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Nuclear Watch New Mexico v. United States Department of Energy

United States District Court, D. New Mexico

July 12, 2018



         Plaintiff Nuclear Watch New Mexico, a project of the Southwest Research and Information Center, is dedicated to citizen action that promotes environmental protection and cleanup at nuclear facilities. Pl.'s Sec. Am. Compl., Doc. 42, ¶ 4 (“Complaint”). Plaintiff brings this action against the United States Department of Energy (“DOE”), Los Alamos National Security, LLC (“LANS”) and Intervenor New Mexico Environment Department (“NMED”) (“Defendants”), alleging violations of the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6901, et seq. (2017) and corresponding laws of the New Mexico Hazardous Waste Act, N.M. Stat. Ann. §§ 74-4-1 - 74-4-14 (2017) (“NMHWA”) relating to hazardous waste management at Los Alamos National Laboratory (“Laboratory”). Plaintiff seeks declaratory and injunctive relief, civil penalties, and costs of litigation, including attorney fees.

         Pending are NMED's Motion to Dismiss [Doc. 45] pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), claiming lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted; DOE's Motion to Dismiss [Doc. 47] pursuant to Rule 12(b)(1); and LANS' Motion to Dismiss [Doc. 48] under Rules 12(b)(1) and 12(b)(6), or Alternatively for Court Abstention under the doctrines of Burford and Primary Jurisdiction abstention. Having reviewed the motions, briefs, evidence, and relevant law, the Court concludes that the motions should be granted in part and denied in part as explained herein.

         Statutory and Regulatory Background

         To better contextualize the facts of this case, the Court begins by reviewing the statutory framework known as RCRA and its state analog, the NMHWA. RCRA is a comprehensive environmental statute that governs the treatment, storage, and disposal of solid and hazardous waste. See Chicago v. Envtl. Def. Fund, 511 U.S. 328, 331-32 (1994). RCRA's primary purpose is to “reduce the generation of hazardous waste and to ensure the proper treatment, storage, and disposal of that waste which is nonetheless generated....” Meghrig v. KFC W., Inc., 516 U.S. 479, 483 (1996). Citizens are permitted to bring private suits under RCRA in certain circumstances, but the “chief responsibility for the implementation and enforcement of RCRA rests with the Administrator of the Environmental Protection Agency.” Id. at 483-84 (citing 42 U.S.C. § 6902(b)). Section 3006 of RCRA, 42 U.S.C. § 6926(b), allows the states to develop hazardous waste programs at least as stringent as RCRA, subject to authorization by the Administrator of the EPA. After receiving authorization, the state may implement its hazardous waste program “in lieu of the Federal program.” Id. “When a state program is authorized under RCRA, federal regulations are displaced or supplanted by state regulations.United States v. Richter, 796 F.3d 1173, 1183 (10th Cir. 2015).

         Consistent with RCRA's delegation of authority to the states, in 1985 the State of New Mexico received EPA authorization to implement its hazardous waste program in lieu of the federal program. The NMHWA requires the New Mexico Environmental Improvement Board to adopt rules for the management of hazardous waste and standards applicable to owners and operators of facilities that treat, store or dispose of hazardous waste. See N.M. Stat. Ann. § 74-4-4(A)(6). Intervenor NMED provides “hazardous waste permits” to owners or operators of hazardous waste facilities such as LANS and DOE to treat, dispose, and store waste. See N.M. Stat. Ann. 74-4-4.2. NMED also has enforcement capabilities against a person who violates the NMHWA or a condition of a permit issued under the NMHWA, and can issue compliance orders, civil penalties, or enjoin a permit violator. See Id. § 74-4-10(A)(1)-(2). Persons dissatisfied with decisions of the Secretary of the Environmental Department on any “final agency action” may appeal directly to the New Mexico Court of Appeals. See N.M. Stat. Ann. § 74-4-14 (“[a]ny person who is or may be affected by any final administrative action of the board or the secretary may appeal to the court of appeals for further relief within thirty days after the action.”).

