Gov't of Guam v. United States

• Decision Date: 05 October 2018
• Docket Number: No. 1:17-cv-2487 (KBJ),1:17-cv-2487 (KBJ)
• Citation: 341 F.Supp.3d 74
• Parties: GOVERNMENT OF GUAM, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Columbia

341 F.Supp.3d 74

GOVERNMENT OF GUAM, Plaintiff,

v.UNITED STATES of America, Defendant.

No. 1:17-cv-2487 (KBJ)

United States District Court, District of Columbia.

Signed October 5, 2018

John D.S. Gilmour, Pro Hac Vice, Mark Vincent Donatiello, Pro Hac Vice, Kelley Drye & Warren LLP, Houston, TX, Travis Cushman, Kelley Drye & Warren LLP, Washington, DC, for Plaintiff.

Michael C. Augustini, Thomas Joseph Alford, United States Department of Justice, Washington, DC, John B. Hughes, United States Attorney's Office, New Haven, CT, for Defendant.

MEMORANDUM OPINION

KETANJI BROWN JACKSON, United States District Judge

The island of Guam has been a territory of the United States for more than a century, and for most of the period between 1898 and the mid-1900s, Guam served as a central base of operations for the United States Navy in the South Pacific. (Am. Compl., ECF No. 7, ¶ 6.) Early on, the Navy created a major landfill on the island—the Ordot Landfill—to support its mission, and this dump was used to dispose of munitions and chemicals, as well as military and civilian waste, for decades. (Id. ¶¶ 7, 11.) As relevant here, by the time the United States government relinquished control of Guam to civilian authorities in the year 1950, the Ordot Landfill contained, and would continue to receive, significant quantities of trash and hazardous waste that posed a serious risk to the surrounding environment. As a protectorate of the United States, Guam is subject to U.S. environmental laws, and pursuant to an agreement with the U.S. Environmental Protection Agency ("the EPA") that arose under the Clean Water Act ("CWA"), 33 U.S.C. §§ 1251 – 1387, the local Guamanian authorities shut down the Ordot Landfill in 2011, and commenced the arduous (and quite expensive) task of cleaning up the landfill and permanently containing its contents so as to prevent hazardous waste leaks that threatened rivers, waterways, and the Pacific Ocean. (See id. ¶¶ 12, 14.) The Government of Guam ("Guam" or "Plaintiff") has now brought the instant three-count complaint against the United States ("United States" or "Defendant") under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601 – 75. Guam alleges that, because the United States substantially contributed to the environmental contamination at the Ordot Landfill, the United States should pay the full $160,000,000 cost of cleaning up the dump under CERCLA's section 107(a)'s cost-recovery mechanism (see Am. Compl. ¶¶ 23, 25 (Count I) ), or should at least pay its fair share of the cleanup costs under CERCLA's section 113(f)(3)(B)'s contribution mechanism (see id. ¶ 31 (Count III) ).¹ Guam also seeks a declaratory judgment that establishes the United States's liability for "future removal and remediation costs incurred by Guam[.]" (Id. ¶ 29 (Count II).)

Before this Court at present is the United States's motion to dismiss Guam's complaint under Federal Rule of Civil Procedure 12(b)(6). (See United States' Mem. in Supp. of Mot. to Dismiss Guam's Am. Compl. ("Def.'s Mem."), ECF No. 27-1.) In its motion to dismiss, the United States argues that Guam cannot compel the United States to pay for the closure and remediation of the Ordot Landfill under CERCLA's section 107(a) because, under the circumstances presented here, CERCLA only provides Guam with a claim for contribution under section 113(f)(3)(B) (see id. at 28–29), and, unfortunately for Guam, any such contribution action must be dismissed as untimely, per the applicable three-year statute of limitations (see id. at 36–39).² The United States's argument hinges on the established view that section 107(a) claims and section 113(f)(3)(B) claims are mutually exclusive, and the contention that Guam's circumstances fit the latter provision, because Guam previously executed a 2004 Consent Decree with the EPA that purportedly "resolve[d] its liability to the United States" for the cleanup and closure of the Ordot Landfill, and the United States considers that agreement to be a cognizable "settlement" for section 113(f)(3)(B) purposes. See 42 U.S.C. § 113(f)(3)(B). Guam responds that the 2004 Consent Decree did not "resolve its liability" within the meaning of section 113(f)(3)(B), nor does that agreement qualify as a CERCLA "settlement," and thus, Guam maintains that it is not precluded from bringing a cost-recovery claim under section 107(a). (See Government of Guam's Mem. in Opp'n to the United States of America's Mot. to Dismiss Guam's Am. Compl. ("Pl.'s Opp'n"), ECF No. 30, at 15–18.)

