El Paso Natural Gas Co. v. U.S., Civil Case No. 07-905 (RJL).

• Decision Date: 31 March 2009
• Docket Number: Civil Case No. 07-905 (RJL).
• Citation: 605 F.Supp.2d 224
• Parties: EL PASO NATURAL GAS COMPANY, Plaintiff, v. UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — District of Columbia

605 F.Supp.2d 224

EL PASO NATURAL GAS COMPANY, Plaintiff, v. UNITED STATES of America, et al., Defendants.

Civil Case No. 07-905 (RJL).

United States District Court, District of Columbia.

March 31, 2009.

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

Eric G. Hostetler, United States Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

RICHARD J. LEON, District Judge.

Plaintiff El Paso Natural Gas Company ("EPNG") brings this suit against the United States, the Department of Energy ("DOE"), and DOE's Secretary, Steven Chu, among numerous other federal defendants (collectively, "defendants"),¹ alleging violations of the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701, et seq., and the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §§ 6901, et seq., in connection with certain properties alleged to be contaminated with residual radioactive waste. Presently before the Court is defendants' motion to dismiss plaintiff's APA claim for lack of subject matter jurisdiction. Because the relevant federal statute on which plaintiff's APA claim is based expressly precludes the form of judicial review plaintiff seeks, the Court will GRANT defendants' motion.²

BACKGROUND

I. The Uranium Mill Tailings Radiation Control Act

Congress enacted the Uranium Mill Tailings Radiation Control Act ("UMTRCA") Pub. L. No. 95-604, 92 Stat. 3021, codified at 42 U.S.C. §§ 7901, et seq., in 1978 in an effort to "stabilize and control" the radioactive waste generated by the uranium mill operations that supported the United States' Cold War effort. 42 U.S.C. § 7901(a)-(b). To achieve this goal, UMTRCA prescribed an ambitious and expeditious remediation program. Pursuant to UMTRCA § 102, codified at 42 U.S.C. § 7912, DOE was required to designate uranium mill "processing sites" for DOE remediation at or near twenty-two specifically identified locations within one year of November 8, 1978. 42 U.S.C. § 7912(a)(1). UMTRCA defined "processing sites" to include both contaminated uranium mill sites, id. § 7911(6)(A), and any other property "in the vicinity of such site" that DOE determined to be contaminated with residual radioactive materials (hereinafter a "vicinity property"), id. § 7911(6)(B).³ As part of DOE's designations, UMTRCA required DOE to "determine the boundaries" of each site, id. § 7912(a)(2), and include, to the maximum extent practicable, vicinity properties, id. § 7912(e)(1). Critically, however, UMTRCA also established in § 7912(e)(2) an exception to DOE's timelimited designation authority, granting DOE continuing authority beyond the one-year period to include any vicinity property as part of a processing site designated under UMTRCA if DOE determines such inclusion to be appropriate to carry out UMTRCA's purposes.⁴ Id. § 7912(e)(2). With the exception of groundwater remediation restoration activities, UMTRCA required that DOE complete all remediation at designated sites prior to the termination of its authority under the statute, which Congress revoked on September 30, 1998. Id. § 7922(a)(1). Finally, in pertinent part here, UMTRCA also precludes judicial review of all "designations made" under § 7912. Id. § 7912(d).

II. Tuba City, Arizona

Tuba City, Arizona was one of the locations specifically identified in UMTRCA. Id. § 7912(a)(1). Plaintiff and its predecessor, Rare Metals Corporation, operated a uranium processing mill (the "Mill") near Tuba City from approximately 1956 to 1966. (Am. Compl. ¶¶ 3, 27 [Dkt. # 7].) The Mill, which was located on the Navajo Nation Reservation and near the Hopi Reservation, generated a significant amount of radioactive mill tailings and other waste. (Id. ¶¶ 1, 3.) Following UMTRCA's enactment, DOE designated the Mill a processing site under § 7912 and subsequently undertook remediation efforts. (Id. ¶¶ 58-60, 64.) While surface remedial action at the Mill site has since ceased, DOE continues to have an active groundwater remediation system in place.

In the early 2000s, the Navajo and Hopi Tribes identified two sites near the Mill that allegedly also contain radioactive and other waste materials generated by the Mill. (Id. ¶ 68.) The first, known as the Tuba City Dump, is located on both Navajo and Hopi Reservation land. (Id. ¶ 1.) The second, known as the Highway 160 Site, is located on the Navajo Reservation. (Id.) Neither site was included as a vicinity property in DOE's 1979 designation of the Mill, and DOE has not taken any remedial actions in connection with either site (hereinafter the "Properties"). (Id. ¶ 61.)

