismiss the Region V complaint, arguing that the U.S. EPA lacked the authority to consider or enforce claims brought under the law of Illinois. On April 2, 1987, Administrative Law Judge Thomas Yost granted Waste Management's motion to dismiss. In Re: CID-Chemical Waste Management of Illinois, Inc., Dkt. No. RCRA-V-W-86-R-77, Record at 1397. On August 18, 1988, however, after the present suit was filed, the Chief Judicial Officer of the U.S. EPA reversed. In Re: CID-Chemical Waste Management of Illinois, Inc., RCRA (3008) Appeal No. 87-11 (Aug. 18, 1988), Exhibit B, 1st Amended Complaint.
In the meantime, while the interim status proceedings were progressing, action was also being taken on a permanent Part B permit for the CID facility. Waste Management had submitted a Part B application to the U.S. EPA in October 1983, Record at 4, but in January 1986, the U.S. and Illinois EPAs entered into a memorandum of agreement, see Record at 123, and the Illinois hazardous waste program, Ill.Rev.Stat. ch. 111-1/2, paras. 1020-1022.18 (1987); Ill. Admin. Code tit. 35, §§ 700 et seq. (1985), received final authorization. See 51 Fed. Reg. 3778 (1986). Consequently, the Part B application for the CID was turned over to the Illinois EPA.
When the Illinois EPA issued a draft permit for the CID facility on May 22, 1987, a copy was submitted to the U.S. EPA. The latter agency did not comment at that time, apparently because it believed that the draft permit satisfied the conditions of the federally authorized state program. Some time later, however, the U.S. EPA learned that the terms of the draft permit had been revised and therefore requested the Illinois EPA to provide a copy of the revised permit. Upon reviewing the copy, the U.S. EPA determined that while the revised permit required some groundwater monitoring in the Dolton Sand, it did not require the extensive monitoring -- the so-called "Subpart F" monitoring -- that the U.S. EPA believed was necessary.
On January 25, 1988, in response to the changes in the CID permit, the U.S. EPA's Basil Constantelos sent the Illinois EPA the letter that is the subject of this lawsuit. In that letter, Constantelos indicated, pursuant to 40 C.F.R. § 271.19(b), that the revised draft permit "would be ...