RICHARD J. LEON, District Judge.
Plaintiff El Paso Natural Gas Company ("EPNG") and intervenor-plaintiff Navajo Nation (the "Tribe") bring this suit against the United States and numerous other federal defendants (collectively, "defendants") in connection with a former uranium mill located on the Navajo Nation Reservation near Tuba City, Arizona. Currently before this Court are the United States' Motion to Dismiss Plaintiffs' RCRA Claims [Dkt. # 65] and the Plaintiffs' Motion for Limited Jurisdictional Discovery [Dkt. # 74]. For the following reasons, the defendants' motion is GRANTED and the plaintiffs' motion is DENIED.
This case's background has been largely set forth in previous opinions of this Court, see El Paso Natural Gas Co. v. United States, 774 F.Supp.2d 40 (D.D.C.2011) ("EPNG II"); El Paso Natural Gas Co. v. United States, 605 F.Supp.2d 224 (D.D.C. 2009) ("EPNG I"), and our Circuit Court, see El Paso Natural Gas Co. v. United States, 632 F.3d 1272 (D.C.Cir.2011). Accordingly, I will only set forth those facts directly relevant to the current issue.
From 1955 to 1968, the United States contracted with EPNG and its predecessor to mine, mill, and process uranium and vanadium ore for use in the manufacture of nuclear weapons. Intervenor Complaint ("Tribe Compl.") ¶ 28 [Dkt. # 41]. These contractors processed the ore at a uranium processing mill (the "Mill") located on the Navajo Nation Reservation near Tuba City, Arizona. See Tribe Compl. ¶¶ 4, 28. During its operation, the Mill generated radioactive mill tailings — a type of radioactive waste. See Tribe Compl. ¶¶ 4, 7. At issue here are two nearby sites that plaintiffs allege are similarly contaminated with radioactive or hazardous wastes. Amended EPNG Complaint ("Am. EPNG Compl.") ¶¶ 1, 7-8 [Dkt. # 7]; Tribe Compl. ¶¶ 3, 9-15.
The first of these sites is the Tuba City Open Dump (the "Landfill"), which is partially located on the Navajo Reservation. See Tribe Compl. ¶ 13. Formerly operated by the Bureau of Indian Affairs ("BIA"), the Landfill has not accepted new waste since 1997. Id. Since 1995, however, the BIA, under RCRA authority, has been
On September 10, 2010, the BIA took a new tack in its efforts at the Landfill and entered into a settlement agreement with the Environmental Protection Agency ("EPA") under the authority of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"). Def. Ex. 1, Admin. Settlement Agreement ("Admin. Settlement") ¶¶ 1-2 [Dkt. # 65-1].
The second site is the Highway 160 Site, located across Highway 160 from the Mill. Tribe Compl. ¶ 9. Plaintiffs allege this site is contaminated with waste from the Mill. Id. In February 2009, Congress appropriated $5 million for cleanup of radiological contamination at the Highway 160 Site. Id. ¶ 12; Energy & Water Development & Related Agencies Appropriations Act, Pub.L. No. 111-8, 123 Stat. 601, 617-18 (2009); Pls.' Ex. 6, Bloedel Decl. ¶ 3 [Dkt. # 73-9]. In an agreement with the Tribe, the Department of Energy ("DOE") agreed to provide the Tribe with $4.5 million to remediate the site, while the DOE retained $500,000 for oversight. Def. Ex. 2, Agreement Amendment 021 at 2 [Dkt. # 65-2]; Def. Ex. 3, Agreement Amendment 026 [Dkt. # 65-3]; Bloedel Decl. ¶ 3. After a joint evaluation of the site's contamination, the Tribe was to assume primary responsibility for remediating the Highway 160 Site through an excavation process expected to take roughly two years. See Agreement Amendment, Attach. A at 3-5, 8-9. Further, as part of its agreement with the DOE, the Tribe released the United States "of any liability or claim ... concerning such remedial action." Agreement Amendment 026 at 2.
EPNG initiated this case on May 15, 2007, EPNG Compl. [Dkt. # 1], and filed an amended complaint on July 12, 2007, EPNG Am. Compl. [Dkt. # 7]. EPNG alleged violations of the RCRA, the Uranium Mill Tailing Radiation Control Act ("UMTRCA"), 42 U.S.C. §§ 6901 et seq. (2006), and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq. (2006). EPNG Am. Compl. ¶¶ 88-112. The defendants first moved to dismiss EPNG's UMTRCA and APA claims for lack of subject matter jurisdiction, and on March 31, 2009, this Court granted that motion. See EPNG I, 605 F.Supp.2d 224, 225-27.
