MEMORANDUM DECISION RE: DEFENDANT'S MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS OR FOR PARTIAL SUMMARY JUDGMENT AS TO PLAINTIFF'S RCRA CLAIM; MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS AS TO PLAINTIFF'S HSAA CLAIM (Docs. 142 & 143).

OLIVER W. WANGER, District Judge.

I. INTRODUCTION.

This is a dispute over environmental remediation between Plaintiff City of Fresno (the "City") and Defendants the Boeing Company ("Boeing"), the United States Army Corps of Engineers, and the National Guard Bureau (collectively, the "United States"). The dispute concerns the environmental remediation of Old Hammer Field ("OHF") in Northeast Fresno, a site presently occupied by the Fresno-Yosemite International Airport. This site was used by the United States as an Army Air base during World War II. In 1946, the United States transferred the property to Plaintiff, which has since owned and controlled it. Boeing's predecessor, North American Aviation, was one of Plaintiff's tenants of the property in the 1950s.

The City of Fresno has sued the United States and Boeing in a Second Amended Complaint ("SAC") under CERCLA, RCRA, HSAA, as well as various state law theories. Plaintiff alleges that it "has shouldered, and continues to shoulder, a disproportionate share of the past, present and ongoing costs associated with the investigation and clean up of the OHF property, as well as off-site areas affected by Defendants' polluting activities." (SAC ¶ 4.) Plaintiff requests a "declaration of responsibility and payment from Defendants for their fair share of all past, present and future responses costs [sic] incurred in response to Defendants' release of hazardous substances, wastes, materials and pollutants." (Id. ¶ 6.) Plaintiff also seeks monetary and injunctive relief.1

Before the court for decision are two motions brought by Defendant United States: (1) for partial judgment on the pleadings or partial summary judgment as to Plaintiff's fourth claim under the RCRA; and (2) for partial judgment on the pleadings as to Plaintiff's third claim under the HSAA.

Defendant's RCRA motion challenges subject matter jurisdiction over this claim under § 113(h) of CERCLA. Defendant also argues that the claim is moot because the activities Plaintiff seeks to enjoin are already underway, under the doctrine of primary jurisdiction, and because there is no imminent and substantial endangerment at OHF as required under Plaintiff's RCRA claim. The HSAA claim is allegedly infirm because the United States has not unequivocally waived its sovereign immunity.

These motions were originally filed on April 23, 2007 and renoticed on August 20, 2009. Although the arguments in the original motions and renewed motions are largely the same, there is one important distinction: Plaintiff now alleges that 1, 2, 3-trichloropropane ("TCP") has leached into the City's water supply, allegedly from the federal facilities located on or near OHF. The alleged presence of TCP— and its effect on the current remediation plan—drives the current dispute.

II. FACTUAL/PROCEDURAL BACKGROUND.

This case involves the cost, scope, and progress of environmental remediation activities conducted by Plaintiff City of Fresno, Boeing, and the United States at Old Hammer Field ("OHF"), a site presently occupied by the Fresno-Yosemite International Airport. This site was used as an Army Air base during the World War II years.2 Boeing's predecessor, North American Aviation ("NAA"), was one of Plaintiff's tenants of the property in the 1950s.

The State of California, through its Department of Toxic Substances Control ("DTSC") and the Regional Water Quality Control Board ("RWQCB") ("State Agencies") has oversight over the cleanup. The parties work together as the Old Hammer Field Steering Committee and have entered into multiple agreements since 1993, including a 1993 Cost-Sharing Agreement containing an interim allocation of costs and specification of remedial tasks to be performed.3 On October 4, 1994, Plaintiff, the United States, and the State Agencies entered into a Potentially Responsible Party Agreement for Old Hammer Field ("Cooperative Agreement") governing the performance of the investigation and response actions at the site. On the same date, DTSC issued an Imminent or Substantial Endangerment Order and Remedial Action Order for OHF to Rockwell International, a successor to NAA and one of Boeing's predecessors.

In May 2004, the State Agencies approved the Final Remedial Action Plan ("RAP") for OHF, which was a result of the Cooperative Agreement process. The RAP identified two primary contaminants of concern. First, a chlorinated volatile organic compound ("VOC") known as trichloroethene ("TCE"), which has been used as a degreaser and industrial solvent for many industrial activities. The TCE plume extends almost 12,000 feet long, up to 4,000 feet wide at points, and up to 300 feet deep at points. It is suspected to have originated from Area 1. Second, tetrachloroethene ("PCE"), another industrial solvent, is contained within the larger TCE plume. The RAP has five principal components: (1) the Water Supply Contingency Plan; (2) the operation and treatment of water from Well 70; (3) the treatment of the "source area"; (4) installation of wells to prevent downgradient migration of contaminants; and (5) the operation and maintenance of the system.4

None of the parties is satisfied with the interim allocation of money each has paid over the years under the Cost-Sharing Agreement. Each believes it is entitled to reimbursement from the other parties. Nonetheless, until August 2006, the cleanup had continued without interruption with funding from the parties identified in a series of amendments to the original Cost-Sharing Agreement. In early 2006, disputes about funding arose and while alternative proposals were discussed, the parties were unable to agree on the allocation of funds. With funding exhausted, in August 2006 the parties notified the State Agencies that the remediation work at OHF would stop because of funding disagreements.

In September 2006, DTSC determined Plaintiff and the United States were non-compliant with the Cooperative Agreement and that Boeing was non-compliant with the DTSC's October 1994 Order. On October 20, 2006, pursuant to the California Water Code, the RWQCB issued an order to all of the parties to comply with a groundwater monitoring and discharging program. On October 31, 2006, pursuant to the California Health and Safety Code, DTSC issued an Imminent or Substantial Endangerment Determination and Order and Remedial Action Order to all the parties to conduct various response actions in accordance with a specific timeline. The DTSC Order required all parties, unilaterally, jointly, and severally, to immediately ensure that all required activities under the OHF RAP moved forward in accordance with the enforceable schedule. In December 2006 the parties reached an agreement to fund the activities required by the State Agencies in their October 2006 orders in the form of Amendment 8 to the Cost-Sharing Agreement.

On November 2, 2006, Plaintiff filed this action seeking payment for response costs it has incurred in relation to the cleanup at OHF of contaminants released by Defendants. The City sought a declaration of responsibility for past, present and future response costs incurred at OHF, as well as damages and injunctive relief to remediate the harm caused to OHF. Plaintiff originally pled twelve causes of action: a) Claims One and Two against all Defendants for equitable contribution under CERCLA section 107(a) and section 113(f) contribution, respectively, b) Claim Three against all Defendants for contribution and indemnity pursuant to HSAA, Cal. Health and Safety Code § 25363(e) and treble damages under § 25398.17, c) Claim Four against all Defendants for injunctive relief and litigation costs pursuant to RCRA § 6972, d) state law claims against Boeing, Claims Five through Eleven, for continuing nuisance, public nuisance, negligence, negligence per se, continuing trespass, waste, and equitable indemnity and contribution, and e) Claim Twelve for declaratory relief, seeking a judicial determination of the parties' respective liabilities for the OHF cleanup.

On April 23, 2007, Defendant United States moved for partial judgment on the pleadings or partial summary judgment on Plaintiff's RCRA claim and for partial judgment on the pleadings as to the HSAA claim. The City opposed the motion and the parties appeared before the Court on December 3, 2007 for oral argument on Defendant's motions. The case was subsequently stayed pending settlement negotiations. On April 17, 2009, the stay was lifted and Plaintiff was ordered to file an amended complaint. (Doc. 122.)

Plaintiff filed a Second Amended Complaint on May 18, 2009, advancing twelve causes of action, including claims under RCRA and HSAA. (Doc. 123-3.) Defendant United States filed a "Notice of Renewal of Pending Dispositive Motions" on August 7, 2009. The unopposed motion was granted on August 12, 2009.

On August 20, 2009, the United States renoticed its motion for partial judgment on the pleadings or partial summary judgment on Plaintiff's RCRA claim:

(Doc. 142.5)

The City opposed the United States' motions on September 14, 2009.6 In connection with its opposition, the City has filed a number of exhibits and declarations, including the declaration of Lisa Decker, counsel for the City.

III. LEGAL STANDARD

Defendant moves for partial judgment on the pleadings or partial summary judgment. Judgment on the pleadings is appropriate if, assuming the truth of all material facts pled in the complaint, the moving party is nonetheless entitled to judgment as a matter of law. Hal Roach Studios v. Richard Feiner & Co., Inc., 896 F.2d 1542 (9th Cir.1989). Under Rule 12(c), if "matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56." MetroPCS, Inc. v. City and County of San Francisco, 400 F.3d 715, 720 (9th Cir.2005). Here, the United States provides two declarations with numerous supporting documents as evidence in support of its RCRA arguments. Because Defendant relies on matters outside the pleadings, its RCRA motion cannot be resolved under Rule 12(c). Accordingly, the RCRA motion is treated as a motion for summary judgment. The United States, however, does not rely on matters outside the pleadings to support its HSAA motion, therefore it is analyzed under Rule 12(c).

A. Summary Judgment

Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The movant "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted).

Where the movant will have the burden of proof on an issue at trial, it must "affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party." Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). With respect to an issue as to which the non-moving party will have the burden of proof, the movant "can prevail merely by pointing out that there is an absence of evidence to support the nonmoving party's case." Soremekun, 509 F.3d at 984.