         With regard to citizen suit enforcement, RCRA's “violation” provision allows any person to commence a lawsuit against any other person or entity “who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition or order which has become effective pursuant to [RCRA].” 42 U.S.C. § 6972(a)(1)(A). These types of lawsuits are known as “permitting violation claims.” Goldfarb v. Mayor & City Council of Baltimore, 791 F.3d 500, 504-05 (4th Cir. 2015). As relevant here, they may be brought “against a defendant who is alleged ‘to be [currently] in violation' of a RCRA-based mandate, regardless of any proof that its conduct has endangered the environment or human health. The permit, etc., subject to suit under subsection (a)(1)(A) can be either a state or federal standard that became effective pursuant to RCRA.” Id. at 504 (citing § 6972(a)(1)(A)). Citizen suits are meant “to supplement rather than supplant government action.” Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 60 (1987).

         In hearing citizen RCRA suits, district courts have statutory authority to grant various types of equitable relief necessary to address the violation or endangerment, as well as to impose civil penalties. 42 U.S.C. § 6972(a). District courts have discretionary power to impose on violators any appropriate civil penalties under 42 U.S.C. 6928(a) and (g), which provide for civil penalties of up to $25, 000 per day per violation. In imposing civil penalties, it is appropriate for the court to take into account the seriousness of the violation and any good faith efforts to comply. See 42 U.S.C. § 6928(a)(3). A district court's decision to impose an amount of penalties is discretionary. See United States v. Ekco Housewares, Inc., 62 F.3d 806, 814 (6th Cir. 1995) (“[t]he assessment of civil penalties is committed to the informed discretion of the court….”). Any civil penalty imposed on a violator must be paid to the United States Treasury and not to the plaintiff who instituted the suit. Gwaltney, 484 U.S. at 52.

         RCRA contains notice and delay requirements whereby a plaintiff must send an intent to sue letter and then wait 60 days before filing suit. See 42 U.S.C. § 6972(b)(1)(A). The RCRA notice requirement creates a condition precedent to the commencement of a citizen suit, and its purpose is to “strike a balance between encouraging citizen enforcement of environmental regulations and avoiding burdening the federal courts with excessive numbers of citizen suits.” Hallstrom v. Tillamook Cnty., 493 U.S. 30, 29 (1989). Statutory notice and delay provisions like the ones found in RCRA provide an alleged violator the opportunity to attempt compliance with its restrictions, thereby avoiding litigation based on the alleged violations. Id.

         Factual Background [1]

         The Laboratory designs and tests nuclear weapons, produces plutonium pits, researches and tests high explosives and material science, designs lasers, and engages in photographic processing. Compl., ¶ 27. As a result of these operations, the Laboratory and has “generated, ” “treated, ” “stored, ” “disposed of, ” and otherwise “handled” hazardous waste as defined by RCRA. Id. ¶ 34. The Laboratory is federally owned and is operated by DOE and a private contractor, LANS, under a hazardous waste permit issued to LANS and DOE by the Secretary of NMED. Id. ¶¶ 5, 6, 21.

         The Laboratory spans 23, 680 acres atop the Pajarito Plateau in Los Alamos County. Id. ¶ 28. Nineteen major surface drainages or canyons and their tributaries dissect the Pajarito Plateau. Id. The canyons run roughly west to east or southeast, and drain into the Rio Grande River, which flows along a portion of the Laboratory's eastern border. Id. ¶ 29. Four discrete hydrogeologic zones lay beneath the Pajarito Plateau's surface on which the Laboratory sits, one of which is a regional aquifer that supplies drinking water for the Laboratory and for surrounding communities, including the San Ildefonso Pueblo and Los Alamos County. Id. ¶¶ 30, 31.

