Sw. Org. Project v. U.S. Dep't of the Air Force

Decision Date15 March 2021
Docket NumberNo. CIV 20-0098 JB/JFR,CIV 20-0098 JB/JFR
Citation526 F.Supp.3d 1017
Parties SOUTHWEST ORGANIZING PROJECT; New Mexico Voices for Children; Senator Mimi Stewart; Senator Antonette Sedillo Lopez; Representative Andres Romero; Lucille Cordova; Reynaluz Jarez and Dante Smith, Plaintiffs, v. UNITED STATES DEPARTMENT OF THE AIR FORCE, Defendant.
CourtU.S. District Court — District of New Mexico

Charles de Saillan, Douglas Meiklejohn, Eric Jantz, New Mexico Environmental Law Center, Santa Fe, New Mexico, Attorneys for the Plaintiffs.

John Cane, Shari Howard, Environmental Defense Section, United States Department of Justice, Washington, D.C., Attorneys for the Defendant.



THIS MATTER comes before the Court on: the DefendantsMotion to Dismiss and Memorandum in Support, filed April 20, 2020 (Doc. 13)("MTD"). The Court held a hearing on July 21, 2020. See Clerk's Minutes at 1, filed July 21, 2020 (Doc. 36). The primary issues are: (i) whether the Court should dismiss the Plaintiffs’ Complaint, filed February 3, 2020 (Doc. 1)("Complaint"), for a lack of subject-matter jurisdiction, because the Plaintiffs’ imminent-and-substantial-endangerment claim under the Resource Conservation and Recovery Act's ("RCRA") § 7002(a)(1)(B), 42 U.S.C. § 6972(a)(1)(B), is an impermissible collateral attack on the Permit that the New Mexico Environment Department ("NM Environment Department") issued to the Defendant United States Air Force ("Air Force"); and, (ii) whether the Court should dismiss the Plaintiffs’ Complaint pursuant to the primary jurisdiction doctrine, and, thus, defer to the NM Environment Department's regulatory oversight of the case The Court concludes that: (i) it lacks subject-matter jurisdiction over the Plaintiffs’ Complaint, because the Plaintiffs’ imminent-and substantial-endangerment claim under the RCRA, § 7002(a)(1)(B), 42 U.S.C. § 6972(a)(1)(B), is an impermissible collateral attack on the Permit that the NM Environment Department issued to the Air Force to address the imminent solid wastes or hazardous wastes resulting from the Kirkland Air Force Base's ("Kirkland AFB") leaking and spilling of petroleum-based fuels that was discovered in 1999; and (ii) even if it had subject-matter jurisdiction, it should defer to the NM Environment Department's regulatory authority in overseeing the Air Force's corrective actions related to the leak, and, therefore, dismiss the Plaintiffs’ Complaint pursuant to the primary jurisdiction doctrine, because, under the Tenth Circuit's primary jurisdiction factors, (i) the case's factual issues fall within the NM Environment Department's expertise; (ii) the Air Force could be subjected to conflicting orders by the Court and the NM Environment Department; (iii) the Air Force and the NM Environment Department have already initiated corrective efforts; (iv) the NM Environment Department has monitored diligently the Air Force's efforts pursuant to the Permit; and (v) the Plaintiffs’ requested injunctive relief requires scientific or technical expertise. Accordingly, the Court grants the Air Force's MTD and dismisses the case.


The Court takes its facts from the Plaintiffs’ Complaint and the Air Force's MTD. See Complaint ¶¶ 1-40, at 1-13; MTD at 1-2, 4-6.

1. This matter arises from claims for injunctive relief to abate and mitigate endangerment under the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 - 6992 (1976)("RCRA"), which the Plaintiffs Southwest Organizing Project ("SWOP"); New Mexico Voices for Children; New Mexico Senator Mimi Stewart; New Mexico Senator Antoinette Sedillo Lopez; New Mexico Representative G. Andrés Romero; New Mexico resident Lucille Cordova; New Mexico resident Reynaluz Juarez; and New Mexico resident Dante Smith ("Plaintiffs"), bring against the Air Force, a service of the United States Department of Defense ("DOD"), and a United States agency or department. See Complaint ¶ 1, at 1.

2. Since approximately 1951, the Air Force has "operated a bulk fuel facility in the western portion of Kirkland Air Force Base," which has consisted of "above-ground storage tanks, a fuel loading rack, a pump house, and associate pipes and valves." Complaint ¶ 15, at 6.

3. "Through its history, the bulk fuel facility has been used to store aviation gasoline, jet propellant grade 4 (JP-4), jet propellant grade 8 (JP-8), gasoline and diesel fuel." Complaint ¶ 15, at 6.

4. Although the Air Force discontinued aviation gasoline storage and JP-4 storage in 1975 and 1993, respectively, the Air Force continues through the present to store "JP-8, gasoline, and diesel fuel" at Kirkland Air Force Base ("Kirkland AFB"). Complaint ¶ 15, at 6.