When a motion for summary judgment is properly made and supported, the non-movant cannot defeat the motion by resting upon the allegations or denials of its own pleading, rather the "non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, `specific facts showing that there is a genuine issue for trial.'" Soremekun, 509 F.3d at 984. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). "A non-movant's bald assertions or a mere scintilla of evidence in his favor are both insufficient to withstand summary judgment." FTC v. Stefanchik, 559 F.3d 924, 929 (9th Cir. 2009). "[A] non-movant must show a genuine issue of material fact by presenting affirmative evidence from which a jury could find in his favor." Id. (emphasis in original). "[S]ummary judgment will not lie if [a] dispute about a material fact is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. In determining whether a genuine dispute exists, a district court does not make credibility determinations; rather, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255, 106 S.Ct. 2505.

B. Judgment on the Pleadings

A party may move for judgment on the pleadings after the pleadings are closed but early enough not to delay trial. Fed. R.Civ.P. 12(c). When a Rule 12(c) motion challenges the sufficiency of the pleadings, the standard for such a motion is similar to the standard for a Rule 12(b)(6) motion in that judgment on the pleadings is appropriate when, even if all the allegations in the complaint are true, the moving party is entitled to judgment as a matter of law. Milne ex rel. Coyne v. Stephen Slesinger, Inc., 430 F.3d 1036, 1042 (9th Cir.2005). In such cases, the court assumes the allegations in the complaint are true and construes those allegations in the light most favorable to the plaintiff. McGlinchy v. Shell Chemical Co., 845 F.2d 802, 810 (9th Cir.1988). Conclusory allegations, however, without more are insufficient to defeat a Rule 12(c) motion. Id.

IV. DISCUSSION

The United States seeks judgment on two of the claims contained in the SAC. First, the United States seeks summary judgment on Plaintiff's fourth claim under RCRA. Second, the United States seek judgment on the pleadings on Plaintiff's third claim under the HSAA.

A. Preliminary Issues

1. Declaration of Robert Dworkin

To support the substance of its RCRA arguments, particularly those relating to "mootness," the City contends that at an August 2009 deposition, Mr. Robert Dworkin, a FUDS Program Manager, acknowledged that the Corps had not requested funding for the OHF cleanup in its 2009-2010 budget. According to the City, "[g]iven that the point of the City's RCRA claim is to require the United States to actually fund its commitment to clean up OHF," the RCRA claim cannot be moot in light of the United States' testimony.

In response, the United States submitted the sworn declaration of Robert J. Dworkin, which clarified his August 2009 remarks:

(Doc. 167-2, Dworkin Dec., ¶'s 3-5.)

Mr. Dworkin's sworn declaration resolves many of the arguments raised in the City's motion, particularly as they relate to funding for the Corps' 2009-2010 budget.7

2. Current Status of Cleanup

The OHF is the subject of ongoing remediation efforts. In 1994, the City, the United States, and Boeing signed a cooperative agreement outlining the investigation, cleanup, and response actions at the OHF site. In 2004, the stage agencies approved the final RAP for the OHF site. In October 2006, following a dispute among the parties, the DTSC issued an "Imminent or Substantial Endangerment Determination and Order" requiring all parties to unilaterally, jointly, and severally conduct all required activities in accordance with an enforceable schedule. In December 2006 the parties reached an agreement to fund the remediation activities required by the DTSC's October 2006 order in the form of Amendment 8 to the Cost-Sharing Agreement. As best understood, the remediation efforts are continuing under Amendment 8.

The declaration of Lisa Decker provides an update:

(Decker Dec., Doc. 152, ¶ 15.)

Although the parties are not satisfied with scope and duration of funding, particularly as to the federal budgeting process, there has not been a formal breach of the cooperative agreement.8

B. RCRA (Claim IV)

The "RCRA is a comprehensive environmental statute that governs the treatment, storage, and disposal of solid and hazardous waste." Meghrig v. KFC W., Inc., 516 U.S. 479, 483, 116 S.Ct. 1251, 134 L.Ed.2d 121 (1996) (citing Chicago v. Envtl. Def. Fund, 511 U.S. 328, 331-32, 114 S.Ct. 1588, 128 L.Ed.2d 302 (1994)). Its purpose is to minimize the present and future threat to human health and the environment, not effectuate the clean-up of toxic waste sites or allocate those costs. 42 U.S.C. § 6902(b); Meghrig, 516 U.S. at 483, 116 S.Ct. 1251. The RCRA provides for citizen suits to obtain a "mandatory injunction, i.e., one that orders a responsible party to `take action' by attending to the cleanup and proper disposal of toxic waste, or a prohibitory injunction, i.e., one that `restrains' a responsible party from further violating RCRA." Id. at 484, 116 S.Ct. 1251.

Specifically, citizens can sue for injunctive relief to enforce RCRA's provisions:

42 U.S.C. § 6972(a)(1)(B).

The SAC seeks an injunction compelling Defendants to "correct the violations, including, but not limited to, investigating, remediating, responding to, and removing the contamination released from OHF, and for other actions as may be necessary to remedy the violations committed by Defendants." (SAC ¶ 133.)

The United States contends that the City's RCRA claim fails for four reasons: (1) the court lacks subject matter jurisdiction over this claim pursuant to § 113(h) of CERCLA, (2) the claim is moot because the City is asking the court to engage in an idle act as the United States is in compliance with the remedial objectives of the DTSC pursuant to the RAP; (3) under the primary jurisdiction doctrine, the administrative forum provided by the State of California is the appropriate forum for resolution of the City's claims concerning the cleanup of the OHF; and (4) there is no imminent and substantial endangerment at OHF as required by the RCRA framework.

Plaintiff rejoins that a number of factual developments preclude summary judgment, chief among them that "the City has now determined that [. . .] TCP has leached into the City's water supply from OHF." (Doc. 150, 2:7-2:10.) According to the City, because the current remediation efforts do not address TCP, each argument raised by the United States is unavailing.9 Even without the TCP allegations, the City argues that summary judgment is inappropriate because the United States has failed to obtain or commit sufficient funds to continue the cleanup at OHF.

The United States responds that the funding of the cleanup and the alleged introduction of TCP are irrelevant to the issues raised by its motion for three reasons. One, absent a showing of "substantial and imminent danger to health or the environment," Plaintiff's TCP allegations have no legal effect. Two, the DTSC has not ordered the parties to address TCP, therefore the United States is under no obligation to budget or spend money to remediate TCP from the OHF site. Three, the fact that small amounts of TCP were allegedly detected in some city and county well "is irrelevant to whether the Court has subject matter jurisdiction over the RCRA claim."

1. CERCLA § 113(h)

The substance of the United States' motion focuses on the jurisdictional bar contained in § 113(h) of CERCLA. In 1986, Congress amended CERCLA to add § 113(h) which bars federal courts from exercising jurisdiction over "any challenges" to removal or remedial environmental response actions taken pursuant to section 104 of CERCLA, 42 U.S.C. § 9604, while those response actions are ongoing. McClellan Ecological Seepage Situation ("MESS") v. Perry, 47 F.3d 325, 330 (9th Cir.1995). The provision reads:

42 U.S.C. § 9613(h).

Congress passed this section in order to protect "the execution of a CERCLA plan during its pendency from lawsuits that might interfere with the expeditious cleanup effort." McClellan, 47 F.3d at 329. Section 113(h) amounts to a "blunt withdrawal" of jurisdiction from any challenges to a CERCLA cleanup. Id. The Ninth Circuit has held that a lawsuit qualifies as a "challenge" under § 113(h), and is thus barred, if it is "directly related to the goals of the cleanup itself." Id.

The parties dispute whether the OHF clean up proceeds under the authority of § 104.10 The United States argues that the cleanup proceeds "pursuant to the CERCLA § 104 authority granted to it by the President in Executive Order 12,580 and under the DERP statute." According to the United States, this is an easy case: the OHF cleanup is a § 104 cleanup at a formerly owned defense site, nothing else. Plaintiff argues that the cleanup is being undertaken pursuant to the authority of § 120 of CERCLA, 42 U.S.C. § 9620, and therefore is properly categorized as a § 120 clean up. Section 120 contains provisions applicable to cleanups on currently owned federal facilities and does not trigger § 113(h)'s jurisdictional bar.

Relying on Fort Ord Toxics Project, Inc. v. California EPA, 189 F.3d 828 (9th Cir.1999), the City contends that the remediation activities at OHF are proceeding pursuant to § 120, not § 104. The City, however, ignores Fort Ord's direction that § 120 covers only federal facilities, not privately owned ones, and the statutory language of § 120 itself.11 Fort Ord held that it was "unclear whether the legislators who voted for 113(h) subjectively intended to allow immediate challenges to remedial actions at federal facilities even while disallowing such challenges at private facilities." Id. Fort Ord implies that challenges to remedial actions at private facilities—supposedly cleanups pursuant to § 104—are barred by § 113(h). Here, there is no dispute that OHF is privately owned by the City of Fresno and that the activities in question are "remedial activities."

The remediation work at OHF is also carried out under the Defense Environmental Restoration Program, a federal statute which authorizes the Department of Defense to conduct remediation activities on both currently owned DOD properties and formerly owned properties where the DOD was the owner, lessor, or possessor at the time of actions leading to contamination by hazardous substances. As for formerly owned DOD properties, the DERP statute authorizes the Formerly Used Defense Sites ("FUDS") program at 10 U.S.C. § 2701(c)(1)(B). Both parties here acknowledge that the work at OHF is part of the FUDS program.

Plaintiff argues that the Defense Environmental Restoration Program statute makes activities carried out under the statute subject to § 120 of CERCLA. It cites the DERP statute at 10 U.S.C. § 2701(a)(2) that program activities "shall be carried out subject to, and in a manner consistent with, section 120 (relating to Federal facilities) of CERCLA." Plaintiff cites this section to support its argument that the FUDS program operates under CERCLA § 120. Such an interpretation ignores the plain language of the section, which specifically references § 120 as relating to federal facilities in parentheses. Because the statute applies to both currently and formerly owned federal facilities, the statute directing DERP activities at federal facilities should be implemented in a manner consistent with CERCLA § 120 activities, which also apply at federal facilities. According to Plaintiff's argument, the DERP statute mandates that all its authorized activities be carried out under § 120, even those under FUDS that do not take place on federally owned properties. This makes little sense given that § 120 applies only to federal properties.