         As stated above, DOE and LANS have engaged in the disposal, storage, treatment, and release of hazardous waste at the Laboratory within the meaning of RCRA. Id. ¶¶ 35-37. Certain areas at the Laboratory are divided into what are called Technical Areas or “TAs” where hazardous waste is administered. Id. ¶ 32. Material Disposal Areas or “MDAs” are hazardous waste storage areas. Id. ¶ 33. Since 1943, DOE and LANS (and their predecessors) have disposed of hazardous waste in septic systems, pits, surface impoundments, trenches, shafts, landfills, and waste piles at the Laboratory. Id. ¶ 35. As a result, DOE and LANS have discharged hazardous waste in industrial wastewater and other waste from outfalls into many of the canyon systems under the Laboratory. Id. Hazardous wastes that have been released into and detected in the groundwater beneath the Laboratory include explosives, such as RDX; volatile organic compounds such as trichloroethylene, dichloroethylene, and dichloroethane; metals such as molybdenum, manganese, beryllium, lead, cadmium, hexavalent chromium, and mercury; and perchlorate. Id. ¶ 39. Hazardous waste constituents have been detected beneath the Laboratory in all four groundwater zones. Id.

         Hazardous wastes have also been released into and detected in soils and sediments at the Laboratory. Id. ¶ 38. Such wastes include explosives, such as RDX, HMX, and trinitrotoluene (TNT); volatile organic compounds and semi-volatile organic compounds; metals such as arsenic, barium, beryllium, cadmium, hexavalent chromium, copper, lead, mercury, molybdenum, silver, and zinc; and polychlorinated biphenyls. Id.

         In May 2002 NMED determined that the presence of hazardous waste at the Laboratory presented an imminent and substantial endangerment to health or the environment, and ordered a series of corrective tasks at the Laboratory. Id. 40, 41; 2005 Consent Order, Doc. 51-1 at 9. This triggered nearly three years of litigation and settlement discussion between DOE, NMED, and the Regents of the University of California (LANS' predecessor). Compl. ¶ 39; 2005 Consent Order at 9-10. On March 2, 2005, NMED, DOE and the Regents of the University of California entered into compliance on consent order (“2005 Order”). Compl. 41. Its stated purpose was to determine the nature and extent of environmental contamination at the Laboratory, to identify and evaluate alternatives for cleanup of environmental contamination, and to implement cleanup. Id. NMED is statutorily authorized to enter into such consent orders whenever it determines that “any person has violated ... any requirement of the Hazardous Waste Act, any rule adopted and promulgated pursuant to that act or any condition of a permit issued pursuant to that act ….” N.M. Stat. Ann. 74-4-10. The 2005 Order's issuance was preceded by a 30-day period of public review and comment of the proposed order. See 2005 Consent Order at 10. Although the parties at various times gave the public notice of the 2005 Order when it was in its draft stage, see Id. at 9-10, there is no record evidence that the 2005 Order's issuance was preceded by a public hearing.

         The 2005 Order set forth 80 specific remedial tasks over a ten-year period for investigating and cleaning up environmental contamination at the Laboratory. Compl. ¶ 44; 2005 Consent Order at 23-37. Under the 2005 Order DOE and LANS could seek NMED's permission to extend deadlines to complete these tasks, but only on a showing of “good cause.” Compl. ¶ 45. Following this scheme, NMED extended numerous corrective task deadlines for good cause. However, in this lawsuit Plaintiff identifies 13 tasks whose deadlines NMED did not extend for good cause - including submission of numerous completion reports, investigation schedule reports, and groundwater monitor installation plans - thereby “leaving no factual doubt as to the existence of any of these violations.” Id. ¶¶ 45, 54-99. The latest deadline associated with a corrective task was December 6, 2015. 2005 Consent Order at 36. On that date, a remedy completion report for MDA G was due. Id. According to Plaintiff, December 6, 2015 represented a “final compliance date” for completion of all corrective action.[2] Compl. ¶ 105.

         The 2005 Order also laid out rules for its modification. See 2005 Consent Order at 16. Those rules essentially allowed the 2005 Order to be modified but, depending on the nature of the modification, required DOE and LANS to give public notice and provide the public an opportunity to comment. See Id. at 16, 21; NMAC (adopting 40 C.F.R. Part 270 (2017)). There are three classes of modification requests - Class 1, Class 2 and Class 3 - and each type has corresponding procedural requirements. As relevant here, if the requested modification is a Class 3 request, then it requires the most extensive procedures. An example of a Class 3 request is an “extension of a final compliance date” of the order's compliance schedule. See 40 C.F.R. § 270.42, App. I. Thus, if the DOE and NMED made a Class 3-type request to modify the 2005 Order, NMED was required to provide “an opportunity for a public hearing at which all interested persons shall be given a reasonable chance to submit data, views or arguments orally or in writing and to examine witnesses testifying at the hearing.” N.M. Stat. Ann. § 74-4-4.2(H). A public hearing is an adversarial proceeding held before a hearing officer. See NMAC.