III. DOE Correspondence & the Present Lawsuit

Plaintiff alleges that in December 2003, the Navajo Nation wrote DOE a letter requesting that the Properties be remediated as vicinity properties under UMTCA. (Id. ¶ 69.) DOE responded on April 22, 2004 in a letter in which it allegedly issued a determination that the Properties were not vicinity properties under UMTRCA and, based on that determination, refused to provide ground water remediation. (Id. ¶ 70.) As a result, the Tribes have allegedly turned their sights on plaintiff, suing or threatening to sue plaintiff in order to force plaintiff to fund the Properties' remediation and compensate the Tribes for personal injuries. (Id. ¶¶ 7, 76.) Plaintiff filed this suit in May 2007 in an effort to avoid such liability, alleging as its primary claim that DOE's decision not to designate the Properties as vicinity properties under UMTRCA is arbitrary and capricious and seeking a declaration under the APA and the Declaratory Judgment Act, 28 U.S.C. § 2201, that DOE is responsible for the Properties' remediation.⁵ (Compl. ¶¶ 90, 93 [Dkt. # 1]; Am. Compl. ¶¶ 99, 102.) On April 18, 2008, defendants moved to dismiss plaintiff's APA claim.⁶

LEGAL STANDARD

As courts of limited jurisdiction, 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). In every case, therefore, "the jurisdictional requirements of Article III must be present before a court may proceed to the merits." Moms Against Mercury v. FDA, 483 F.3d 824, 826 (D.C.Cir.2007) (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)). When evaluating subject matter jurisdiction, plaintiffs bear the burden of proof. See id. at 828.

ANALYSIS

While the APA provides a limited waiver of the United States' sovereign immunity with respect to certain agency actions, that waiver does not apply where a statute explicitly precludes judicial review. 5 U.S.C. §§ 701(a)(1), 702, 704; Heckler v. Chaney, 470 U.S. 821, 828, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985). Courts, however, must carefully analyze statutory provisions precluding review, because there is "strong presumption that Congress intends judicial review of administrative action." Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986) (noting that courts should not cut off judicial review of agency actions "unless there is persuasive reason to believe that such was the purpose of Congress") (citing Abbott Labs. v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)). In this case, UMTRCA expressly provides in § 7912(d) that "[t]he designations made ... by [DOE] under this section shall be final and not be subject to judicial review." 42 U.S.C. § 7912(d). Accordingly, whether plaintiff's APA claim is precluded turns on whether DOE's purported decision to not include the Properties as part of the Mill processing site pursuant to § 7912(e)(2) constituted a "designation made." Based on a plain reading of the statute, I find that it did.

Plaintiff attempts to draw a distinction between "designations made" in the year following November 8, 1978 pursuant to § 7912(a) and DOE's authority under § 7912(e)(2) to "include" vicinity properties "as part of a processing site designated under [§ 7912]" after the expiration of the one-year period. (Pl.'s Mem. In Opp'n at 20-22 [Dkt. # 20].) Plaintiff, however, parses § 7912 too narrowly. As an initial matter, it is clear that § 7912(d) itself imposes no temporal or other limitation on its application, but rather applies to any "designation made," whether before or after November 8, 1979. 42 U.S.C. § 7912(d) (precluding judicial review of "designations made ... under this section" (emphasis added)). More importantly, a plain reading of UMTRCA indicates that a DOE decision to "include" a vicinity property within a processing site is, in fact, part and parcel of DOE's "designation" of the processing site itself. Rather than define "vicinity property" as an entity unto itself, UMTRCA includes the definition of vicinity property within its definition of "processing site." 42 U.S.C. § 7911(6)(B). As a result, to "include" a vicinity property within a processing site is nothing more than to designate the scope—or boundaries—of the processing site. See id. § 7912(a)(2) (directing DOE to "determine the boundaries" of each processing site "as part of [its] designation" of processing sites in the year immediately following November 8, 1978). This conclusion is exemplified by the use of the word "include" in § 7912(e)(1), which provides that "[t]he designation of processing sites within one year after November 8, 1978, ... shall include, to the maximum extent practicable, the areas referred to in section 7911(6)(B) [defining vicinity properties]." Id. § 7912(e)(1) (emphasis added). And finally, the fact that § 7912(e)(2) explicitly authorizes DOE to "include" vicinity properties as part of designated processing sites after the one-year designation limitation similarly buttresses this conclusion. Surely the language in § 7912(e)(1) referencing the one-year designation...