ELR Citation: ELR 21511
No(s). 91 C 4254 (N.D. Ill. Apr 16, 1992)

The court dismisses an insurance company's claim under §106(b)(2) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) against the U.S. Environmental Protection Agency (EPA) for reimbursement of response costs, substitutes the United States as sole defendant for state-law claims brought against several EPA officials, and dismisses claims against the officials for the alleged unconstitutional administration of CERCLA. EPA designated the company as a potentially responsible party (PRP) under CERCLA after the company reimbursed one of its insureds for the cost of disposing of fluids containing polychlorinated biphenyls (PCBs), and the site where the fluids were taken for recycling was abandoned as a result of PCB contamination. The court first holds that CERCLA §113(h) does not deprive it of subject matter jurisdiction, because §113(h) does not prohibit postenforcement challenges to remedial or removal actions. Although the company filed its suit prior to completing the cleanup of the abandoned site, the cleanup has been completed. Further, a contrary holding would be overly formalistic, because the company would refile immediately if the court were to dismiss the company's claims as premature. The court dismisses the company's reimbursement claim, because the company has failed to exhaust its administrative remedies. In response to the company's petition for reimbursement, EPA's Office of Waste Programs Enforcement sent the company a letter clearly indicating that the company's petition was not being refused, but rather that further action on the part of the company was necessary for EPA to evaluate the petition. The company's actions following receipt of the letter confirm that it understood that fact.

The court next holds that it has personal jurisdiction over the EPA Administrator. By reason of his ultimate authority over the actions taken by EPA Region V, he should have reasonably foreseen being subjected to the jurisdiction of an Illinois court. The court substitutes the United States for the defendant EPA officials with respect to the company's state-law claims, because the company failed to allege any facts indicating that the officials were acting solely for their own interest. Finally, the court dismisses the company's claims that EPA officials violated the company's procedural due process rights by designating it as a PRP without adequate pre- or post-deprivation process and violating pertinent CERCLA regulations and guidelines, and that they violated the company's substantive due process and equal protection rights by arbitrarily designating the company as a PRP. The court holds that the company failed to allege sufficient facts to establish personal responsibility on the part of the individual defendants.

Counsel for Plaintiff
Daniel C. Murray, Daniel A. Dupre
Johnson & Bell, Ltd.
222 N. LaSalle St., Ste. 2200, Chicago IL 60601
(312) 372-0770

Linda A. Stark, Robert M. Wattson
Zelle & Larson
33 S. 6th St., Ste. 4400, Minneapolis MN 55402
(612) 339-2020

Counsel for Defendants
Jonathan C. Haile, Ass't U.S. Attorney
U.S. Attorney's Office
217 S. Dearborn St., Ste. 1200, Chicago IL 60604
(312) 353-5437

Elizabeth A. Strange, Nancy Gaines
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000