         Regarding enforcement, the 2005 Order incorporated RCRA citizen suit enforcement provisions under § 6972(a)(1)(A). More specifically, the 2005 Order stated that “each requirement of this Consent Order is an enforceable ‘requirement' … of RCRA within the meaning of” § 6972(a)(1)(A) that allowed RCRA-style permitting violation claims to be brought against the parties if the were “alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition or order which has become effective pursuant to [RCRA].” 42 U.S.C. § 6972(a)(1)(A). See 2005 Consent Order at 20.

         Outside events eventually prompted NMED and DOE to reconsider aspects of the 2005 Order. In June 2011, the Las Conchas wildfire's dangerous encroachment near the Laboratory prompted NMED to request of DOE that it prioritize the removal of high risk, above ground transuranic waste located within TA-54 at the Laboratory. Framework Agreement, Doc. 51-6 at 2. DOE agreed, and in 2012 the parties entered into a non-binding agreement to realign waste management priorities called the “Framework Agreement: Realignment of Environmental Priorities.” Id. In the course negotiating that agreement, DOE stated that meeting the milestones of the 2005 Order was difficult because of past and anticipated funding shortfalls, and the parties agreed to renegotiate the 2005 Order at a future date. 2016 Consent Order, Doc. 47-3 at 10; see id., Doc. 51-5 at 9.

         Skipping forward to March 20, 2016, roughly four years after DOE and NMED signed the 2012 Framework, NMED posted on its website a draft consent order to “supersede” the 2005 Order and accepted public comments on the draft order on its website until May 31, 2016. Compl. ¶ 48. Plaintiff commented on the draft order, remarking among other things that under the 2005 Order's modification rules, NMED was required to hold a public hearing on the draft order so that members of the public could present testimony and cross-examine witnesses. Id. ¶ 49. NMED never did hold a public hearing though, and eventually it and DOE executed the draft order in June 2016. Id. ¶ 50. The new order (“2016 Order) expressly stated that it “supersede[d] the 2005 Compliance Order on Consent (2005 Consent Order) and settle[d] any outstanding alleged violations under the 2005 Consent Order, ” id. ¶ 51, and that it “encompasse[d] all scope included within the 2005 Consent Order, including that which has already been completed and that which has been identified subsequent to the effective date of the 2005 Consent Order.” 2016 Consent Order, Doc. 51-5 at 7. A central feature of Plaintiff's lawsuit is that by executing the 2016 Order Defendants unlawfully extended numerous final compliance dates contained in the 2005 Order, which amounted to Class 3 modifications for which Defendants never held a public hearing.

         The 2016 Order dispensed with the 2005 Order's waste clean-up schedule and replaced it with a new remediation process called a “campaign approach.” Id., Doc. 31-1 at 26. Under that approach, “corrective action activities required by this [the 2016 Order] [would] be organized into campaigns, generally based upon a risk-based approach to grouping, prioritizing, and accomplishing corrective action activities … [c]ampaigns, projects, tasks, and deliverables may be subject to two types of deadlines: milestones, which are enforceable; or targets, which are not enforceable.” Id. According to DOE, under the 2016 Order, the parties agree on enforceable “milestones” for the current fiscal year, and set unenforceable “targets” for the subsequent two years. DOE's Mot. to Dismiss at 6. There are 15 future campaigns under the 2016 Order, five of which are in progress. 2016 Consent Order, Doc. 47-3 at 53-56. According to Plaintiff, unlike the 2005 Order, the 2016 Order does not contain a schedule for completion of corrective tasks or a final deadline for completion of all corrective action. Compl. ¶ 52. It instead allows NMED and DOE to meet and negotiate remediation schedules for the next fiscal year, suggesting that it gives them leeway to delay corrective tasks, whereas the 2005 Order firmly held DOE's and LANS' feet to the fire. Id.

