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BATTAGLIA v. BROWNER

April 30, 1997

FRANK P. BATTAGLIA, Trustee, and BATTAGLIA DISTRIBUTING CORP., INC., Plaintiffs,
v.
CAROL M. BROWNER, Administrator, U.S. Environmental Protection Agency, Defendant.



The opinion of the court was delivered by: BUCKLO

 Frank P. Battaglia sued Carol M. Browner, the Administrator of the Environmental Protection Agency ("EPA"), pursuant to the "citizens suit" provision of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9659(a)(1), complaining that the defendant wrongfully designated his property as a "facility," and wrongfully listed it in and refused to delete it from the CERCLA Information System ("CERCLIS"). The Administrator moved for judgment on the pleadings under Fed. R. Civ. P. 12(c).

 A judgment on the pleadings is appropriate when the moving party is clearly entitled to judgment as a matter of law. In re Amica, Inc., 130 B.R. 792, 795 (N.D. Ill. 1991). This is such a case. Under CERCLA,

 
any person may commence a civil action on his own behalf--
 
(1) against any person (including the United States and any other governmental instrumentality or agency, . . . ) who is alleged to be in violation of any standard, regulation, condition, requirement, or order which has become effective . . . ; or
 
(2) against the President or any other officer of the United States (including the Administrator of the Environmental Protection Agency and the Administrator of the ATSDR) where there is alleged a failure of the President or of such other officer to perform any act or duty under this chapter . . . , which is not discretionary with the President or such other officer.

 42 U.S.C. § 9659(a). Mr. Battaglia sues under subsection (1). *fn1"

 Mr. Battaglia relies upon 40 C.F.R. § 300.5, which defines CERCLIS as the

 
EPA's comprehensive data base and data management system that inventories and tracks releases addressed or needing to be addressed by the Superfund program. CERCLIS contains the official inventory of CERCLA sites and supports EPA's site planning and tracking functions. Sites that EPA decides do not warrant moving further in the site evaluation process are given a "No Further Response Action Planned" (NFRAP) designation. This means that no additional federal steps under CERCLA will be taken at the site unless future information so warrants. Sites given a NFRAP designation are placed in a separate archival data base. Inclusion of a specific site or area in the CERCLIS data base does not represent a determination of any party's liability, nor does it represent a finding that any response action is necessary.

 Mr. Battaglia complains that the Administrator may not include a site in CERCLIS unless a "release" *fn2" occurred on the property, and must remove the site from CERCLIS after the determination that no "release" occurred. In Mr. Battaglia's case, it is undisputed that no "release" occurred. Therefore, Mr. Battaglia contends, the Administrator did not comply with CERCLA regulations. *fn3"

 This claim is not cognizable under 42 U.S.C. § 9659(a)(1). The Supreme Court interpreted almost identical language in Bennett v. Spear, U.S. , 137 L. Ed. 2d 281, 117 S. Ct. 1154 (1997). Bennett involved a "citizens suit" provision of the Endangered Species Act ("ESA"), which provided, in pertinent part, that

 
"any person may commence a civil suit on this own behalf--
 
(A) to enjoin any person, including the United States and any other governmental instrumentality or agency . . . who is alleged to be in violation of any provision of this chapter or ...

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