The United States also references the language in the cooperative agreement to support its contention that cleanup is performed pursuant to § 104. The cooperative agreement was discussed in detail by United States' counsel at oral argument on December 3, 2007:

(Reporter's Transcript, December 3, 2007, 11:18-12:19, 13:23-14:6).

In rebuttal, the City emphasizes that the Court should give great weight to recent factual developments "relating to activities and operations conducted on currently owned federal facilities causing the contamination at issue that is triggering remediation activities." This argument incorporates the United States' current operations at AVCRAD and CANG, which are on/near the OHF. However, neither AVCRAD nor CANG is involved in any aspect of the OHF cleanup:

(RT, December 3, 2007, 12:20-13:22.)

Here, the City's arguments that "[t]here is no proof that the investigation and remediation activities at OHF are proceeding under the direction of the Department of Defense pursuant to Section 104 of CERCLA," are contradicted by the record. All remediation efforts are taking place on City-owned property; the cleanup is proceeding under E.O. 12580 and the DERP statute, implicating § 104, not § 120. Moreover, while the United States adequately explains the "consistent with § 120" issue, the City does not explain why the cooperative agreement cites E.O. 12580 and the DERP statute. In particular, the City does not address this question: why would the cooperative agreement cite E.O. 12580 and the DERP statute if the cleanup was to proceed pursuant to § 120?

At oral argument on March 22, 2010, the City again stressed the importance of the United States' admissions concerning its operation of the AVCRAD and CANG facilities at or near the OHF. According to Plaintiff, these admissions clearly demonstrate the cleanup is proceeding pursuant to § 120, not § 104:

(Reporter's Transcript, March 22, 2010, 18:22-19:7, 21:11-21:16.)

Plaintiff's arguments are unpersuasive. First, the undisputed record points to a § 104 cleanup, not § 120. Second, Plaintiff overstates the United States' admissions concerning its AVCRAD and CANG operations. In the documents cited by Plaintiff, the United States stated: "The Cooperative Agreement noted that there are only two areas that are currently under the jurisdiction, control, or custody of the U.S. Department of Defense: [CANG and AVCRAD]. These are the only portions subject to CERCLA Section 120. None of the RAP-required cleanup activities will occur on these areas. All of the remedial work will take place on property that is not owned or operated by the federal government." (Doc. 45-2, pg. 14 at fn. 9.) Contrary to Plaintiff's assertions, the government's admissions do not support its position. If anything, the statements weaken it.12

The case law is also contrary to the City's position. Pollack v. U.S. Dep't of Defense, 507 F.3d 522 (7th Cir.2007) is most applicable. There, the Seventh Circuit held that § 113(h) barred a lawsuit arising out of ongoing efforts to remediate an Illinois landfill located on property that used to be a U.S. Army base. Pollack reconciled Presidential authority under CERCLA, § 120, the National Priorities List, and the Fort Ord decision:

Id. at 526 (citations omitted).

Shea Homes Ltd. P'ship v. United States, 397 F.Supp.2d 1194 (N.D.Cal.2005) is also instructive. In dismissing Plaintiff's RCRA claim for lack of subject matter jurisdiction, Shea Homes focused on whether the cleanup site was listed on the National Priorities List and whether there was EPA involvement:

Id. at 1203 (citations omitted).

Applying Pollack, § 120 "merely supplements the existing CERCLA regime by bringing federal property owners up to the same standards as private owners; it does not create a separate system for the feds." Id. at 525. Under Pollack, § 120 does not provide a separate grant of authority beyond the facts of Fort Ord.13 Assuming, arguendo, that AVCRAD and/or CANG changes the OHF to a "currently operated federal facility," the OHF would still be characterized as a "non-NPL federal property," not being remediated by the EPA, similar to Pollack and Shea Homes (two § 104 cases). This line of authority does not support the City's position. Here, the OHF is properly classified as a "non-NPL non-federal property," which on the spectrum of 113(h) cases is one degree from Pollack and Shea Homes (non-NPL federal property) and two degrees from Fort Ord (NPL federal property).14

The City relies on City of Moses Lake v. United States, 416 F.Supp.2d 1015 (E.D.Wash.2005), for the proposition that the "physical `location' of the remediation activities is immaterial to the analysis of whether contamination from a federal facility is driving the remediation." This is the City's best argument. Moses Lake held that the proposed plan was not a § 104 "removal" action, but a § 120 "remedial action," therefore Plaintiff was not jurisdictionally barred from seeking a preliminary injunction. Id. However, Moses Lake is distinguishable on a number of grounds, namely that it was decided on a motion for preliminary injunction, involved a "plan for proposed remediation" not ongoing remediation, a prior agreement specifically referenced § 120's authority, the cleanup site was listed on the NPL, and there was EPA involvement:

Id. at 1021, 1027.

The City fails to reconcile the relevant case law, including Pollack, Shea Homes, Moses Lake, and OSI, Inc. v. United States, 525 F.3d 1294 (11th Cir.2008).15 They involved materially different issues from the one in this case. Pollack, Shea Homes and OSI, Inc. dealt with whether 113(h)'s jurisdictional bar applied to federal facilities that were not listed on the NPL and/or did not involve the EPA. Conversely, Fort Ord and Moses Lake dealt with a federal facility that was listed on the NPL and involved the EPA. The OHF is a non-NPL non-federal property with no EPA involvement.16

The same reasoning applies to the City's most recent argument concerning TCP contamination. The City argues that because the "current State-approved remedial action plan for OHF does not yet address TCP, [thus] there can be no challenge to it that would implicate Section 113(h)." Applying the City's reasoning, anytime a new contaminant is alleged to be released on or near a current cleanup site—even if that site is privately owned and cleanup is proceeding under E.O. 12580 and/or DERP— § 113's jurisdictional bar is inapplicable.17 This not only would lead to an illogical result, but also conflicts with the stated purpose of § 113(h).

The City's arguments raise questions concerning how the ongoing remediation of a formerly owned federal property is impacted by the alleged discovery of a new contaminant. The City, however, does not bring its TCP allegations and AVCRAD/CANG arguments within the authority of § 120. The argument is weakened by the City's request to "solely enforce the existing orders from DTSC and RWQCB," that do not discuss TCP or concern AVCRAD/CANG. The relevant case law, including Fort Ord, Pollack, Shea Homes, Moses Lake, and OSI, Inc., distinguishes the City's argument.

Here, all the evidence points to the applicability of § 104: the language of the cooperative agreement; OHF is privately owned by the City of Fresno; OHF is not listed on the NPL; the EPA is not involved in the cleanup of OHF; and neither AVCRAD nor CANG is involved in any aspect of the OHF cleanup. Nor does the City explain the specific inclusion of E.O. 12580 and DERP in the cooperative agreement (as opposed to the language re: the authority of § 120 to cleanup AVCRAD and CANG). The City's evidence is insufficient to create a genuine dispute of material fact that CERCLA § 120 applies to the OHF cleanup and not § 104.

a. Is There a Challenge under § 113(h)?

The City contends that even if the cleanup efforts at the OHF site are proceeding under § 104, the complaint is not a "challenge" to a cleanup plan that removes jurisdiction. The United States responds that the City's RCRA cause of action constitutes such a challenge while the City contends that it does not. The City claims that it is not attempting to challenge the cleanup because of "the presence of TCP in the groundwater." The proposed order and SAC, however, show that the City requests compliance with RCRA as well as to enforce the terms of the cooperative agreements and DTSC orders.

The City's arguments have been rejected by the Ninth Circuit in McClellan Ecological Seepage Situation ("MESS") v. Perry, 47 F.3d 325 and Razore v. Tulalip Tribes, 66 F.3d 236 (9th Cir.1995). In MESS v. Perry, the Ninth Circuit took a broad view of the scope of § 113(h). There, the plaintiffs made an argument similar to that advanced here: that their RCRA claim was not a "challenge" under § 113(h) because it was not attempting to delay or modify the remedy, but rather only sought to compel the defendant's compliance with RCRA's requirements. Id. at 330-31. The Court held that while tangentially related claims, such as those to enforce minimum wage requirements, do not constitute a challenge under § 113(h), the plaintiffs' claim was "far more directly related to the goals of the cleanup itself." Id. at 330. The Court also concluded that for "all practical purposes" the plaintiffs were effectively seeking to "improve" the clean up. Id. As such, it found that the plaintiff's claim was a "challenge" barred by § 113(h). Id.

Shea Homes Ltd. P'ship v. United States, 397 F.Supp.2d 1194, is also instructive. Citing McClellan, Shea Homes held that the plaintiff's RCRA claim was related to the cleanup's goals and would interfere with the ongoing cleanup efforts:

Id. at 1204 (citations omitted).

The City argues that it is "solely seeking to enforce the existing orders from DTSC and RWQCB, not to second-guess or change them." The City further argues that a genuine dispute of fact exists because "the current State-approved remedial action plan for OHF does not yet address TCP." It is unclear, however, how TCP is related to the proposed injunction relief—the proposed order does not address TCP contamination. Here, the City's request to enforce the existing DTSC and RWQCB orders—and their provisions to divide the remediation into discrete tasks—constitutes a "challenge" under McClellan and Shea Homes, as well as other Ninth Circuit authority. See, e.g., Hanford Downwinders Coalition, Inc. v. Dowdle, 71 F.3d 1469, 1482 (9th Cir.1995) ("We held in Razore v. Tulalip Tribes, that `[a]n action constitutes a challenge if it is related to the goals of the cleanup.'").