Defendants now contend, in their Motion to Dismiss Plaintiffs' RCRA Claims [Dkt. # 65], that recent events have removed this Court's subject matter jurisdiction over the plaintiffs' remaining claims — the RCRA claims regarding the Landfill and the Highway 160 Site. Defs.' Mot. 2. For the following reasons, I agree, and defendant's Motion to Dismiss must, therefore, be GRANTED.
Federal courts "have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto." Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986). Under Federal Rule of Civil Procedure 12(b)(1), "the plaintiff bears the burden of establishing the factual predicates of jurisdiction by a preponderance of the evidence." Erby v. United States, 424 F.Supp.2d 180, 182 (D.D.C.2006). Hence, a court may dismiss a complaint for lack of subject matter jurisdiction only if "`it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Richardson v. United States, 193 F.3d 545, 549 (D.C.Cir.1999) (quoting Caribbean Broad. Sys., Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1086 (D.C.Cir.1998)). While facts alleged in the complaint must be accepted as true when reviewing a Rule 12(b)(1) motion to dismiss, Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coord. Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993), a court may consider material outside of the pleadings when determining whether the court has jurisdiction to hear the case. See Venetian Casino Resort, L.L.C. v. EEOC, 409 F.3d 359, 366 (D.C.Cir.2005) (citing EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 n. 3 (D.C.Cir.1997)).
Separately, under the principle of sovereign immunity, "the United States may not be sued without its consent." United States v. Mitchell ("Mitchell II"), 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). Because this principle constitutes a jurisdictional prerequisite, id., "[a]bsent a waiver ... the Federal Government and its agencies [are shielded] from suit," FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). Furthermore that waiver of sovereign immunity cannot be implied. It must be unequivocally expressed. United States v. Mitchell ("Mitchell I"), 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980) (quoting United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969)).
CERCLA grants the President, and by delegation, the EPA's Administrator, the
Importantly, CERCLA itself shields pending CERCLA response actions from lawsuits that might otherwise interfere with the response's expeditious cleanup. New Mexico v. Gen. Elec. Co., 467 F.3d 1223, 1249 (10th Cir.2006) (internal citations and quotations omitted). Indeed, CERCLA achieves this through its timing of judicial review provision, 42 U.S.C. § 9613(h) (or "§ 113(h)"), which is presently at issue here. Section 113(h) states:
§ 9613(h) (emphasis added). When interpreting this provision, courts have overwhelmingly concluded that "once an activity has been classified as a CERCLA § 9604 removal or remedial action, § 9613(h) amounts to a blunt withdrawal of federal jurisdiction," see e.g., Jach v. Am. Univ., 245 F.Supp.2d 110, 114 (D.D.C. 2003) (internal citations and quotations omitted), and that "litigation which interferes with even the most tangential aspects of a cleanup is prohibited." Oil, Chem. & Atomic Workers Int'l Union, AFL-CIO v. Pena, 62 F.Supp.2d 1, 10 (D.D.C.1999).
EPA and BIA's response actions at the Landfill here, conducted according to their Administrative Settlement, easily qualify as a removal action under § 104 of CERCLA. Specifically, BIA has committed to perform a "remedial investigation and feasibility study" ("RI/FS") at the Landfill. See Administrative Settlement ¶ 1. This RI/FS meets the criteria for a CERCLA "removal" action because it requires the BIA and EPA to investigate the release or threat of release of hazardous substances at the Landfill and evaluate potential cleanup solutions. See Administrative Settlement ¶ 9.
But, in their RCRA claims, the plaintiffs have requested an injunction ordering defendants to "perform cleanup activities" at the Landfill. EPNG Am. Compl. ¶ H; Tribe Compl. ¶ I.3. Were this Court to grant that relief, the government's ongoing RI/FS and remedial process would
Plaintiffs raise a number of arguments in response. In particular, plaintiffs argue that (1) defendants lack an adequate basis to select a removal action under § 104 of CERCLA; (2) § 113(h) is inapplicable to claims filed before the government initiates a removal or remedial action; (3) the plaintiffs' RCRA claims do not challenge the government's selected removal action; and (4) the completion of the government's remedial action is too uncertain to trigger § 113(h). Pls.' Opp'n 19-41. Unfortunately for plaintiffs, I disagree with all of their arguments.
