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Nuclear Watch New Mexico v. United States Department of Energy

United States District Court, D. New Mexico

November 13, 2019

NUCLEAR WATCH NEW MEXICO, Plaintiff,
v.
UNITED STATES DEPARTMENT OF ENERGY and LOS ALAMOS NATIONAL SECURITY, LLC, Defendants, and NEW MEXICO ENVIRONMENT DEPARTMENT Intervenor.

          MEMORANDUM OPINION AND ORDER

         This 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).

         I. Introduction

         In this 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. 42.

         In a 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 Specifically, the Court held that a new consent order (2016 Order) superseded the 2005 Order on which Plaintiff's complaint was based.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 claims.

         Now, 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.

         II. General Statutory and Regulatory Overview

         Because 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).

         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). 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.

         III. Factual Background

         The 2005 Order

         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. 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.

         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. 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.

         Under 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.

         Following 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. Id.

         The 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 SWMU. Id.

         The 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. ¶ 8.

         The 2012 Framework Agreement

         Two 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.

         Second, 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.

         As a 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. ¶ 11.

         In 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.

         Because 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 Defendants that

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.

         NMED 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.

         The Bridge Contract between DOE and LANS

         At some 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 the ...


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