The City's fourth claim under RCRA is DISMISSED WITH PREJUDICE for lack of subject matter jurisdiction pursuant to § 113(h) of CERCLA.

2. Imminent and Substantial Finding, Mootness, Primary JX

Because Defendant's summary judgment motion is barred by § 113(h) of CERCLA, it is unnecessary to resolve the issues concerning mootness, the primary jurisdiction doctrine, and whether the City has satisfied RCRA's "imminent and substantial endangerment" requirement.18

Assuming, arguendo, that § 113(h) does not bar the City's RCRA claim, it is unclear how the City demonstrates "credible evidence" to suggest than the current levels of TCP contamination create an imminent or substantial endangerment to health or the environment exists at or near the OHF.19 Moreover, the State of California, through the DTSC and RWQCB, has oversight over the remediation and has the scientific understanding and resources necessary to investigate and remediate alleged hazards. Conversely, the district court has neither the resources nor expertise necessary to properly address the scientific issues presented by an alleged imminent and substantial endangerment to health or the environment.

These concerns are shared by a number of district courts throughout the United States. See West Coast Home Builders, Inc. v. Aventis Cropscience USA Inc., No. 04-2225-SI, 2009 WL 2612380 (N.D.Cal. 2009) ("There are two fundamental problems with plaintiff's RCRA claim [...] [f]irst, the Consent Order already requires GBF/TRC to clean up the groundwater contamination, and that remediation has been underway for years [ ] Plaintiff seeks relief that it is already obtaining outside of this lawsuit."); see also River Vill. W. LLC v. Peoples Gas Light and Coke Co., 618 F.Supp.2d 847, 854-55 (N.D.Ill.2008) ("Unlike the district court, the [agency] has been specifically charged with the responsibility to develop and enforce regulations to implement the environmental laws passed by Congress [...] the district court's handling of this matter would be delayed by years if research and discovery which would be necessary to develop a basic understanding of the [contamination area and hazards presented]."); OSI, Inc. v. United States, 510 F.Supp.2d 531 (M.D.Ala.2007) ("OSI has presented no [ ] evidence to suggest that an imminent or substantial endangerment to health or the environment exists on OSI or Government property. Furthermore, the Government is conducting a remediation program in conjunction with ADEM to repair any contamination and resulting dangers that do exist [...] [t]hese two factors together lead the Court to conclude that the Government is entitled to summary judgment."); Davis Bros., Inc. v. Thornton Oil Co., 12 F.Supp.2d 1333, 1338 (M.D.Ga. 1998) ("[P]laintiff has presented no credible evidence supporting a finding of imminent and substantial endangerment to health or the environment [...] [m]oreover, the proposed remedy of injunctive relief is moot because Conoco has already agreed to remediate the site and pay for any costs associated with the cleanup, and the state is overseeing the cleanup more effectively than the court ever could. Thus, the RCRA claim fails on the merits, and is also moot."). This language applies with equal force to this case.

C. HSAA CLAIM

The United States argues that the Court lacks subject matter jurisdiction to hear the HSAA claim because the United States has not waived sovereign immunity. The City disagrees.

In enacting CERCLA, Congress "envisioned a partnership between various levels of government in addressing the complex and costly problems associated with hazardous waste remediation." Fireman's Fund Ins. Co. v. City of Lodi, Cal., 302 F.3d 928, 940 (9th Cir.2002). CERCLA specifically anticipates states enacting legislation addressing environmental remediation. Id. at 942. In California, the Carpenter-Presley-Tanner Hazardous Substance Account Act ("HSAA"), Cal. Health & Safety Code § 25300 et seq., grants the DTSC authority to require the cleanup of sites within the state where chemical contamination represents a threat to human health or the environment. Id. at 934. HSAA is the state law counterpart to CERCLA. Foster-Gardner, Inc. v. National Union Fire Ins. Co. of Pittsburgh, PA, 18 Cal.4th 857, 865, 77 Cal.Rptr.2d 107, 959 P.2d 265 (1998); City of Lodi v. Randtron, 118 Cal.App.4th 337, 351, 13 Cal.Rptr.3d 107 (2004). Under HSAA, DTSC oversees the cleanup of hazardous waste sites by issuing remedial orders and by entering into agreements with potentially responsible parties ("PRPs") to facilitate remediation efforts. Fireman's Fund, 302 F.3d at 934. Both the federal and state statutes are designed to: (1) achieve the complete and cost-effective cleanup of contaminated sites; and (2) provide a way to assign those costs to the parties responsible for the contamination. Id. at 945-46.

Under CERCLA, departments and agencies of the United States are subject to liability to the same extent as any non-governmental entity. United States v. Shell Oil Co., 294 F.3d 1045, 1052-53 (9th Cir.2002). Section 120(a)(1) explicitly waives the sovereign immunity of the United States with respect to CERCLA actions. Id. Regarding state laws governing hazardous waste response, § 120(a)(4) of the CERCLA statute addresses their application to the federal government:

42 U.S.C. § 9620(a)(4) (emphasis added).

The law regarding waivers of the sovereign immunity of the United States is straightforward. Absent an express waiver, "the activities of the federal government are free from regulation by any state." United States v. State of Wash., 872 F.2d 874, 877 (9th Cir.1989) (quoting Mayo v. United States, 319 U.S. 441, 445, 63 S.Ct. 1137, 87 L.Ed. 1504 (1943)). Any waiver of United States sovereign immunity must be unequivocal; it cannot be implied. United States Dep't of Energy v. Ohio, 503 U.S. 607, 615, 112 S.Ct. 1627, 118 L.Ed.2d 255 (1992); State of Wash., 872 F.2d at 877. Such a waiver "must be construed strictly in favor of the sovereign and not enlarged beyond what the language requires." Ohio, 503 U.S. at 615, 112 S.Ct. 1627 (citations and quotations omitted). Furthermore, only Congress can waive the sovereign immunity of the United States. Cal. v. NRG Energy Inc., 391 F.3d 1011, 1023-24 (9th Cir.2004); Tucson Airport Auth. v. Gen. Dynamics Corp., 136 F.3d 641, 644 (9th Cir.1998). It must do so explicitly in statutory text. United States v. Nordic Village, Inc., 503 U.S. 30, 37, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992) ("[t]he `unequivocal expression' of elimination of sovereign immunity that we insist upon is an expression in statutory text.").

To determine whether the United States waived its sovereign immunity under § 120(a)(4), it is necessary to harmonize the arguments advanced by the parties in the original briefing with those raised in the renewed motion. In 2007, the City argued CERCLA § 120(a)(4) includes both facilities currently owned or operated by the United States, as well as those that were formerly owned or operated, such as OHF. According to the City, because OHF was a "formerly operated facility," § 120(a)(4)'s waiver of sovereign immunity applies to OHF and the City's HSAA claim against the United States survives. The City relied exclusively on Tenaya Assoc. Ltd. P'ship v. United States Forest Serv., No. CV-F-92-5375 REC, 1995 WL 433290 (E.D.Cal. May 19, 1993) as the "law of this district."

In Tenaya, the court found that the § 120(a)(4) waiver included a waste site in Fish Camp, California that the United States had formerly operated and owned. Tenaya stated § 120(a)(4) is "meant to include all actions brought against the United States for harms which occur during a time when the United States owns or operates a facility." Id. at *2. The court observed that this interpretation preserved the present tense wording of the section and provided a clear limit on the waiver of sovereign immunity in that immunity was maintained for past harms that occurred before the government owned or operated the facility. Id. Citing surrounding CERCLA provisions in support of its conclusion, the Tenaya court explained that § 120(a)(4) should be read in conjunction with sections 120(a)(1) and section 107(a)(2), which subject federal facilities to the full extent of CERCLA liability and define who is liable, respectively. Id. at *2-3. This reading avoided what the Tenaya court termed an illogical outcome, namely, that if formerly owned or operated facilities were not included then (1) the United States would be liable for all past harms as long as it currently owned or operated a facility, regardless of whether it created those harms, and (2) the government could avoid liability by simply selling land that it contaminated before a lawsuit was initiated. Id. at *3.

Tenaya is not binding authority on another District court. Nor is it accurate to say it is "the law of this district." District court opinions are relevant for their persuasive authority but they do not bind other district courts within the same district. See, e.g., Hart v. Massanari, 266 F.3d 1155, 1174 (9th Cir.2001). Second, the Tenaya opinion is not persuasive. Every district court decision on this issue since has held that § 120(a)(4) only waives sovereign immunity for state law claims related to facilities currently owned or operated by the United States. See Steadfast Ins. Co. v. United States, No. CV 06-4686-AHM-RZX (C.D.Cal. Feb. 6, 2009); Gen. Motors Corp. v. Hirschfield Steel Serv. Ctr., Inc., 402 F.Supp.2d 800, 804 (E.D.Mich.2005); Miami-Dade County v. United States, 345 F.Supp.2d 1319, 1354 (S.D.Fla.2004); Crowley Marine Servs., Inc. v. Fednav Ltd., 915 F.Supp. 218, 222 (E.D.Wash.1995); Rospatch Jessco Corp. v. Chrysler Corp., 829 F.Supp. 224, 227 (W.D.Mich.1993). In so holding these courts have emphasized that a waiver must be unequivocal and cannot be implied. The facts and ruling in Tenaya are not helpful or persuasive in this case.

The arguments raised in the renewed motion are addressed in light of the majority view interpreting § 120(a)(4), i.e., Tenaya's inapplicability. Here, the substance of the United States' renewed motion mirrors that of its original motion: that none of the remediation is taking place on a federally owned facility, therefore § 120(a)'s waiver provisions do not apply. The City, in contrast, now argues that the United States waived its sovereign immunity by operating AVCRAD and CANG facilities at OHF—making it a "current operator"—, a position developed during an exchange between the Court and the City's counsel on December 3, 2007:

(Reporter's Transcript ("RT"), December 3, 2007, 53:2-54:12.)