Although plaintiffs challenge the government's authority to initiate a CERCLA action, they misstate the scope of that authority. See Pls.' Opp'n 19. Plaintiffs contend that § 113(h) requires a determination that a § 104 action relates to an actual release of a hazardous substance or a harmful pollutant or contaminant. See id. Not so. CERCLA authorizes an investigation and a response to either an actual or a threatened release of hazardous substance. See 42 U.S.C. §§ 9601(23), -(24), -9604(a)(1).
Undaunted, plaintiffs urge this Court to assume jurisdiction because certain factual CERCLA issues are "inextricably intertwined" with factual issues raised by plaintiffs' RCRA claims. Pls.' Opp'n 21-22. In addition they advocate allowing plaintiffs, either simultaneously or alternatively, jurisdictional discovery. Pls.' Opp'n 21-22; see also Pls.' Joint Mot. Limited Jurisdictional Discovery ¶¶ 4, 8-10 [Dkt. # 74]. Ultimately, they want the Court to treat defendants' motion as a summary-judgment motion. Pls.' Opp'n 22.
The path outlined by the plaintiffs is not only unnecessary, it is prohibited by law. The EPA and BIA have already determined that the conditions at the Landfill "constitute an actual and/or threatened `release' of a hazardous substance ... as defined in Section 101(22) of CERCLA, 42 U.S.C. § 9601(22)." Administrative Settlement ¶ 20. Given that the EPA and BIA have undertaken a removal action in response, this Court is precluded from exercising jurisdiction under § 113(h) or allowing the plaintiffs to proceed with discovery. See Raytheon Aircraft Co. v. United States, 435 F.Supp.2d 1136, 1154 (D.Kan. 2006) (denying plaintiffs discovery request as "contrary to the purpose behind" § 113(h)).
Second, plaintiffs raise, what appears to be, a novel issue in our Circuit: does § 113(h) bar claims filed before the EPA initiates a CERCLA response action. See Pls.' Opp'n 23-32; see also Reply 16. Notwithstanding plaintiffs' arguments to the contrary, neither the statute's language, congressional intent, nor its application alongside RCRA support their contention that the earlier filed claims are reviewable. See Reply 15-19, 25-32.
First, a "plain language reading of § 113(h) demonstrates that the provision makes no reference to the timing issues presented by Plaintiffs." River Village West LLC v. Peoples Gas Light & Coke Co., 618 F.Supp.2d 847, 852 (N.D.Ill.2008). Indeed, in River Village, a district court rejected the very same argument advanced by the plaintiffs here. That court noted that § 113(h) is specifically limited by five exceptions, "none of which apply to citizen suits filed pursuant to RCRA or make exceptions based on the chronology of the citizen suit[]." Id. Seeing no good basis to disagree, I will not read an additional exception into the statute's text, especially since doing so would wrongly imply a waiver of sovereign immunity. See Mitchell I,
Unfazed by the unlikelihood of their position, plaintiffs additionally claim that Congress intended to bar only challenges filed after the government initiates a CERCLA action. Pls.' Opp'n 25-27. Plaintiffs rely both on a House Report that references § 113(h)'s purpose as preventing "delays associated with a legal challenge of the particular removal or remedial action selected" and on other decisions applying § 113(h). Id. at 25-26 (quoting H.R.Rep. No. 99-253(V), at 25-26 (Nov. 12, 1985), 1986 U.S.C.C.A.N. 3124, 3148). However, neither this report nor these cases reflect a congressional intent to constrict § 113(h). They merely reinforce the (irrelevant) point that § 113(h) also bars challenges filed after CERCLA actions are selected.
Finally, plaintiffs' claim that applying § 113(h) to plaintiffs' claims undermines the RCRA's own limitations provisions is, at best, incorrect. Specifically, plaintiffs claim that applying the bar would undercut RCRA's notice and delay provisions, as well as its limitations on citizen suits.
