Worldworks I, Inc. v. U.S. Department of Army, Civil Action No. 97-D-413.

• Decision Date: 07 October 1998
• Docket Number: Civil Action No. 97-D-413.
• Parties: WORLDWORKS I, INC., Plaintiff, v. UNITED STATES DEPARTMENT OF THE ARMY; Robert M. Walker, in his official capacity as the Acting Secretary of The United States Army; United States Environmental Protection Agency; and Carol Browner, in her official capacity as Administrator of the United States Environmental Protection Agency, Defendants.
• Court: U.S. District Court — District of Colorado

22 F.Supp.2d 1204

WORLDWORKS I, INC., Plaintiff, v. UNITED STATES DEPARTMENT OF THE ARMY; Robert M. Walker, in his official capacity as the Acting Secretary of The United States Army; United States Environmental Protection Agency; and Carol Browner, in her official capacity as Administrator of the United States Environmental Protection Agency, Defendants.

Civil Action No. 97-D-413.

United States District Court, D. Colorado.

October 7, 1998.

Robert Ukeiley, Randall M. Weiner, Aurora, CO, for plaintiff.

Robert H. Foster, United States Dept. of Justice, Environmental and Natural Resources Division, Denver, CO, for defendant.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION

DANIEL, District Judge.

This matter came before the Court on the Motion to Dismiss filed by the Defendants, United States Department of the Army, Robert M. Walker, in his official capacity as the Secretary of the United States Army;¹ the United States Environmental Protection Agency, and Carol Browner, in her official capacity as Administrator of the United States Environmental Protection Agency (hereinafter "Defendants"). The Court has carefully read and reviewed the Complaint and the applicable moving papers, and heard the argument of counsel. For the reasons set forth below, the Court grants Defendants' motion to dismiss for lack of subject matter jurisdiction.

BACKGROUND

This case arises from the Environmental Protection Agency's ("EPA") supervised cleanup of hazardous waste contamination at the United States Department of the Army's ("Army") Rocky Mountain Arsenal ("the Arsenal"), a federal facility owned by the United States and operated by the Army. Plaintiff WorldWorks I Inc. ("Plaintiff") filed this citizens' suit under the Comprehensive Environmental Response, Compensation and Liability Act, as amended ("CERCLA"), 42 U.S.C. §§ 9601-75, specifically under section 310(a)(2) of CERCLA, 42 U.S.C. § 9659(a)(2), to require that the Army and the EPA enter into an interagency agreement ("IAG") as required by 42 U.S.C. § 9620(e)(2) (Claims One and Two) or, in the alternative, to amend the existing IAG (Alternative Claims One and Two). Plaintiff premised jurisdiction on section 310(c) of CERCLA, 42 U.S.C. § 9659(c), and the general provision for federal question jurisdiction, 28 U.S.C. § 1331.

The Arsenal is a 27-square mile site located approximately ten miles northeast of downtown Denver, Colorado. See State of Colorado v. U.S. Department of the Army, 707 F.Supp. 1562, 1563 (D.Colo.1989). The Arsenal was constructed in 1942, and was used by the Army to manufacture and assemble chemical warfare agents, chemical products, and incendiary munitions, as well as for the detoxification and disposal of chemical munitions and agents. Id. In addition, portions of the Arsenal were used by Shell Chemical Company ("Shell"),² for the manufacture of pesticides and herbicides. Id. The Arsenal is listed on the National Priorities List ("NPL"), the list of the nation's priority sites under CERCLA. 42 U.S.C. § 9604(a)(8)(B). RSR Corporation v. EPA, 102 F.3d 1266, 1267 (D.C.Cir.1997).

In 1984, the Army commenced its cleanup of the Arsenal pursuant to CERCLA. As part of the settlement of a lawsuit against Shell alleging Shell's liability for Arsenal contamination, EPA, Shell and the Army (along with the Department of the Interior and the Agency for Toxic Substances and Disease Registry) executed a Federal Facility Agreement ("FFA") on February 17, 1989, pursuant to section 120(e) of CERCLA and consistent with existing EPA guidance. The FFA sets forth, among other things, the detailed responsibilities of EPA, the Army and Shell for cleanup of the Arsenal, and provides that EPA shall have final supervisory and regulatory authority for the cleanup at the Arsenal. The Arsenal FFA is a comprehensive plan and program for the assessment, selection, implementation, and monitoring of response actions at the Arsenal. Since February 1989, all response actions at the Arsenal have been implemented pursuant to and in accordance with the Arsenal FFA. The response actions or remediation which is occurring pursuant to the FFA is not expected to be completed until the year 2011.