On June 9, 2009,20 the City filed the operative second amended complaint, which included new/modified allegations that the United States is a "current operator" at OHF pursuant to its AVCRAD and CANG operations:

(SAC, ¶'s 25, 32-37, 39-41, 52, 124.)

The City's new allegations raise the question of what effect the United States' operation of AVCRAD and CANG have on the issue of waiver under § 120(a)(4). The United States argues that the operation has no effect because the actual remediation is taking place on land owned by the City, not federal property. The United States also maintains that the property leased by the federal government—AV-CRAD and CANG—was remediated, therefore the City did not incur any response costs on federal property. The City responds that it satisfies Iqbal because it "alleged in its SAC that the response costs were incurred at property that is currently owned or operated by the United States."

The United States is correct. The City's primary argument fails on the specific facts of this case, as the OHF remediation is taking place on property owned by the City, not the federal government. (See SAC, Doc. 123-3, ¶ 5 ("The City, which is involved solely because it owns the property the Defendants contaminated [....]"; Doc. 123-3 at ¶ 38 ("[The United States] continues to lease property from the City [....]"); Doc. 123-3 at ¶ 55 ("The City was identified by the State as a PRP solely because of its ownership of the OHF property [....]")). Moreover, the exhibits/maps attached to the SAC demonstrate that the remediation site is separate and distinct from AVCRAD and CANG, i.e., the alleged "current federal operations."21 (See Docs. 123-4 through 123-6; Doc. 123-3, ¶ 34.) The mere presence of the AV-CRAD and CANG facilities—on the OHF airfield generally—does not transmute the entire cleanup into a remedial action at a "federally owned or controlled" facility; such unaffiliated federal facilities are outside the scope of § 120(a)(4).22 The City does not sufficiently allege that there is a remedial action at a "facility" owned or operated by the federal government.23 See Iqbal, 129 S.Ct. at 1950 ("[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss [...] where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not `shown'—that the pleader is entitled to relief.").

At oral argument on March 22, 2010, the City argued that the United States waived its sovereign immunity by signing the 1994 cooperative agreement. The relevant portion of the Agreement provides:

(Doc. 45-6, pg. 7.)

The City relies on Kaffenberger v. United States, 314 F.3d 944 (8th Cir.2003) for the proposition that the United States waived its sovereign immunity because the cooperative agreement incorporated the HSAA.

The City's argument is a nonstarter. First, Kaffenberger is based on a tax law nuance: Congress, as the only branch able to waive the United States' sovereign immunity, provided a "mechanism that allows the IRS and taxpayer to extend the period for bringing suit to recover a refund beyond the normal two-year statutory period." Id. at 952. Kaffenberger is distinguishable; there is no such congressional action in this case. Second, the City's reasoning conflicts with the general rule that "only an express statute may waive the sovereign immunity of the United States." Lion Raisins, Inc. v. United States, 58 Fed.Cl. 391, 396 (Fed.Cl.2003) (citation omitted). These two factors together lead to the conclusion that the United States did not waive its sovereign immunity when it signed the cooperative agreement.

The City has failed to state facts sufficient to state a claim under the HSAA. A claim is plausible only "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. 1937, 1949 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).). The SAC's third cause of action under the HSAA does not meet this standard. See In re Syntex Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir.1996) ("Conclusory allegations and unwarranted inferences are insufficient to defeat a motion for judgment on the pleadings."). The United States' motion is GRANTED.

The City's HSAA claim is based on the conclusory allegation that the AVCRAD and CANG operations are "currently owned or operated federal facilities," as defined by 42 U.S.C. § 9620(a)(4). However, there are no facts alleged in the SAC which support such a conclusion. First, the remediation "facility" or "site" is owned by the City of Fresno, not the federal government. It is clear from the SAC—and attached exhibits—that the remediation site is only a portion of the larger OHF and is not located on the property leased by the federal government (for its AVCRAD or CANG operations). Second, it is/was impossible for the City to incur response costs at either AVCRAD or CANG because the Corps remediated both sites many years ago.24 For these reasons, the HSAA claim is DISMISSED WITH PREJUDICE.25

V. CONCLUSION

For the reasons stated:

(1) The United States' motion for partial summary judgment on the City's RCRA claim is GRANTED; and

(2) The United States' motion for partial judgment on the pleadings on the City's HSAA claim is GRANTED.

The United States shall submit a form of order consistent with, and within five (5) days following electronic service of, this memorandum decision.

IT IS SO ORDERED.

MEMORANDUM DECISION RE: THE CITY OF FRESNO'S MOTION FOR RECONSIDERATION OF THE COURT'S APRIL 22, 2010 DISMISSAL OF THE CITY'S RCRA AND HSAA CLAIMS (Doc.281)

I. INTRODUCTION.

Plaintiff City of Fresno brings this motion for reconsideration, pursuant to Federal Rule 59(e), of the April 22, 2010 Memorandum Decision, granting two motions filed by the United States: (1) for partial judgment on the pleadings or partial summary judgment as to Plaintiff's fourth claim under the RCRA; and (2) for partial judgment on the pleadings as to Plaintiff's third claim under the HSAA. According to the City, the Court overlooked controlling authority and facts advanced in its opposition which establish a genuine issue of fact on whether CERCLA § 120 applies to the OHF cleanup, not § 104. The City also moves for reconsideration on grounds that it uncovered "newly discovered evidence" concerning TCP.

II. FACTUAL BACKGROUND.

A. General Factual Background

This case involves a cost recovery/contribution action under CERCLA and related statutes, arising from the parties' continuing efforts to investigate and clean up Old Hammer Field ("OHF") in Northeast Fresno, a site presently occupied by the Fresno-Yosemite International Airport ("FAT").1 Pursuant to an interim cost sharing agreement dating back to 1993, the parties have funded the cleanup and remediation of contamination at the OHF. One of those parties, the City, now claims that it has paid too much.

On November 2, 2006 the City commenced this civil action against Defendants the Boeing Company ("Boeing"), the United States of America, United States Army Corps of Engineers, and the National Guard Bureau (collectively, the "United States"). (Doc. 1.) In March 2008, the action was stayed for a settlement reportedly reached among the parties. (Doc. 63.) In March 2009, however, the City raised new allegations in relating to a previously undisclosed contaminant at OHF, 1,2,3-trichloropropane ("TCP"). In April of 2009 the stay was lifted. (Doc. 122.) The City filed the second amended complaint on June 9, 2009 setting forth new allegations regarding the presence of TCP at OHF. (Doc. 123-3.)

B. The April 22, 2010 Memorandum Decision

On April 23, 2007, Defendant United States moved for partial judgment on the pleadings or partial summary judgment on Plaintiff's RCRA claim and for partial judgment on the pleadings as to the HSAA claim. The case was subsequently stayed pending settlement negotiations. On April 17, 2009, the stay was lifted and Plaintiff was ordered to file an amended complaint.

Plaintiff filed a second amended complaint on May 18, 2009, advancing twelve causes of action, including claims under CERCLA, RCRA and the HSAA.2 Defendant United States filed a "Notice of Renewal of Pending Dispositive Motions" on August 7, 2009. The unopposed motion was granted on August 12, 2009.

On August 20, 2009, the United States renoticed its motion for summary adjudication on Plaintiff's RCRA and HSAA claims.3 The City opposed the motion on September 14, 2009. By Memorandum Decision dated April 22, 2009, the Court determined that: (1) the OHF cleanup is proceeding pursuant to § 104, not § 120, therefore § 113(h) of CERCLA bars the City's RCRA claim; and (2) the City failed to state facts sufficient to state a claim under the HSAA.

The City now moves for reconsideration of that decision, arguing that the facts as pled demonstrate that its RCRA and HSAA claims must go forward. The United States opposes the City's motion on its merits, but asserts that if reconsideration is granted, the City's claims are infirm for the alternative grounds originally argued in its motion.

III. PROCEDURAL BACKGROUND.

On May 26, 2010, the City moved for reconsideration of the April 22, 2010 Memorandum Decision. The United States opposed the motion on June 3, 2010. Oral argument was held on June 14, 2010.

IV. LEGAL STANDARD.

A. Rule 59(e)

Federal Rule of Civil Procedure 59(e) provides a mechanism for a court to alter, amend, or vacate a prior order. See Fed. R. Civ. Pro. 59(e); Hamid v. Price Waterhouse, 51 F.3d 1411, 1415 (9th Cir. 1994). "While Rule 59(e) permits a district court to reconsider and amend a previous order, the rule offers an extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources." Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir.2003); Kona Enters. v. Estate of Bishop, 229 F.3d 877, 890-91 (9th Cir.2000). "A party seeking reconsideration must show more than a disagreement with the Court's decision, and recapitulation of the cases and arguments considered by the court before rendering its original decision fails to carry the moving party's burden." United States v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D.Cal.2001). In other words, where a party presents no arguments in the motion for reconsideration that had not already been raised in opposition to summary judgment, Rule 59(e) relief may be denied. Taylor v. Knapp, 871 F.2d 803, 805 (9th Cir.1989); Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir.1985). "Rule 59(e) amendments are appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." Dixon v. Wallowa County, 336 F.3d 1013, 1022 (9th Cir.2003). This standard is a "high hurdle." Weeks v. Bayer, 246 F.3d 1231, 1236 (9th Cir.2001). Rule 59(e) motions "may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation." Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir.2009); Carroll, 342 F.3d at 945. Rule 59(e) "does not provide a vehicle for a party to undo its own procedural failures [or] allow a party to introduce new evidence or advance new arguments that could and should have been presented to the district court prior to the judgment." DiMarco-Zappa v. Cabanillas, 238 F.3d 25, 34 (1st Cir.2001).