As stated previously, § 113(h) bars suits, including claims under RCRA, that interfere with ongoing CERCLA cleanup responses. Oil, Chem. & Atomic Workers Int'l Union, AFL-CIO, 62 F.Supp.2d at 10; Cannon v. Gates, 538 F.3d 1328, 1332-36 (10th Cir.2008); Jach, 245 F.Supp.2d at 114-17. Plaintiffs' RCRA claims plainly meet this standard and constitute a challenge under § 113(h). See EPNG Am. Compl. ¶¶ 9-11 (requesting judgment declaring that defendants violated RCRA regulations and injunction ordering defendants to "perform cleanup activities necessary to abate present and imminent threats" caused by defendants' handling of solid or hazardous waste); Tribe Compl. ¶ 1 ("[T]he only appropriate remedy for
First, plaintiffs argue that their claims alleging violations of RCRA's requirements
Moreover, plaintiffs' pursuit of a declaratory judgment and civil penalties (paid to the U.S. Treasury) for alleged RCRA-regulations violations would additionally interfere with the RI/FS here. See Pls.' Opp'n 35.
Second, as previously stated, the plaintiffs' claims would undoubtedly interfere with the current CERCLA removal action because the Tribe has requested an injunction for clean-up activities and indicated that a specific type of clean-up ("clean closure" or "the excavation and out-of Indian-country, off-site disposal of the waste materials") is necessary. See Tribe Compl. ¶ 1, I; see also EPNG Am. Compl. ¶ H. Plaintiffs even acknowledge that they request an injunction for "cleanup activities necessary to abate ... threats ... caused by Defendants' treatment, storage, disposal or management of solid, hazardous or radioactive wastes." Pls.' Opp'n 36 (citing EPNG Am. Compl. ¶ H). Incredibly, they contend, however, that because this request is "stated in general terms," it could not interfere with EPA's ability to select an appropriate remedy. See id.
Plaintiffs also contend that the Administrative Settlement "is simply one among many vague proposals over many years to study the [Landfill]" and does not adequately commit the defendants to the
Because recent events have extinguished the controversy between the parties regarding the Highway 160 Site, plaintiffs' claims relating to that site are moot and must be dismissed. A federal court's jurisdiction is limited to "actual cases and controversies." Utah v. Evans, 536 U.S. 452, 459, 122 S.Ct. 2191, 153 L.Ed.2d 453 (2002) (citing U.S. Const, art. III, § 2, cl. 1). To satisfy this requirement, a litigant must have suffered an actual injury that can be redressed by a favorable decision. Iron Arrow Honor Soc'y v. Heckler, 464 U.S. 67, 70, 104 S.Ct. 373, 78 L.Ed.2d 58 (1983). Thus, "even where litigation poses a live controversy when filed, the [mootness] doctrine requires a federal court to refrain from deciding it if `events have so transpired that the decision will neither presently affect the parties' rights nor have a more-than-speculative chance of affecting them in the future.'" Columbian Rope Co. v. West, 142 F.3d 1313, 1316 (D.C.Cir.1998) (quoting Clarke v. United States, 915 F.2d 699, 701 (D.C.Cir.1990)).
Since plaintiffs' claims were originally filed, Congress has appropriated $5 million for the Highway 160 Site's remediation. See Bloedel Decl. ¶ 3. Further, the Tribe, in agreements with the DOE, assumed responsibility for remediating the site and released the United States from "any liability or claim ... concerning such remedial action." Agreement Amendment 026 at 2 (executing waiver in accordance with 42 U.S.C. § 7915). Plaintiffs contend that these events cannot moot their claims because these funds may be insufficient to fully address all potential issues at the site. Pls.' Opp'n 42-43. Plaintiffs also argue that the waiver releases the United States only from "liability arising from the performance of the remediation work." Id. at 43. I disagree with each argument.
First, the agreement here includes a broad statement of purpose: "to complete remediation of the Highway 160 Site." Agreement Amendment 026, Attach. A at 1. Further, the waiver contains two separate clauses. The first releases the United States "of any liability or claim ... concerning such remedial action." Agreement Amendment 026 at 2. The second releases the United States from "any claim arising
Given that the Tribe's Highway 160 Site claims are moot, EPNG's claims must also be dismissed as EPNG cannot maintain constitutional standing separate from the Tribe. See also EPNG's Mem. Opp. Mot. Dismiss or Transfer 2 [Dkt. # 11] (noting that had DOE remediated the sites under UMTRCA, this would "obviate the need for any ruling on EPNG's... claims under the [RCRA]"). The constitutional standing requirement also derives from Article Ill's case or controversy limitation, Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984), and demands three elements: injury-in-fact, traceability, and redressability, Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Defendants argue that EPNG lacks standing primarily because it cannot show an injury-in-fact. Defs.' Mot. 26-27. Defendants are correct that EPNG is "neither the present owner of the sites at issue, nor a nearby resident, business owner, or [sic] concerned citizen alleging that he or she suffers physical or aesthetic harm from contamination." Id. at 26.
