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ACME FILL CORP. v. REILLY

March 28, 1990

ACME FILL CORP., Plaintiff
v.
WILLIAM REILLY, Administrator, U.S. ENVIRONMENTAL PROTECTION AGENCY (EPA), a Federal Agency of the Executive Branch; THE STATE OF CALIFORNIA DEPARTMENT OF HEALTH SERVICES TOXIC SUBSTANCES CONTROL DIVISION; KENNETH KIZER, M.D., MPH, Director, STATE DEPARTMENT OF HEALTH SERVICES, Defendants



The opinion of the court was delivered by: PATEL

 MARILYN HALL PATEL, UNITED STATES DISTRICT JUDGE

 Plaintiff, Acme Fill Corp. ("Acme"), owner and operator of a landfill facility, filed a petition for judicial review of a closure plan approved by defendants, the United States Environmental Protection Agency ("EPA"), and the California Department of Health Services ("CDHS"). Plaintiff alleges that this court has federal question jurisdiction over both defendants. CDHS and Acme are now before the court on CDHS' motion to dismiss. Having considered the submissions of the parties, for the following reasons, the court grants defendant CDHS' motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).

 Plaintiff owns and operates a 125 acre landfill facility near Martinez, California. Because a portion of the waste disposed of at Acme's facility was regulated as hazardous, the facility became classified as a hazardous waste facility under both state and federal laws. Federal Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. § 6901 et seq. ("RCRA"); Cal. Health and Safety Code § 25100 et seq.; Cal.Code of Regs., Title 22, § 66001 et seq. Plaintiff was required to apply for Interim Status to operate such a facility. 40 C.F.R. § 265; Cal.Health and Safety Code § 25200.5; Cal.Code of Reg., Title 22, Art. 18.

 Plaintiff initially filed, and then withdrew, an application for an Interim Status Document to operate a hazardous waste facility. *fn1" Plaintiff was then required to submit a proposed closure plan for the facility. 40 C.F.R. § 265.110 et seq.; Cal.Admin.Code Title 22, § 67210 et seq. A closure plan provides for the final wind down and closure of a hazardous waste facility. In May 1989, the EPA and CDHS modified and approved the closure plan plaintiff had submitted for its facility. Plaintiff sought and was denied, by both the EPA and CDHS, administrative review of the approved closure plan.

 Plaintiff now seeks judicial review of the approved closure plan and the federal and state agencies' respective denials of administrative appeal, pursuant to 5 U.S.C. §§ 701-706. *fn2"

 CDHS moves for dismissal of plaintiff's complaint as to CDHS for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), and for failure to state a claim upon which relief may be granted under Federal Rule of Civil Procedure 12(b)(6). In the alternative, CDHS moves for plaintiff to amend its complaint to provide a more definite statement under Federal Rule of Civil Procedure 12(e).

 LEGAL STANDARD

 Federal courts are courts of limited jurisdiction. The party seeking to invoke the jurisdiction of a federal court has the burden of demonstrating the existence of subject matter jurisdiction. Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986).

 Where a party asserts federal question jurisdiction plaintiff's complaint must assert a claim that "arises under" federal law. 28 U.S.C. §§ 1331, 1337; United Airlines v. Div. of Indus. Safety, 633 F.2d 814, 816 (9th Cir. 1980), cert. denied, 454 U.S. 944, 70 L. Ed. 2d 255, 102 S. Ct. 485 (1981). To "arise under" federal law, an essential element of the plaintiff's claim must be a right or immunity created by the Constitution or laws of the United States. Gully v. First Nat'l Bank, 299 U.S. 109, 81 L. Ed. 70, 57 S. Ct. 96 (1936). It is not sufficient that plaintiff anticipates a defense based upon federal law. United Airlines v. Div. of Indus. Safety, 633 F.2d at 816-17. Nor is it enough that a federal statute may be implicated or subject to interpretation. See Mobil Oil Corp. v. Coastal Petroleum Co., 671 F.2d 419, 422 (11th Cir.), cert. denied 459 U.S. 970, 74 L. Ed. 2d 281, 103 S. Ct. 300 (1982). Furthermore, federal jurisdiction must generally appear in the complaint, unsupported by other pleadings. Nuclear Eng'g v. Scott, 660 F.2d 241, 249 (7th Cir. 1981) (citing Arkansas v. Kansas and Texas Coal Co., 183 U.S. 185, 188, 46 L. Ed. 144, 22 S. Ct. 47 (1901)).

 Lacking diversity of citizenship with CDHS, plaintiff here must show that there is federal question jurisdiction under 28 U.S.C. §§ 1331, 1337, and the controversy with respect to federal law "must be disclosed upon the face of the complaint." Gully v. First Nat'l Bank, 299 U.S. at 113. Plaintiff, in its complaint, invokes the jurisdiction of this court "pursuant to 28 U.S.C. § 1331 and 5 U.S.C. §§ 702, 703." Complaint para. 2. Federal question jurisdiction cannot be supported as to CDHS by this generic reference to the jurisdictional statute and to the Administrative Procedure Act. The latter, codified at 5 U.S.C. §§ 701-706, governs judicial review procedures of federal agencies, which CDHS clearly is not. *fn3"

 Plaintiff argues that the EPA and CDHS agreed to jointly administer the closure plan approval process. Plaintiff then contends that this joint administration constitutes "agency action" under the Administrative Procedure Act, and thus all related actions are reviewable in federal court. Plaintiff ...


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