V. DISCUSSION.

A. RCRA

The City contends that relief under Rule 59(e) is appropriate for three reasons: (1) the Court erroneously concluded that a facility must be on the National Priorities List ("NPL") in order for there to be a § 120 cleanup; (2) the Court erred when it failed to recognize that downgradient contamination is included in the definition of "facility" under RCRA; and (3) there exists "newly discovered" evidence concerning TCP contamination at the OHF.

1. National Priorities List

The City first argues that it meets the requirements set forth in Federal Rule 59(e). In particular, the City submits that the Court erroneously held that a facility must be on the NPL in order for the remediation to proceed under § 120. Accordingly, the City's arguments implicate the "clear error" language of Rule 59(e).

The NPL is the list of hazardous waste sites eligible for long-term remedial action financed under the federal Superfund program. New Mexico v. General Elec. Co., 467 F.3d 1223, 1227 fn. 4 (10th Cir.2006). CERCLA requires the EPA to maintain the NPL, which is intended primarily to guide the EPA in determining which sites warrant further investigation. Village of DePue, Ill. v. Exxon Mobil Corp., 537 F.3d 775, 779 (7th Cir.2008). CERCLA and accompanying EPA regulations outline a formal process for assessing hazardous waste sites and placing them on the NPL. See 42 U.S.C. § 9605; 40 C.F.R. § 300.425. A site's cleanup may not be financed by Superfund monies unless the site is on the NPL. Village of DePue, 537 F.3d at 779. Placement on the list does not mean, however, that any remedial or removal action must be taken by the government. Id.

Relying on Beck v. Prupis, 529 U.S. 494, 120 S.Ct. 1608, 146 L.Ed.2d 561 (2000), Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1062 (9th Cir.2008), United States v. Colorado, 990 F.2d 1565 (10th Cir.1993), and 42 U.S.C. § 9620(a)(4), the City argues that it was clear error to hold that "a remediation is not a federal cleanup conducted pursuant to Section 120 unless it is on the NPL." However, absent from the City's string citation—and motion—is specific language of the April 22, 2010 Memorandum Decision holding that an NPL listing is an absolute prerequisite to a § 120 cleanup. This is best explained by the non-existence of such language, especially given the length and detail of the City's motion. A review of the April 22, 2010 Memorandum Decision makes clear that listing on the NPL was but one of five factors in the analysis:

City of Fresno v. United States, 709 F.Supp.2d 888, 905 (E.D.Cal.2010).

The Memorandum Decision referenced the NPL when analyzing the relevant case law, including Pollack v. U.S. Dep't of Defense, 507 F.3d 522 (7th Cir.2007), Fort Ord Toxics Project, Inc. v. Cal. EPA, 189 F.3d 828 (9th Cir.1999), Shea Homes Ltd. P'ship v. United States, 397 F.Supp.2d 1194 (N.D.Cal.2005), and City of Moses Lake v. United States, 416 F.Supp.2d 1015 (E.D.Wash.2005). However, any discussion of the NPL was limited to harmonizing the facts of this case with Pollack, Fort Ord, Shea Homes, and Moses Lake, four cases addressing the NPL in the context of §§ 104, 113(h), and 120:

City of Fresno v. United States, 709 F.Supp.2d at 903-04.

The City's arguments are unpersuasive. The Memorandum Decision expressed no view on whether listing on the NPL was a prerequisite to finding a cleanup under § 120. Rather, it noted that the remediation site in this case was not listed on the NPL, did not involve the EPA, and, in that respect, was unlike Fort Ord and Moses Lake, two cases cited by the City. The analysis ended there. Given the language of the Memorandum Decision, it is difficult to understand the City's arguments, which are misleading and deficient in their failure to address the Cooperative Agreement's provisions.5 The motion in this regard is DENIED.

2. "Ample Factual Basis"

The City next argues that there existed an "ample factual basis" to conclude that CANG and AVCRAD are part of the cleanup, leading to a § 120 cleanup, not § 104.6 Specifically, the City alleges that the term "federal facility" is not limited to "the footprint of the federally-occupied building or grounds [...] instead, facility is defined [] as any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located." To support its arguments, the City relies on the term "facility" as defined in CERCLA § 101(9), 42 U.S.C. § 9601(9).7

Until this motion for reconsideration, the City never raised or discussed CERCLA § 101(9).8 In responding to the United States' original and renewed motions, the City did not reference CERCLA's definition of "facility," nor did it discuss its relevance to the § 113(h) analysis. The City does not provide any justification as to why it could not, and did not, previously present its argument in response to the original or renewed motions. Nor does the City explain why it did not request to file supplemental briefing on this issue prior to the issuance of the Memorandum Decision.

In this Circuit, matters that were not presented in the first instance by a well-represented party are not considered on a motion for reconsideration. See 389 Orange Street Partners v. Arnold, 179 F.3d 656, 665 (9th Cir.1999). The expectation is that counsel will raise the issues that are to be decided, as the Court cannot be expected to anticipate a party's position. See, e.g., United States v. Rahmani, No.01-CR-00209-RMT, 2009 WL 449083 at 1 (C.D.Cal. Feb. 20, 2009). As made clear by the Ninth Circuit, a motion for reconsideration "may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation." Kona Enter., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir.2000). The City's unexplained, belated attempt to challenge the characterization of the OHF cleanup is not grounds to modify the April 22, 2010 Memorandum Decision, because the City waived this argument by failing to present it in either of its two lengthy oppositions.9 As has now become a pattern, it was not raised prior to the April 22, 2010 Memorandum Decision and is foreclosed under well-established Ninth Circuit precedent.

Even considering the substance of the City's arguments, its latest challenge has no merit. First, the City does not explain how its § 101(9) arguments alter the existing § 104 remedial action selected in the operative agreements/action plans. Second, the case law does not mandate a different result.

The initial infirmity with the City's position is that it does not connect § 101(9)'s "facility" language to the existing remedial cleanup at the OHF. For example, while it is true that § 101(9) broadly defines "facility" for CERCLA purposes, the City does not explain why § 101(9)'s language controls the § 113(h) analysis. Assuming, arguendo, that the AVCRAD/CANG's operations convert the entire OHF into a "federal facility," the cleanup still lacks the "separate grant of authority" found in Fort Ord and Moses Lake, two § 120 cases.10 In this context, OSI, Inc. v. United States, 525 F.3d 1294 (11th Cir.2008) is instructive. There, as here, the plaintiff argued that its RCRA claim survived a § 113(h) challenge because all remedial actions at federal facilities are selected under § 120, not § 104. The Eleventh Circuit disagreed:

Id. at 1298-99.

The Eleventh Circuit in OSI, Inc. further reasoned that "[w]here a federal facility is not listed on the NPL, the only language authorizing remedial or removal actions is found in § 9604":

Id.

Cutting against the City's arguments is that its restyled § 113(h) analysis involves but a single step: is the remediation site part of a larger "facility" under § 101(9)? Such a limited query ignores the 113(h) factors analyzed in Fort Ord, OSI, Inc., Pollack, Shea Homes, and Moses Lake.11 To varying degrees, these cases recognized the importance of the NPL, property ownership, EPA involvement, prior contractual language, and whether the cleanup was part of the DERP/FUDS process, among other factors.12 The City's test ignores these factors in favor of § 101(9), which has never been applied in the § 113(h) context. Moreover, the City overlooks the language of the Cooperative Agreement, which provided that the cleanup advanced under the FUDS/DERP statute and E.O. 12580, not § 120. The City does not attempt to reconcile its § 101(9) theory with either the relevant case law or the controlling Cooperative Agreement.

Additionally, the City's cited cases have nothing to say about whether a remedial action proceeds under § 104 or § 120. In particular, the cited authorities were limited to analyzing CERCLA § 103 (Sierra Club v. Seaboard Farms, Inc., 387 F.3d 1167, 1175 (10th Cir.2004)), § 106(a) (United States v. Tropical Fruit, S.E., 96 F.Supp.2d 71 (D.P.R.2000)), and § 107 (Pakootas v. Teck Cominco Metals, Ltd., 452 F.3d 1066, 1074 (9th Cir.2006); Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146, 1151 (1st Cir. 1989)). These authorities never reached the issue of whether a late-developing, off-site § 101(9) "facility" transmutes an existing § 104 cleanup to one under § 120, especially in light of the scope and specificity of the Cooperative Agreement.

To be clear, whether § 120 provides a separate grant of authority for the President to initiate cleanups of federal sites beyond the facts of Fort Ord need not be resolved here. It is enough to note the Seventh and Eleventh Circuit's decisions in Pollack and OSI, Inc., distinguish the facts and "separate grant of authority" of Fort Ord and Moses Lake, and analyze the specific facts of this case under existing case law. Contrary to the City's assertions, the sheer consistency of cases analyzing EPA involvement and/or listing on the NPL on a § 113(h) challenge requires an examination of these two factors. See, e.g., Fort Ord Toxics Project, Inc., 189 F.3d 828, 833-34 (relying on the undisputed fact that the clean up at issue was a remedial action being conducted by EPA pursuant to the grant of authority created by § 120).

