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B.R. MacKay & Sons, Inc. v. United States

ELR Citation: 16 ELR 20842
Nos. No. C85-0914G, 633 F. Supp. 1290/24 ERC 1685/(D. Utah, 04/30/1986)

The court holds that potentially responsible parties cannot obtain judicial review of a completed response action taken by the Environmental Protection Agency (EPA) under §104 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) prior to a §107 cost recovery action brought by the government. After negotiations over EPA's demand for reimbursement of the response costs it incurred in removing cyanide-treated film chips failed, plaintiffs brought this action for a declaratory judgment of nonliability and to enjoin the government from taking any action to compel them to pay the response costs. The court first holds that the general federal question statute, 28 U.S.C. §1331, does not provide an independent basis for subject matter jurisdiction. The court would have jurisdiction under §1331 only if the statute giving rise to the cause of action waives the government's sovereign immunity. The court holds that the Declaratory Judgment Act does not establish an independent basis for subject matter jurisdiction or for a waiver of the government's sovereign immunity. The court holds that the federal mandamus statute, 28 U.S.C. §1361, does not confer jurisdiction because plaintiffs' action for declaratory and injunctive relief does not allege that the government failed to perform a ministerial, clearly defined, and peremptory duty. The court holds that CERCLA §113(b), which provides the district court with jurisdiction over "all controversies" arising under the Act, does not provide it with subject matter jurisdiction because it does not constitute an independent waiver of the government's sovereign immunity. Finally, the court holds that the Administrative Procedure Act (APA) does not waive the government's immunity and thus cannot be invoked as a jurisdictional basis. The APA provides a cause of action to persons adversely affected by agency action, but withdraws that cause of action to the extent the relevant statute precludes judicial review. The court rules that the relevant statute, CERCLA, precludes judicial review of final agency response actions until the government files a cost recovery action.

Counsel for Plaintiffs
Richard B. Ferrari, Louis T. Knauer
Watkiss & Campbell
Suite 1200, 310 S. Main St., Salt Lake City UT 84101
(801) 363-3300

Counsel for Defendant
John F. Cermak Jr., Gregory C. Diamond
U.S. Attorneys Office
P.O. Box 2750, Salt Lake City UT 84110
(801) 524-5682