El Paso Natural Gas Co. v. United States , Civil Case No. 07–905 (RJL).

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtRICHARD J. LEON
Citation847 F.Supp.2d 111
PartiesEL PASO NATURAL GAS COMPANY, Plaintiff, The Navajo Nation, Intervenor–Plaintiff, v. UNITED STATES of America, et al., Defendants.
Docket NumberCivil Case No. 07–905 (RJL).
Decision Date19 March 2012

847 F.Supp.2d 111

EL PASO NATURAL GAS COMPANY, Plaintiff,
The Navajo Nation, Intervenor–Plaintiff,
v.
UNITED STATES of America, et al., Defendants.

Civil Case No. 07–905 (RJL).

United States District Court,
District of Columbia.

March 19, 2012.


[847 F.Supp.2d 114]


Jerry Stouck, Greenberg Traurig, LLP, Robert Lawrence Shapiro, Hughes Hubbard & Reed LLP, Washington, DC, Thomas L. Sansonetti, Holland & Hart, LLP, Cheyenne, WY, for Plaintiff.

Paul E. Frye, Frye Law Firm, PC, Albuquerque, NM, David A. Taylor, Navajo Nation Department of Justice, Window Rock, AZ, Jerry Stouck, Greenberg Traurig, LLP, Washington, DC, for Intervenor–Plaintiff.


Eric G. Hostetler, Maureen Elizabeth Rudolph, United States Department of Justice, Environment & Natural Resources Division, Washington, DC, for Defendants.

MEMORANDUM OPINION

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.

BACKGROUND
I. Factual Background

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

[847 F.Supp.2d 115]

investigating the Landfill to assess the site's contamination. Id. ¶ 14.

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].1 Specifically, the BIA and the EPA entered into an Administrative Settlement Agreement and Order on Consent for Remedial Investigation/Feasibility Study (“Administrative Settlement”). Id. ¶ 1. Per the terms of the Administrative Settlement, the BIA will perform a “remedial investigation and feasibility study” (“RI/FS”) at the Landfill. Id. The RI/FS's objectives are: (1) “to determine the nature and extent of contamination and any threat to the public health, welfare, or the environment caused by the release or threatened release of hazardous substances, pollutants or contaminants” and (2) to evaluate potential remedial responses to that threat. Id. ¶ 9.

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.

II. This Litigation

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, 225–27.2 Then, on October 9, 2009, the defendants filed an answer and a counterclaim, asserting that this Court has jurisdiction over that claim under the RCRA and 28 U.S.C. § 1345. See United States' Answer Am. Compl. & United States' Countercl. (“Answer & Countercl.”) 19 [Dkt. # 37].

[847 F.Supp.2d 116]

On March 5, 2010, the Tribe filed an intervenor-complaint alleging ten separate claims against the United States. Tribe Compl. ¶¶ 74–126. In addition to alleging the same violations raised by EPNG's RCRA, APA, and UMTRCA claims, id. ¶¶ 74–83, 94–108,3 the Tribe also alleged a Clean Water Act claim, which the Tribe has since conceded, and various other claims under federal and tribal law, id. ¶¶ 84–93, 109–26. In July 2010, the United States moved to dismiss all of the Tribe's non-RCRA claims; and on March 27, 2011, this Court granted that motion. See generally EPNG II, 774 F.Supp.2d 40.

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.

STANDARD OF REVIEW

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)).

ANALYSIS
I. CERCLA § 113(h) Removes Jurisdiction Over Plaintiffs' RCRA Claims Related to the Landfill.

CERCLA grants the President, and by delegation, the EPA's Administrator, the

[847 F.Supp.2d 117]

authority to clean up hazardous wastes. 42 U.S.C. § 9604(a)(1) (2006) (or “§ 104”). Specifically, “CERCLA § 104 ... authorizes EPA, whenever any hazardous substance is released or is threatened to be released into the environment, to undertake two types of response actions: (1) to remove or arrange for the removal of the hazardous substance; and (2) to provide for remedial actions relating to the release or ‘substantial threat of release’ of the substance.” Gen. Elec. Co....

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4 practice notes
  • El Paso Natural Gas Co. v. United States, Nos. 12–5156
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • April 4, 2014
    ...Court also dismissed the RCRA claims relating to the Highway 160 Site as moot. El Paso Natural Gas Co. v. United States (El Paso IV), 847 F.Supp.2d 111 (D.D.C.2012). An order accompanying the decision denied a motion for discovery and dismissed the RCRA claims regarding the Dump and the Hig......
  • DeBrew v. Atwood, Civil Action No. 10–0650(JDB).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • March 19, 2012
    ...at or near cost.”). The Eighth Amendment does not allow “barbarous” punishment which contravenes society's “evolving standards of [847 F.Supp.2d 111]decency.” Rhodes v. Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). But plaintiff does not “state a claim of constitutional ......
  • The Site Cleanup Processes
    • United States
    • Superfund Deskbook -
    • August 11, 2014
    ...CERCLA cleanups.”); Reardon v. United States, 947 F.2d 1509, 1512 (1st Cir. 1991) (en banc); El Paso Natural Gas Co. v. United States, 847 F. Supp. 2d 111, 117 (D.D.C. 2012) (“When interpreting [9613(h)], courts have overwhelmingly concluded that once an activity has been classiied as a CER......
  • DeBrew v. Atwood, No. 12–5361.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 30, 2015
    ...by the district court also on the alternative ground that DeBrew failed to “state a claim of constitutional significance.” DeBrew, 847 F.Supp.2d at 111 (quotation marks omitted). We agree with the district court's decision to dismiss the claim on this ground.DeBrew's complaint alleges “[a]l......
3 cases
  • El Paso Natural Gas Co. v. United States, Nos. 12–5156
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • April 4, 2014
    ...Court also dismissed the RCRA claims relating to the Highway 160 Site as moot. El Paso Natural Gas Co. v. United States (El Paso IV), 847 F.Supp.2d 111 (D.D.C.2012). An order accompanying the decision denied a motion for discovery and dismissed the RCRA claims regarding the Dump and the Hig......
  • DeBrew v. Atwood, Civil Action No. 10–0650(JDB).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • March 19, 2012
    ...at or near cost.”). The Eighth Amendment does not allow “barbarous” punishment which contravenes society's “evolving standards of [847 F.Supp.2d 111]decency.” Rhodes v. Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). But plaintiff does not “state a claim of constitutional ......
  • DeBrew v. Atwood, No. 12–5361.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 30, 2015
    ...by the district court also on the alternative ground that DeBrew failed to “state a claim of constitutional significance.” DeBrew, 847 F.Supp.2d at 111 (quotation marks omitted). We agree with the district court's decision to dismiss the claim on this ground.DeBrew's complaint alleges “[a]l......
1 books & journal articles
  • The Site Cleanup Processes
    • United States
    • Superfund Deskbook -
    • August 11, 2014
    ...CERCLA cleanups.”); Reardon v. United States, 947 F.2d 1509, 1512 (1st Cir. 1991) (en banc); El Paso Natural Gas Co. v. United States, 847 F. Supp. 2d 111, 117 (D.D.C. 2012) (“When interpreting [9613(h)], courts have overwhelmingly concluded that once an activity has been classiied as a CER......

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