The City's post hoc reasoning ignores the analysis contained in the April 22, 2010 Memorandum Decision. The entire record reveals that CERCLA § 104 applies to the OHF cleanup, not § 120.13 Further, the City offers no response to several of the questions posed in the April 22, 2010 Memorandum Decision, instead offering a series of arguments based on the 20-20 vision of hindsight in an exercise of Monday morning quarterbacking.14

Also weighing against the City is that the parties are conducting—and funding— a remediation program at the OHF in conjunction with the State of California, which has oversight over the remediation through the DTSC and RWQCB. Although the City minimizes the impact of its proposed injunctive relief, any judicial intervention necessarily imposes on the DTSC and RWQCB, the agencies supervising the remediation and investigating any alleged environmental hazards.15 In contrast to cases such as Maine People's Alliance and Natural Resources Defense Council v. Mallinckrodt, Inc., 471 F.3d 277, 287 (1st Cir.2006), there is no evidence that any state agency has disregarded its duty to oversee the OHF remediation or to evaluate whether contaminants may present an endangerment to the health or the environment at the OHF. Rather, the opposite is true. (See, e.g., Doc 45-5, the DTSC's October 4, 1994 "Imminent or Substantial Endangerment Determination and Order" to Rockwell International (Boeing's predecessor); Doc 45-12, the DTSC's October 31, 2006 "Imminent or Substantial Endangerment Determination and Order"; Doc. 255-4, the CDHS's letter requesting that the City remove Well 63 from its water system; Doc. 255-6, the State of California's PHG for TCP, published in August 2009; Doc. 281-3, email from Carl Carlucci, Regional Director of CDPH, to Lon Martin re: MCL timeline.)

In this context, the April 22, 2010 Memorandum Decision's discussion of the conflict between the City's proposed injunctive relief and the ongoing remediation is fully applicable:

City of Fresno v. United States, 709 F.Supp.2d at 907.

The City simply overreaches in an area where further judicial intervention is not required. The City's motion for reconsideration is DENIED.

3. 1,2,3—trichloropropane ("TCP")

The substance of the City's next argument is that the April 22, 2010 Memorandum Decision "underestimate[d] the impact of TCP at FAT." According to the City, its Rule 59 motion is sound because TCP presents an "imminent and substantial endangerment" and its request for relief is not a "challenge" to the current remedial action plan. The United States rejoins that the City does not present any "newly discovered" evidence and, even if it did, its evidence does not establish an "imminent and substantial endangerment" as that term is defined by 42 U.S.C. § 6972(a)(1)(B).

Assuming, arguendo, that § 113(h) does not bar the City's entire RCRA claim,16 and that it is not otherwise foreclosed,17 the City's motion fails because it does not satisfy the imminent and substantial endangerment element of its RCRA claim. RCRA provides for citizen suits "against any person ... who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment." 42 U.S.C. § 6972(a)(1)(B). Under this section, "[a]n endangerment can only be `imminent' if it `threatens to occur immediately.'" Meghrig v. KFC Western, Inc., 516 U.S. 479, 485, 116 S.Ct. 1251, 134 L.Ed.2d 121 (1996) (quoting Webster's New International Dictionary of English Language 1245 (2d ed. 1934)). "[T]his language `implies that there must be a threat which is present now, although the impact of the threat may not be felt until later.'" Id. (quoting Price v. United States Navy, 39 F.3d 1011, 1019 (9th Cir. 1994)). To show an "imminent and substantial" threat, the plaintiff must do more than establish the presence of solid or hazardous wastes at a site. Foster v. United States, 922 F.Supp. 642, 661 (D.D.C.1996). Instead, "endangerment must [be shown to] be substantial or serious, and there must be some necessity for the action." Price, 39 F.3d at 1019. Also, the fact that remedial activity in accordance with CERCLA has commenced at a site greatly reduces the likelihood that a threat to health or the environment is imminent. See Christie-Spencer Corp. v. Hausman Realty Co., Inc., 118 F.Supp.2d 408, 419-23 (S.D.N.Y.2000).

To establish imminent and substantial endangerment, the City submits TCP test results from 2002 and 2009. According to the City, in 2002, it sampled Well 63 for TCP. The samples indicated TCP levels of more than 100 times the regulatory action/notification level, specifically 0.67 parts per billion.18 The City conducted further sampling of TCP levels at the OHF in December 2009. The City states that the December 2009 samples revealed TCP levels ranging from .16 to .95 parts per billion at locations downgradient from where the United States historically or currently operates, including Well 70. The 2009 samples also detected TCP levels at Well 63 at concentrations of .3 parts per billion, which is 60 times the action level set by the CDHS.

The City further relies on the fact that two California agencies established non-binding environmental standards concerning TCP. First, in 1999, the California Department of Health Services ("CDHS") established a notification level for TCP of 0.005 parts per billion (5 parts per trillion).19 The CDHS also set a "response level" for TCP, which is the level at which the State recommends taking a drinking water source out of service. Currently, the response level is 100 times the notification level. Second, the California Office of Environmental Health Hazard Assessment ("OEHHA") set a public health goal ("PHG") for TCP of 0.007 parts per billion (7 parts per trillion).

It is undisputed that California recognizes TCP as a carcinogen. It is similarly beyond dispute that TCP is an "unregulated contaminant" and the basis for the notification level was TCP's cancerous effect on laboratory animals. See www.cdph.ca. gov/certlic/drinkingwater/Pages/ 123tcp.aspx, ("1,2,3-TCP causes cancer in laboratory animals (U.S. EPA, 1997), which is the basis for the notification level" and "[the CDPH] adopted a regulation that included [TCP] as an unregulated contaminant for which monitoring is required.") (last visited June 21, 2010). The parties also recognize that "the likely timeline for the development and adoption of the MCL [for TCP] is at least 4 years from now."20 (See Doc. 281-3, Email from Carl Carlucci, Regional Director of CDPH, to Lon Martin, the Assistant Director of the Public Utilities Department for the City of Fresno.) The parties dispute the importance and meaning of the four-year regulatory timeline.21

The final item of evidence advanced by the City is the deposition transcript of Dr. Robert J. Sterrett, a hydrogeologist retained by the City to opine on the sources and migration patterns of VOCs at the OHF. On December 30, 2009, the City submitted Sterrett's signed expert report, which was supplemented on January 29, 2010. (Docs. 191-5 through 191-8 and 195-6.) However, Sterrett did not opine that TCP is "an imminent and substantial endangerment to health or the environment" in his expert or supplemental reports. Rather, Sterrett expressed his "expert opinion" for the first time at his February 2, 2010 deposition.

In sum, the City argues that the TCP levels exceeding the State's non-binding standards, taken in combination with the Sterrett's expert testimony, present a genuine dispute of fact on whether TCP presents an imminent and substantial endangerment to public health at the OHF. The City's TCP arguments entail both the "clear error" and "newly discovered evidence" grounds of Rule 59(e).

The government responds that the City fails to meet its Rule 59 burden because the evidence is not "newly discovered." The government contends that the sampling results and Sterrett's deposition transcript could have been presented in the City's oppositions or filed as a supplement, but were not. While the government acknowledges that the City introduced portions of its TCP evidence at oral argument, it characterizes this action as "hasty" and observes that the City failed to supplement its briefing or expert reports.

In this Circuit, matters not presented in the original briefing are not considered on a motion for reconsideration. See 389 Orange Street Partners v. Arnold, 179 F.3d 656, 665. A motion for reconsideration "may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation." Kona Enter., Inc. v. Estate of Bishop, 229 F.3d 877, 890. First, the City had an opportunity to file a detailed declaration delineating Sterrett's testimony following his February 2, 2010 deposition. The City declined to present the evidence in this form, preventing adverse parties from addressing it.22 It is similarly unclear why the City introduced portions of the December 2009 TCP samples at oral argument on March 22, 2010, instead of via a court filing or declaration.23

Even assuming, arguendo, that the City's Rule 59 motion is properly supported, its motion for reconsideration fails because it does not establish the seminal point, i.e., that the disposal of TCP at the OHF may present an imminent and substantial endangerment to health or the environment. The City was required to show more than that TCP exists at or near the OHF airfield. The risk of endangerment from the TCP contamination must be imminent for there to be a claim under RCRA. See Crandall v. City and County of Denver, Colo., 594 F.3d 1231, 1237 (10th Cir.2010) (stating that "[o]ne essential point that Plaintiffs appear to overlook is that although the harm may be well in the future, the endangerment must be imminent.") (citation omitted). Moreover, the City's proffered evidence has failed to raise a genuine dispute of fact as to the seriousness of the risk posed by TCP. See, e.g., Newark Group, Inc. v. Dopaco, Inc., No. 2:08-CV-02623-GEB-DAD, 2010 WL 1342268 at *7 (E.D.Cal. Apr. 2, 2010) ("Absent additional evidence, the mere fact that [plaintiff] has produced such samples does not support a reasonable inference that [the contamination on its Property] presents an imminent and substantial endangerment to health or the environment.") (citations and internal quotations omitted).

The inadequacy of the City's evidence is best demonstrated by the February 2, 2010 deposition testimony of Dr. Sterrett, which the City claims distinguishes this case from Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199 (2d Cir.2009).24 At the outset, it is important to note the progression of Sterrett's "expert opinions" during the different stages of the case, i.e., first during expert disclosures, second, during his deposition, and, last, for the City's current motion for reconsideration. Sterrett's original expert report, filed December 30, 2009, contains a brief opinion on TCP, and it is qualified at best: "There are apparently at least two sources of 1,2,3-TCP in the vicinity of OHF. One is probably on the eastern portion of OHF and the other is between Wells 306 and 63." (See Doc. 191-5, "Sterrett's Expert Report," at pg. 28.) (emphasis added). Critical to the analysis, Sterrett excludes TCP as a contaminant causing an "imminent and substantial endangerment" at the OHF. The expert report provides, in relevant part:

(Id. at pg. 27.)

There is no opinion that TCP presents an imminent and substantial endangerment to health or the environment in Sterrett's expert report.25

Sterrett's February 2, 2010 deposition testimony is similarly flawed. Although he conclusorily recited § 6972(a)(1)(B)'s "magic words," Sterrett attributed TCP's "substantial and imminent endangerment" to the State's non-binding public health goal. The opinion was also qualified and did not state with specificity the degree of potential exposure to risk to humans and the environment or provide any evidence that anyone was subject to long-term exposure to TCP contamination or that there were realistic pathways of exposure at the OHF:

(Doc. 256-14, Dep. of R. Sterrett, at 12:19-15:4.)