Plaintiff is a non-profit group, some of whose members live near the Arsenal. Plaintiff seeks to require EPA and the Army to discharge the duty to enter into the interagency agreement required by section 120(e) of CERCLA, 42 U.S.C. § 9620(e). In response, Defendants assert that this Court lacks subject matter jurisdiction over Plaintiff's claim pursuant to section 113(h) of CERCLA, 42 U.S.C. § 9613(h), and moves to dismiss this action pursuant to Fed.R .Civ.P. 12.³

ANALYSIS

"Whenever it appears by suggestion of the parties that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." Fed.R.Civ.P. 12(h)(3); see also State Farm Mutual Automobile Insurance Company v. Dyer, 19 F.3d 514, 518 (10th Cir.1994). The plaintiff bears the burden of establishing subject matter jurisdiction. Thomson v. Gaskill, 315 U.S. 442, 446, 62 S.Ct. 673, 86 L.Ed. 951 (1942); FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990). The court may look beyond the pleadings to determine whether the requisite jurisdictional facts exist. Wright & Miller, Federal Practice & Procedure Civil 2d, § 1350 at 211-13, 217-222, and 224-225 (1990).

Plaintiff brings this action under CERCLA's citizens' suit provision, 42 U.S.C. § 9659(a), which states in pertinent part:

(a) Authority to bring civil actions

Except as provided in subsections (d) and (e) of this section and in section 9613(h) of this title (relating to the timing of judicial review), any person may commence a civil action on his own behalf —

(1) against any person (including the United States and any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of any standard, regulation, condition, requirement, or order which has become effective pursuant to this chapter (including any provision of an agreement under section 9620 of this title, relating to Federal facilities); or

(2) against the President or any other officer of the United States (including the Administrator of the Environmental Protection Agency ...) where there is alleged a failure of the President or of such other officer to perform any act or duty under this chapter, including an act or duty under section 9620 of this title (relating to Federal facilities), which is not discretionary with the President or such other officer.

42 U.S.C. § 9659(a) (emphasis added).

Thus, the statute which authorizes civil actions is expressly subject to the timing of judicial review provision set out in section 113(h) of CERCLA, 42 U.S.C. § 9613(h). Section 113(h) explicitly prohibits, with limited exceptions, federal courts from exercising subject matter jurisdiction over legal challenges to ongoing CERCLA "removal" or "remedial" activity. Id. It provides, in pertinent part, as follows:

(h) Timing of review.

No federal court shall have jurisdiction under federal law ... or under State law which is applicable or relevant and appropriate under section 9621 of this title (relating to cleanup standards) to review any challenges to removal or remedial action selected under section 9604 of this title, ... in any action except one of the following:

* * * * * * (4) An action under section 9659 of this title (relating to citizens suits) alleging that the removal or remedial action taken under section 9604 of this title or secured under section 9606 of this title was in violation of any requirement of this chapter. Such an action may not be brought with regard to a removal where a remedial action is to be undertaken at the site.

42 U.S.C. § 9613(h) (emphasis added).

This section has consistently been construed to mean that parties are precluded from challenging the EPA's removal or remedial actions until such actions are completed. Clinton County Commr's v. United States EPA, 116 F.3d 1018, 1022-23 (3rd Cir.1997); Schalk v. Reilly, 900 F.2d 1091, 1095-96 (7th Cir.), cert. denied, 498 U.S. 981, 111 S.Ct. 509, 112 L.Ed.2d 521 (1990); see also United States v. State of Colorado, 990 F.2d 1565, 1575 (10th Cir.1993) (§ 9613(h) does not bar federal courts from reviewing a CERCLA response action prior to its completion but it does bar any "challenges" to the CERCLA response actions). The purpose of this statute according to the Tenth Circuit's holding in United States v. City and County of Denver, 100 F.3d 1509, 1514 (10th Cir.1996) is the prevention of "time-consuming litigation which might interfere with CERCLA's overall goal of effecting the prompt cleanup of hazardous waste sites." Thus, to permit this case to proceed, this Court must find that Plaintiff's suit is not a "challenge" to removal or remedial action within the meaning of section 113(h) of CERCLA.

Plaintiff argues that its lawsuit, which seeks to require the Secretary of the Army and the Administrator of EPA to enter into an IAG for the Arsenal cleanup, is not such a "challenge" because Plaintiff does not seek a cleanup remedy different from the one chosen. Therefore, the relief Plaintiff seeks will not halt the present remedial activities. Defendants assert that there is already an IAG in existence between the Army and EPA; namely, the FFA, that it is the fundamental document pursuant to which the cleanup is being performed, and to require a new interagency agreement is to vitiate the existing one, resulting in just the kind of interference with ongoing cleanups section 113(h) was intended to prevent.

The Court does not need to address whether the FFA constitutes an IAG within the meaning of the statute, since the Court finds that Plaintiff's complaint seeking a new or modified IAG is subject to the jurisdictional bar of section 113(h). Specifically, I find that...