5. In November, 1999, Kirkland AFB personnel first "discovered that the bulk fuels facility was leaking from an underground fuel line," and, in total, "an estimated 5 million to 24 million gallons of petroleum-based fuels leaked from the facility and entered soil and groundwater at Kirkland Airforce Base." Complaint ¶ 16, at 7.

6. Since the November, 1999, discovery of the Kirkland AFB leak, the Air Force has been addressing the fuel leak contamination. See Complaint ¶ 38-39, at 12-13; MTD at 4. See also Phase 1 RCRA Facility Investigation Report ¶ 1, at 2, filed April 20, 2020 (Doc. 13-1)("RCRA Facility Investigation Report").

7. The NM Environment Department is the New Mexico state regulatory agency that has been, and is currently responsible for, ensuring that the Air Force's corrective actions are implemented in a manner protective of human health and the environment. See Complaint, ¶ 29, at 12-13; MTD at 3-4.

8. In July, 2010, following the NM Environment Department's issuance of a draft Permit, and following public comment periods in 2007 and 2010, which offered the public an opportunity to comment on the draft Permit and an opportunity for public hearing, the NM Environment Department issued the Air Force's Hazardous Waste Treatment Facility Operating Permit, Environmental Protection Agency ("EPA") Identification ("ID") Number ("No,") NM95570024423 for Kirkland AFB at 1, filed April 20, 2020 (Doc. 13-2)("Permit"). See MTD at 5.

9. The NM Environment Department regulates the Air Force's ongoing response in accordance with the Permit's corrective action requirements. See Permit at 1; MTD at 4. See also N.M.S.A. §§ 74-4-1 - 74-4-17.

10. In the Permit, the NM Environment Department identifies the "Bulk Fuel Facility Spill" at Kirkland AFB as an area with groundwater contamination that requires further investigation. MTD at 5 (citing Permit ¶, at 15).

11. The Permit's Part 6 outlines each step the Air Force must take in its corrective action process for the Kirkland AFB cleanup, including the Air Force's cleanup of the Bulk Fuels Facility ("BFF"). (citing Permit at 3, 5-8).

12. In addition, the Permit's Part 6 outlines the Air Force's other routine, required submissions that it must make to the NM Environment Department, including its submissions of quarterly and annual progress reports. MTD at 5 (citing Permit at 16-17).

13. Finally, the Permit's Part 6 states that the Air Force may be required to make Interim Measures before its final remedy selection, if the regulator determines that Interim Measures are necessary while the Air Force's long-term corrective action remedies are being evaluated and implemented. MTD at 5 (citing Permit at 9-10).

14. In its Final Remedies section, the Permit provides that the Air Force will prepare a Corrective Measures Evaluation ("CME") Report for the NM Environment Department, which includes: (i) summaries of the investigations and corrective actions that the Air Force has implemented to date; (ii) identification of potential receptors, regulatory criteria, cleanup standards and corrective actions goals; and (iii) a list of options and recommendations for the final remedy or remedies. MTD at 5 (citing Permit at 3, 5-8, 11-14, 16-17).

15. In addition, under the Permit provisions, the NM Environment Department is authorized to propose a different remedy from the remedy that the Air Force recommends in their CME Report. MTD at 5 (citing Permit at 5-7, 11-12).

16. Before the NM Environment Department selects a final remedy or remedies, however, the NM Environment Department must provide: (i) public notice; (ii) an opportunity for public comment; and (iii) an opportunity for public hearing, where all interested persons may have an opportunity to submit data and written or oral comments. See Permit at 5-7, 11-12. See also N.M. Admin Code §; 40 C.F.R. Part 270).

17. After the public meeting, the NM Environment Department will select a final remedy or remedies and issue a response to public comments. See Permit at 5-7, 11-12. See also NMAC §; 40 C.F.R. Part 270.

18. After the NM Environment Department selects a final remedy, the Air Force will submit a Corrective Measures Implementation ("CMI") Work plan to the NM Environment Department, which will include: (i) design drawings; (ii) a construction plan; (iii) an implementation schedule; (iv) an operation and maintenance plan; and (iv) a performance monitoring plan for the selected remedy. See Permit at 12.

19. "Once NMED approves the CMI Work Plan, the Air Force will implement the final remedy or remedies in accordance with the CMI Work Plan and implementation schedule." MTD at 6 (citing Permit at 13-14).

20. Pursuant to the Permit's permitted and regulatory corrective action process, the Air Force has performed various corrective actions at Kirkland AFB, including: (i) "replace[ing] the tanks and other structures"; (ii) "install[ing] vadose zone and groundwater monitoring wells"; (iii) "conduct[ing] investigations of soil and groundwater contaminants"; (iv) "implement[ing] soil vapor extraction to remove volatile organic compounds from the vadose zone"; and (v) "install[ing] four groundwater extraction wells and construct[ing] a carbon treatment system to remove contaminants...

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