         Finally, Plaintiff claims that its executive director, Jay Coghlan, has a personal interest in the remediation of environmental contamination at the Laboratory. Id. ¶ 4. He is an avid hiker and rock climber and used to enjoy those activities in the surrounding canyons and cliffs, adjacent Bandelier National Monument and Sandia National Forests, and in the nearby town of White Rock, New Mexico. Id. However, Mr. Coghlan no longer rock climbs in a canyon downstream from the Laboratory because he believes that a variety of dangerous pollutants from the Laboratory's legacy waste are contained in the canyon's intermittent streambed. Id. Plaintiff contends that if the Court orders LANL to remediate legacy waste more quickly and on a definite schedule, Mr. Coghlan could again enjoy recreational use of the area without concern for his health. Id.

         Procedural Matters

         Frustrated by the remediation task delays under the 2005 Order, in January 2016 Plaintiff sent DOE and LANS a RCRA notice of intent to sue letter (“RCRA notice letter” or “RCRA notice”) for their failure to submit a remedy completion report for MDA-G due on December 6, 2015 under the 2005 Order's schedule. January 2016 RCRA Notice Letter, Doc. 51-2 at 3. Then Plaintiff sent a second RCRA notice letter on May 5, 2016 identifying 12 other remediation tasks that DOE and LANS allegedly violated. Seven days later, on May 12, 2016, Plaintiff filed this federal lawsuit alleging two RCRA claims against DOE and LANS for their failure to complete the 13 remediation tasks identified in the two RCRA notice letters, and sought declaratory and injunctive relief ordering them to do so.

         NMED intervened. Doc. 25. Then, in June 2016, DOE and NMED executed the 2016 Order, which stated that it superseded the 2005 Order that was the basis of Plaintiff's RCRA notice letters and its lawsuit.

         As a result of the intervening 2016 Order, Plaintiff sought to amend its complaint to challenge the new order's validity for allegedly failing to comply with modification rules requiring public involvement. On July 15, the parties filed a stipulated motion requesting new deadlines, giving Plaintiff until July 19, 2016 to file its amended complaint and Defendants until August 31, 2016 to answer, which the Court approved. Doc. 28. According to plan, on July 19 Plaintiff filed its First Amended Complaint, which re-alleged the content of its original complaint, plus sought a declaratory judgment that the 2016 Order was invalid. On August 31, 2016, Defendants responded by filing motions to dismiss under Rule 12(b). Then, 21-days later, Plaintiff (without leave of court or consent of the parties) filed a Second Amended Complaint, doubling the number of counts. Defendants renewed their 12(b) motions against the Second Amended Complaint.

         Counts I and II of Plaintiff s Second Amended Complaint are based on 13 violations of corrective tasks under the 2005 Order that DOE and LANS failed to complete. Plaintiff contends that they are jointly liable for an injunction ordering them to complete the unresolved corrective tasks and to pay $37, 500 in civil penalties for each day they have not complied with those deadlines. See Compl. ¶¶ 53-99. LANS and DOE allegedly failed to complete the following 13 corrective tasks under the 2005 Order:

• Submission to NMED of a Remedy Completion Report for MDA A at TA-21 due June 18, 2014. Id. ¶ 54.
• Submission to NMED of an Investigation Report for the Cañon de Valle Aggregate Area at TA-15 due July 2, 2014. Id. ¶ 57.
• Installation of Well R-65 and submission of an accompanying Well Completion Fact Sheet due by June 30, 2014 and a Well Completion Report due November 30, 2014. Id. ¶¶ 60-62.
• Submission to NMED of an Investigation Report for the Lower Pajarito Canyon Aggregate Area due July 31, 2014. Id. ¶ 65.
• Submission to NMED of an Investigation Report for the Twomile Canyon Aggregate Area due August 30, ...

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