United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
matter is before the Court on the following five motions: (i)
Intervenor New Mexico Environment Department's Motion for
Summary Judgment on Counts I and II of Plaintiff's Second
Amended Complaint (ECF No. 91); (ii) Plaintiff Nuclear Watch
New Mexico's “Motion for Partial Summary Judgment
against the United States Department of Energy (ECF No. 92);
(iii) The United States Department of Energy's Opposed
Motion for Summary Judgment (ECF No. 101); (iv)
Plaintiff's Motion for Partial Summary Judgment against
Los Alamos National Security, LLC (ECF No. 94); and (v)
Defendant Los Alamos National Security, LLC's Motion for
Summary Judgment (ECF No. 96).
Resource Conservation and Recovery Act, 42 U.S.C. §
6901, et seq., (RCRA) citizen lawsuit, Plaintiff
contends that the United States Department of Energy (DOE)
and Los Alamos National Security, LLC, (LANS) a private
contractor, are jointly liable for unresolved corrective
tasks under a 2005 consent order (2005 Order) governing
legacy hazardous waste clean-up at Los Alamos National
Laboratory. See Pl.'s Second Am. Compl., ECF No.
previous Memorandum Opinion and Order, the Court granted in
part the Defendants' and Intervenor's Fed.R.Civ.P.
12(b) motions and dismissed as moot Plaintiff's claims
for injunctive and declaratory relief. Specifically, the
Court held that a new consent order (2016 Order) superseded
the 2005 Order on which Plaintiff's complaint was based.
But the Court also held that the issuance of the 2016 Order
did not automatically moot Plaintiff's civil penalty
Defendants and NMED have moved for summary judgment, renewing
their argument that Plaintiff's civil penalty claims are
moot. Plaintiff has cross-moved for summary judgment against
the Defendants, maintaining that they are liabile for RCRA
violations and civil fines. After carefully considering the
motions, briefs, evidence, relevant law, and being otherwise
fully-informed, the Court GRANTS LANS's
motion for summary judgment, but DENIES all
other parties' motions.
General Statutory and Regulatory Overview
this case concerns the Defendants' alleged compliance
with a RCRA-based mandate, it makes sense to briefly review
the RCRA and corresponding laws of the New Mexico Hazardous
Waste Act, N.M. Stat. Ann. §§ 74-4-1 - 74-4-14
(NMHWA). The RCRA governs the treatment, storage, and
disposal of solid and hazardous waste. See Chicago v.
Envtl. Def. Fund, 511 U.S. 328, 331-32 (1994). 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
Environmental Protection Agency. 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.
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).
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).
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).
See Davis v. Sun Oil Co., 148 F.3d 606, 611 (6th
Cir. 1998) (“civil penalties payable to the United
States may be awarded in a citizen suit brought under §
6972(a).”); Chico Serv. Station, Inc. v. Sol Puerto
Rico Ltd., 633 F.3d 20, 28 (1st Cir. 2011) (“[i]n
hearing suits under [§ 6972(a)], district courts have
statutory authority to … impose civil
penalties.”); Clorox Co. v. Chromium Corp.,
158 F.R.D. 120, 128 (N.D. Ill. 1994); City of Evanston v.
N. Illinois Gas Co., 229 F.Supp.3d 714, 725 (N.D. Ill.
2017) (“a plaintiff suing under § 6972(a)(1)(A)
can allege a violation of any ‘permit, standard,
regulation, condition, requirement, prohibition, or
order' effective pursuant to subchapter III, in which
case § 6972(a) would allow the plaintiff to seek civil
penalties under § 6928(a) or (g).”). Any civil
penalty imposed on a violator must be paid to the United
States Treasury and not to the plaintiff who instituted the
suit. See Gwaltney, 484 U.S. at 52.
Laboratory designs and tests nuclear weapons, produces
plutonium pits, researches and tests high explosives and
material science, designs lasers, and engages in photographic
processing. Pl.'s Second Am. Compl., ¶ 27, ECF No.
42. 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. 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.
¶¶ 34-35. 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. ¶ 35.
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. 2005 Consent
Order, ECF No. 51-1 at 9. This culminated with NMED, DOE, and
the Regents of the University of California (LANS's
predecessor) entering into the 2005 Order in March 2005. The
2005 Order was modified twice, on June 18, 2008, and on
October 29, 2012, to make agreed-upon changes to completion
dates and other revisions. DOE's MSJ, Undisputed Fact
(“DOE's UF”) ¶ 1. In 2006, LANS got the
contract to manage, operate, and remediate legacy waste at
the Laboratory. LANS's MSJ, Undisputed Fact
(“LANS's UF”) ¶ 1. LANS was formed for
the sole purpose of managing and operating the Laboratory and
has no other business activity. LANS's UF ¶ 3.
the 2005 Order, the process of performing corrective actions
for hazardous waste clean-up typically involved a series of
progressive steps. Rhodes Decl. ¶ 5, ECF No. 101-2.
Investigators assessing a site known or believed to contain
hazardous waste would gather information about the site in
what was called a RCRA Facility Investigation (RFI).
Id. The RFI included preparation of an
“Investigation Work Plan” (IWP), which was a
detailed plan that the facility owner/operator develops and
follows throughout the RFI. Id.
the submission of an IWP, the results of investigations were
reported in RFI reports or “Investigation
Reports.” Id. Investigation Reports identified
the corrective action activities for areas that were the
subject of the RFI and indicated whether performance of a
Corrective Measure Evaluation was necessary. Id. If
corrective measures were necessary, those measures were
documented in a Remedy Completion Report (RCR). Id.