On September 30, 2018, this Court issued an Order that DENIED the United States's motion to dismiss. (See Order, ECF No. 37.) This Memorandum Opinion explains the reasons for that Order. In short, the Court concludes that a cost-recovery action under section 107(a) remains available to Guam because the 2004 Consent Decree plainly left the issue of liability for the costs associated with the Ordot Landfill cleanup unresolved, and therefore, section 113(f)(3)(B)'s contribution mechanism was not triggered. Consequently, and to that extent, the Court finds that the United States's motion to dismiss Guam's cost-recovery claim under section 107(a) must be denied.³

I. BACKGROUND⁴

A. The Ordot Landfill

Over one hundred years ago, the United States captured the island of Guam from Spain and began administering the island as a United States territory. (See Am. Compl. ¶ 6.) Between 1898 and 1950, the United States Navy "unilaterally governed and operated" Guam (id. ), and at some point during its administration of the island's operations, the Navy established the Ordot Landfill to dispose of the waste being generated on the island (see id. ¶ 7). In 1950, the Navy handed Guam, and the landfill, over to the newly-established civilian government (see id. ¶ 10), and the Guamanian authorities continued to operate the Ordot Landfill as a dump until the facility was officially closed in 2011 (see id. ¶ 14).

Notably, throughout its lifespan, the Ordot Landfill accepted waste from both military and civilian entities. (See id. ¶ 11.) The Government of Guam alleges that the United States military deposited "[s]ignificant quantities of munitions and chemicals" at the dump, including hazardous substances such as DDT and Agent Orange. (Id. ) At the same time, the Ordot Landfill served as the only public dump site on the island of Guam until 2011 (see id. ), and it appears that even though the landfill "reached capacity in 1986, it continue[d] to receive virtually all of the industrial and municipal waste from the civilian population of Guam" for a significant period of time thereafter, United States v. Gov't of Guam , 02-00022, 2008 WL 216918, at *1 (D. Guam Jan. 24, 2008). Thus, "[w]hat was once a valley [became] at least a 280-foot mountain of trash." Id. (describing the Ordot Landfill back in 2008).

For present purposes, it is important to note that because the Ordot Landfill was built in the pre-World War II era, it was not designed with modern environmental practices in mind, and thus, did not have certain safeguards to shield the surrounding environment from contamination. For example, "[d]uring its years of operation, the Ordot Landfill was ... uncapped at its top." (Am. Compl. ¶ 12.) Consequently, "[t]he landfill absorbed rain and surface water" from storms and other sources, and this water "percolated through the landfill and picked up contaminants." (Id. ) In addition, since the landfill was also "unlined on its bottom[,]" the contaminated water—which is known as "leachate"—leaked out of the Ordot Landfill into the nearby Lonfit River, and the river carried hazardous materials from the landfill out into the Pacific Ocean. (Id. )

The EPA has been aware of these and other environmental problems with the Ordot Landfill for many decades; indeed, the agency placed this site on the National Priorities List as far back as 1983, which indicated its "priority [status] for the expenditure of funds to respond to the release or threatened release of hazardous substances." (Id. ¶ 13.) Moreover, starting in 1986, the EPA began issuing administrative orders under the CWA, directing Guam's civilian government to halt the further discharge of contaminants from the Ordot Landfill into the rivers and oceans of Guam. See Guam , 2008 WL 216918, at *1. Over the next fifteen years, the EPA regularly ordered Guam to devise a feasible plan for containing and disposing of the waste at the landfill, but Guam did not provide a plan that satisfied the agency. See id.

B. The EPA's CWA Lawsuit And The Resulting Consent Decree

The EPA finally filed a lawsuit against Guam in 2002, "asserting that leachate was discharging from the Ordot Landfill into the Lonfit River and two of its tributaries" in violation of the CWA. (Am. Compl. ¶ 14.) The EPA's legal action sought (1) "[a]n injunction ordering the Government of Guam to comply with the [CWA]"; (2) civil monetary penalties; (3) and court orders that required Guam to file timely and complete applications for any required discharge permits and forbade Guam from allowing further unpermitted discharges from the landfill. (CWA Compl., Ex. 2 to Decl. of Matthew Woolner in Supp. of Def. United States' Mot. to Dismiss ("Woolner Decl."), ECF No. 27-2, at 13 (Prayer for Relief).) Ultimately, rather than litigating these CWA claims in court, the parties entered into a consent decree in 2004 to resolve the EPA's lawsuit. (See 2004 Consent Decree, Ex. 3 to Woolner Decl., ECF No. 27-2, at 16–45.)

The 2004 Consent Decree between Guam and the EPA required Guam to pay a relatively modest civil penalty (see id. ¶ 5); mandated that Guam close the Ordot Landfill and cease the discharge of pollutants into the Lonfit River (see id. ¶ 8); and required Guam to construct a new municipal landfill to replace the Ordot Landfill (see id. ¶ 9). Significantly for present purposes, despite imposing these obligations on Guam, the Consent Decree specifically...