EPNG raises essentially two arguments in response: (1) that the BIA's counterclaim supports standing and (2) that the threat of liability at the site supports standing. Pls.' Opp'n 45. But, because defendants have conceded that their counterclaim should be denied as moot upon dismissal of plaintiffs' claims, see supra note 13, the counterclaim will not support standing. And, any risk of liability here is far too remote to constitute an actual or imminent injury-in-fact. EPNG has not pointed to a single lawsuit, aside from one case related to the Mill that settled in 2000, see Defs.' Mot. 26-27, to support a conclusion that EPNG has or will suffer a concrete injury. See EPNG Am. Compl. ¶ 76; Pls.' Opp'n 45.
For the foregoing reasons, the Court GRANTS the United States' Motion to Dismiss Plaintiffs' RCRA Claims [Dkt. # 65] and DENIES the Plaintiffs' Motion
In Phoenix Consulting, the Republic of Angola had appealed the court's denial of its motion to dismiss based on the Foreign Sovereign Immunities Act (FSIA). 216 F.3d at 38-40. In a FSIA case, the plaintiff alleges facts supporting one of FSIA's statutory exceptions to a foreign sovereign's immunity. Id. at 39. If the defendant challenges the "legal sufficiency" of those facts as supporting the exception, the court accepts those allegations as true and resolves the dispute. Our Circuit recognized, however, that where, as in Phoenix Consulting, the defendant disputes the underlying factual basis of jurisdiction (i.e., the factual basis for a sovereign immunity exception — in Phoenix Consulting, the defendant disputed that a contract allegedly waiving immunity was ever signed), a different approach is necessary. In that situation, our Circuit held that a court may not "deny the motion to dismiss merely by assuming the truth of the facts alleged by the plaintiff and disputed by the defendant" but must go beyond the pleadings and resolve any necessary factual disputes, through such procedures as limited discovery. Id.
Here, the defendants, however, have not challenged the factual basis for the court's jurisdiction. Instead, the defendants have asserted that a legal exception to the court's jurisdiction applies under CERCLA § 113(h). Plaintiffs' claimed factual dispute is simply a fiction. Plaintiffs do not dispute that that the BIA and EPA entered into the Administrative Settlement at the Landfill. See Pls.' Opp'n 13. Rather, they only challenge whether the government has correctly invoked CERCLA and whether plaintiffs' claims constitute a challenge under § 113(h). See id. at 13-16, 19-23, 32-39.
Most telling is that plaintiffs refrain from directly asserting that the Landfill does not contain hazardous substances. See Pls.' Opp'n 19-23. Plaintiffs instead claim only that whether the Landfill includes "non-naturally occurring hazardous wastes that may trigger CERCLA presents a disputed issue." Id. at 20. Yet, plaintiffs' own allegations claim the Landfill contains hazardous substances. See EPNG Am. Compl. § 105 (alleging defendants "have handled, disposed of, stored, treated or transported hazardous waste ... [at] the Highway 160 Dump Site [and] the [Landfill]"); Tribe Compl. ¶ 76 (same); see also Defs.' Reply 3-4 [Dkt. # 77] (collecting cites in complaints for same). Even if this Court were not barred from allowing jurisdictional discovery as an impermissible challenge under § 113(h), this Court would not grant plaintiffs discovery to contradict their own allegations.
As to defendants' actual counterclaim, that claim is dependent on this Court's award of relief under RCRA. See United States' First Am. Countercl. 7 [Dkt. # 55]; United States' Opp'n Pl.'s Mot. Dismiss 2 [Dkt. # 59] ("Federal Defendants' reciprocal contingent counterclaim ensures that, should EPNG succeed on its RCRA Section 7002(a)(1)(B) claim, there is a vehicle for the Court to apportion cleanup responsibility equitably...."); Reply 20. Defendants concede that if plaintiffs' RCRA claims are dismissed, then this counterclaim should also be dismissed as moot. Id. Because that counterclaim will be dismissed as moot, it may not support an exercise of supplemental jurisdiction under 28 U.S.C. § 1367.