This review of Sterrett's expert report and his deposition testimony demonstrate that the City's TCP arguments necessarily fail. Although the City's expert recited § 6972(a)(1)(B)'s "magic words," the deposition testimony adds nothing beyond the fact that TCP levels exceed California's non-binding public health goals.26 It lacks the factual detail and specific exposure evidence found sufficient in Burlington N. & Santa Fe Ry. Co. v. Grant, 505 F.3d 1013, 1020 (10th Cir. 2007) and California Dept. of Toxic Substances Control v. Interstate Non-Ferrous Corp., 298 F.Supp.2d 930 (E.D.Cal.2003), two cases relied on by the City. See Burlington, 505 F.3d at 1020 (finding genuine issues of material fact existed on plaintiff's RCRA claim based on expert testimony defining the specific carcinogenic effect on industrial outdoor workers (based on soil concentrations), that materials "also pose a threat to pets and wildlife as they are completely exposed," and that the "presence of this exposed material and its eruptive nature constitutes a potential threat to stormwater runoff and waters of the United States."); see also California Dept. of Toxic Substances Control, 298 F.Supp.2d at 981-82 (relying on the DTSC's multiple scientific reports by qualified experts to hold that a triable issue of material fact existed on the issue of imminent and substantial endangerment.27). Additionally, Sterrett relied on DTSC's Imminent and Substantial Endangerment Order, dated October 31, 2006, to support his expert opinion. However, that order did not mention TCP and the DTSC has not since issued an "Imminent and Substantial Order" for TCP. The City does not provide a single case citation where such an order was analyzed and applied to support a "substantial and imminent endangerment" opinion in this context.28

The City's remaining evidence is controlled by Crandall v. City and County of Denver, Colo., 594 F.3d 1231, Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199, and Newark Group, Inc. v. Dopaco, Inc., 2010 WL 1342268. Those cases hold that absent additional evidence, the mere fact that a plaintiff has produced contaminant samples exceeding non-binding levels does not support a reasonable inference that the contamination presents an imminent and substantial endangerment to health or the environment. See, e.g., Metacon Gun Club, 575 F.3d at 212-13. Specifically, the Newark Group, Inc. court stated: "evidence that certain samples taken from the [the property] exceeded [government] standards simply provides an inadequate basis for a jury to conclude that federal law, specifically, [RCRA's citizen suit provision, § 7002(a)(1)(B),] [42 U.S.C.] § 6972(a)(1)(B), has been violated." 2010 WL 1342268 at *7. The City submits evidence that TCP was detected at or near the OHF, including Well 70, but at levels it essentially admits are far from immediate. The City's evidence lacks the "imminence" or "threat" present in Burlington N. & Santa Fe Ry. Co. v. Grant, 505 F.3d 1013 and California Dept. of Toxic Substances Control v. Interstate Non-Ferrous Corp., 298 F.Supp.2d 930. This negates any "substantial and imminent" finding under the RCRA framework.29

The City has not offered any substantial evidence that the granting of the United States' motion was incorrect, nor has the City provided any new factual evidence to change the analysis. The City's motion for reconsideration is not supported by any circumstances justifying reconsideration. The City's motion for reconsideration is DENIED.

Even considering the evidence advanced in its Rule 59 motion, the City has not shown a genuine dispute of fact on whether TCP presents an imminent and substantial endangerment at the OHF. On the current record, its evidence is distinguishable from those cases finding a colorable claim under 42 U.S.C. § 6972(a)(1)(B), including Burlington N. & Santa Fe Ry. Co. v. Grant and California Dept. of Toxic Substances Control v. Interstate Non-Ferrous Corp. The City also understates the prospect of establishing a second cleanup—of an unregulated contaminant—on an existing remediation site managed by several state agencies.

B. HSAA Claim

The City's final Rule 59(e) argument relates to its claim under the Carpenter-Presley-Tanner Hazardous Substance Account Act ("HSAA"), Cal. Health & Safety Code § 25300 et seq., the state law counterpart to CERCLA. Under HSAA, the DTSC authorizes the cleanup of sites within the state where chemical contamination represents a threat to human health or the environment. Fireman's Fund Ins. Co. v. City of Lodi, Cal., 302 F.3d 928, 934 (9th Cir.2002).

Under CERCLA, departments and agencies of the United States are subject to liability to the same extent as any non-governmental entity. United States v. Shell Oil Co., 294 F.3d 1045, 1052-53 (9th Cir.2002). Section 120(a)(1) explicitly waives the sovereign immunity of the United States with respect to CERCLA actions. Id. Regarding state laws governing hazardous waste response, § 120(a)(4) of the CERCLA statute addresses their application to the federal government:

42 U.S.C. § 9620(a)(4) (emphasis added).

The law regarding waivers of the sovereign immunity of the United States is straightforward. Absent an express waiver, "the activities of the federal government are free from regulation by any state." United States v. State of Wash., 872 F.2d 874, 877 (9th Cir.1989) (quoting Mayo v. United States, 319 U.S. 441, 445, 63 S.Ct. 1137, 87 L.Ed. 1504 (1943)). Any waiver of United States sovereign immunity must be unequivocal; it cannot be implied. United States Dep't of Energy v. Ohio, 503 U.S. 607, 615, 112 S.Ct. 1627, 118 L.Ed.2d 255 (1992). Such a waiver "must be construed strictly in favor of the sovereign and not enlarged beyond what the language requires." Ohio, 503 U.S. at 615, 112 S.Ct. 1627 (citations and quotations omitted). Furthermore, only Congress can waive the sovereign immunity of the United States. Cal. v. NRG Energy Inc., 391 F.3d 1011, 1023-24 (9th Cir.2004); Tucson Airport Auth. v. Gen. Dynamics Corp., 136 F.3d 641, 644 (9th Cir.1998). It must do so explicitly in statutory text. United States v. Nordic Village, Inc., 503 U.S. 30, 37, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992) ("[t]he `unequivocal expression' of elimination of sovereign immunity that we insist upon is an expression in statutory text.").

In its original motion, the United States claimed that none of the remediation is taking place on a federally owned or operated facility, therefore § 120(a)'s waiver provisions do not apply. The City, in contrast, argued that the leased AVCRAD and CANG leasehold—separate and distinct from the remediation site—converted the entire OHF into a "facility owned or operated by the federal government." According to the City, it satisfied Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868, because it "alleged in its SAC that the response costs were incurred at property that is currently owned or operated by the United States."

On April 22, 2010, the United States' motion was granted on grounds that the City did not sufficiently allege that AVCRAD/CANG's presence at the OHF airfield generally waived its sovereign immunity under § 120(a) of CERCLA:

City of Fresno v. United States, 709 F.Supp.2d at 912-14.

In a footnote, it was reasoned that the City fused two distinct terms under the CERCLA framework:

Id. at 912-13, fn. 22.

In its motion for reconsideration, the City does not allege that the controlling law has changed since the Memorandum Decision. Rather, it argues there was "clear error" in the Court's interpretation of both the law and facts of this case.

The basis for the City's current motion is that the Court erred when it held that the City did not sufficiently allege that the remedial action at issue is taking place at a facility owned or operated by the government. According to the City, the court did not follow the appropriate legal standard for ruling on a Rule 12(c) motion because the court failed to "take as true" certain "factual allegations" made by the City in its second amended complaint, including: (1) that the federal government "owns" or "operates" the entire OHF based on alleged downgradient contamination from AVCRAD/CANG. However, this is a legal argument, not a factual assertion. Rule 12 does not require the court to take the City's legal arguments as true, or to construe them in its favor.

To support its theory, the City makes a variety of new legal arguments and repeats arguments already rejected by the Memorandum Decision. However, any newly alleged "facts" raised in the City's motion for reconsideration are ignored. See Fay Corp. v. BAT Holdings I, Inc., 651 F.Supp. 307, 308-09 (W.D.Wash.1987). The City may not use reconsideration as a means to present arguments that could, and should, have been made before the Memorandum Decision was issued. See, e.g., 389 Orange Street Partners v. Arnold, 179 F.3d at 665. A motion for reconsideration is not a vehicle to make arguments or present evidence that should have been raised before. For example, as explained in § V(A)(2), the City did not advance its CERCLA § 101(9) arguments in its opposition, nor did it discuss its relevance to § 120(a)(4). In this Circuit, matters that were not presented in the first instance are not considered on a motion for reconsideration.30

Here, the City has not presented any newly discovered and previously unavailable evidence.31 It has not submitted any facts or law suggesting that there was "clear error of law" and the initial decision was manifestly unjust. This issue is not one of those narrow instances where it is appropriate to grant relief under Rule 59. The moving party must show more than a disagreement with the Memorandum Decision. Rule 59 motion are not granted unless there is need to correct a clear error of law or prevent manifest injustice. Database Am., Inc. v. Bellsouth Adver. & Pub'g Corp., 825 F.Supp. 1216, 1220 (D.N.J.1993). The City has failed to set forth sufficient grounds to reconsider the April 22, 2010 Memorandum Decision.32

The City's Rule 59(e) motion is GRANTED only to the extent the April 22, 2010, Memorandum Decision Granting the United States' Motion for Partial Judgment on the Pleadings as to the City's HSAA Claim is amended as described. Otherwise, the motion is DENIED.

VI. CONCLUSION.

For the foregoing reasons:

The United States shall submit a form of order consistent with, and within five (5) days following electronic service of, this memorandum decision.

IT IS SO ORDERED.