The 2005 Order reflected this typical approach to the
corrective actions process, mandating a progressive series of
actions to be performed and documents to be submitted.
2005 Order required investigation efforts of individual
Technical Areas (TAs), which are administrative areas
established to encompass operations at the Laboratory.
Id. ¶ 6. To assist in organizing the effort,
DOE would submit a list of “Aggregate Areas, ”
which means an area in a single watershed or canyon in which
one or more Solid Waste Management Units (SWMUs) and Areas of
Concern (AOCs) are located. Id. An SWMU generally
means a place where solid waste has been placed at any time
and there may be a risk of release of hazardous waste or
haste waste constituents. Id. Areas of Concern refer
to a place having a known or suspected release of hazardous
waste or hazardous waste constituents not traceable to an
2005 Order established a strict schedule for completing
specific corrective action tasks for the investigation and
clean-up of environmental contamination at the Laboratory.
Id. ¶ 8. The 2005 Order also contained
provisions governing how DOE and LANS could request a time
extension from NMED to comply with corrective action.
Id. Specifically, the Defendants would have to show
good-cause for an extension request in a letter to NMED.
Id. NMED then had ten days to respond; if NMED did
not respond in that period, then the request was
automatically granted. Id. The schedule of
“deliverables” under the 2005 Order specifically
set an overall initial completion date of December 6, 2015
for all elements of the 2005 Order. DOE's UF ¶ 2.
But this date did not contemplate or account for extension
deadlines in the manner just described. Rhodes Decl. ¶
2012 Framework Agreement
relevant events occurred in 2011. First, Congress, which
appropriates legacy waste clean-up remediation funds each
year, stated in a report accompanying energy and water
development funding for fiscal year 2012 that DOE
“ha[d] yet to develop a comprehensive plan for cleanup
of legacy waste at Los Alamos National Laboratory, ”
and cut funding from 2011 fiscal year levels. H.R. Rep.
No.112-118, at 146; Swavely Decl. ¶ 7, ECF No. 117-2.
The report explained that “the total cost of cleanup
remains uncertain, particularly for soil and ground water
remediation. The Department [of Energy] should focus on site
planning to develop more detailed disposition and restoration
strategies before significantly ramping up its cleanup
activities there.” H.R. Rep. No.112-118.
as a result of the Las Conchas wildfire in 2011, former New
Mexico Governor Susana Martinez requested that DOE change
some priorities under the 2005 Order. DOE agreed to this
request and, in 2012, NMED and DOE entered into a non-binding
Framework Agreement that realigned priorities. DOE's UF
¶ 3. NMED and DOE agreed to prioritize removing 3706
cubic meters of above-ground transuranic waste at Technical
Area or TA-54, and to focus Laboratory remediation on
accelerating the off-site shipment and disposition of this
material at the earliest feasible time. LANS's UF ¶
16. This became known as the “3706 Campaign.”
Erickson Decl., ECF No. 98 ¶ 5.
result, over the next several years DOE diverted significant
resources from the 2005 Order to removing the transuranic
waste. LANS's UF ¶ 17. During this period, NMED
approved extensions for the 2005 Orders deadlines because the
available funding for corrective actions was needed to
perform the removal of the non-cemented above-ground legacy
waste, which was the highest priority. Rhodes Decl. ¶
February 2014, a radiological release of radioactive material
occurred at DOE's Waste Isolation Pilot Plant, a salt bed
located beneath the earth's surface in southeastern New
Mexico. Id. ¶ 12. The cause of the release was
a waste drum from the Laboratory. Id. All waste
processing and shipment at the Laboratory stopped, and DOE
was unable to meet the completion dates for the Framework
Agreement's milestones. Id.
the WIPP incident impaired DOE's inability to conclude
the Framework Agreement on time, NMED began denying DOE's
request for extensions of the 2005 Order's deadlines.
Id. In 2014, for example, NMED denied further
deadline extensions for Defendants to complete investigation
reports at three Aggregate Areas identified in
Plaintiff's Second Amended Complaint and to install Well
R-65. See ECF Nos. 108-12, 108-19, 108-24, 108-27,
108-29; see also Pl.'s Resp. Br., ECF
No. 119 at 25. In letters to Defendants explaining why it was
denying their deadline extension requests, NMED told
NMED has granted extensions based on the [Defendants']
need to divert resources to remove transuranic waste in
accordance with the Framework Agreement. Based on the
[Defendants'] statement that they will not be able to
meet the deadlines that they committed to in the Framework
Agreement, the [deadline extension] request is hereby denied.
sent March or April 2015 letters to Defendants in which NMED
“formally declared its intent to assess stipulated
penalties” under the 2005 Order for Defendants'
failure to file investigation reports for four canyon
Aggregate Areas - Cañon de Valle, Upper Water Canyon,
Starmer/Upper Pajarito, and Chaquehui Canyon. See
ECF Nos. 108-30, 108-34, 108-38, 108-48.
Bridge Contract between DOE and LANS
point, DOE decided to hire a new legacy waste clean-up
contractor. Erickson Decl. ¶ 13, ECF No. 98. Because the
process of hiring a new contractor was anticipated to take
one to two years, DOE and LANS entered into the “Bridge
Contract” in September 2015. Id.; LANS's
UF ¶ 18. That contract outlined legacy waste clean-up
activities to be performed until a successor remediation
contractor could be hired. Id. The contract defined
LANS's remediation responsibilities “to the extent