                          UNITED STATES DISTRICT COURT
                          FOR THE DISTRICT OF COLUMBIA

 EL PASO NATURAL GAS COMPANY,                       )
                                                    )
                        Plaintiff,                  )
                                                    )
 THE NAVAJO NATION,                                 )
                                                    )
                        Intervenor-Plaintiff,       )
                                                    )
 v.                                                 )    Civil Case No. 07-905 (RJL)
                                                    )
 UNITED STATES OF AMERICA, et al.,                  )
                                                    )
                        Defendants.                 )


                                MEMORA~M OPINION
                                (March   1!) 2012) [## 65, 74]
           PlaintiffEI Paso Natural Gas Company ("EPNG") and intervenor-plaintiff Navajo

Nation (the "Tribe") bring this suit against the United States and numerous other federal

defendants (collectively, "defendants") in connection with a former uranium mill located

on the Navajo Nation Reservation near Tuba City, Arizona. Currently before this Court

are the United States' Motion to Dismiss Plaintiffs' RCRA Claims [Dkt. #65] and the

Plaintiffs' Motion for Limited Jurisdictional Discovery [Dkt. #74]. For the following

reasons, the defendants' motion is GRANTED and the plaintiffs' motion is DENIED.

                                      BACKGROUND

      I.      Factual Background




                                                1
       This case's background has been largely set forth in previous opinions of this

Court, see EI Paso Natural Gas Co. v. United States, 774 F. Supp. 2d 40 (D.D.C. 2011)

("EPNG If'); EI Paso Natural Gas Co. v. United States, 605 F. Supp. 2d 224 (D.D.C.

2009) ("EPNG I"), and our Circuit Court, see EI Paso Natural Gas Co. v. United States,

632 F.3d 1272 (D.C. Cir. 2011). Accordingly, I will only set forth those facts directly

relevant to the current issue.

       From 1955 to 1968, the United States contracted with EPNG and its predecessor to

mine, mill, and process uranium and vanadium ore for use in the manufacture of nuclear

weapons. Intervenor Complaint ("Tribe CompI.") ~ 28 [Dkt. #41]. These contractors

processed the ore at a uranium processing mill (the "Mill") located on the Navajo Nation

Reservation near Tuba City, Arizona. See Tribe CompI.            ~~   4, 28. During its operation,

the Mill generated radioactive mill tailings-a type of radioactive waste. See Tribe

CompI. ~~ 4, 7. At issue here are two nearby sites that plaintiffs allege are similarly

contaminated with radioactive or hazardous wastes. Amended EPNG Complaint ("Am.

EPNG CompI.") ~~ 1, 7-8 [Dkt. #7]; Tribe Compi. ~~ 3,9-15.

       The first of these sites is the Tuba City Open Dump (the "Landfill"), which is

partially located on the Navajo Reservation. See Tribe Compi.            ~   13. Formerly operated

by the Bureau of Indian Affairs ("BIA"), the Landfill has not accepted new waste since

1997. Id. Since 1995, however, the BIA, under RCRA authority, has been investigating

the Landfill to assess the site's contamination. Id.   ~   14.

       On September 10, 2010, the BIA took a new tack in its efforts at the Landfill and

entered into a settlement agreement with the Environmental Protection Agency ("EPA")

                                             2
under the authority of the Comprehensive Environmental Response, Compensation, and

Liability Act ("CERCLA"). Def. Ex. 1, Admin. Settlement Agreement ("Admin.

Settlement") ~~ 1-2 [Dkt. #65-1].1 Specifically, the BIA and the EPA entered into an

Administrative Settlement Agreement and Order on Consent for Remedial

InvestigationlFeasibility Study ("Administrative Settlement"). Id.           ~   1. Per the terms of

the Administrative Settlement, the BIA will perform a "remedial investigation and

feasibility study" ("RIfFS") at the Landfill. Id. The RIIFS's objectives are: (1) "to

determine the nature and extent of contamination and any threat to the public health,

welfare, or the environment caused by the release or threatened release of hazardous

substances, pollutants or contaminants" and (2) to evaluate potential remedial responses

to that threat. Id.   ~   9.

       The second site is the Highway 160 Site, located across Highway 160 from the

Mill. Tribe Compl.        ~    9. Plaintiffs allege this site is contaminated with waste from the

Mill. Id. In February 2009, Congress appropriated $5 million for cleanup of radiological

contamination at the Highway 160 Site. Id.           ~   12; Energy & Water Development &

Related Agencies Appropriations Act, Pub. L. No. 111-8, 123 Stat. 601, 617-18 (2009);

PIs.' Ex. 6, Bloedel Decl. ~ 3 [Dkt. #73-9]. In an agreement with the Tribe, the

Department of Energy ("DOE") agreed to provide the Tribe with $4.5 million to

remediate the site, while the DOE retained $500,000 for oversight. Def. Ex. 2,

Agreement Amendment 021 at 2 [Dkt. #65-2]; Def. Ex. 3, Agreement Amendment 026



       The Administrative Settlement states that the parties entered into the agreement
under the authority of §§ 104, 107, and 122 ofCERCLA. Admin. Settlement ~~ 1-2.
                                                     3
[Dkt. #65-3]; Bloedel Deci.    ~   3. After a joint evaluation of the site's contamination, the

Tribe was to assume primary responsibility for remediating the Highway 160 Site

through an excavation process expected to take roughly two years. See Agreement

Amendment, Attach. A at 3-5,8-9. Further, as part of its agreement with the DOE, the

Tribe released the United States "of any liability or claim ... concerning such remedial

action." Agreement Amendment 026 at 2.

    II.      This Litigation

          EPNG initiated this case on May 15,2007, EPNG Compi. [Dkt. #1], and filed an

amended complaint on July 12,2007, EPNG Am. Compi. [Dkt. #7]. EPNG alleged

violations of the RCRA, the Uranium Mill Tailing Radiation Control Act ("UMTRCA"),

42 U.S.C. §§ 6901, et seq. (2006), and the Administrative Procedure Act ("APA"), 5

U.S.C. §§ 701, et seq. (2006). EPNG Am. Compi.          ~~   88-112. The defendants first

moved to dismiss EPNG's UMTRCA and APA claims for lack of subject matter

jurisdiction, and on March 31, 2009, this Court granted that motion. See EPNG J, 605 F.

Supp. 2d 224,225-27. 2 Then, on October 9,2009, the defendants filed an answer and a

counterclaim, asserting that this Court has jurisdiction over that claim under the RCRA

and 28 U.S.C. § 1345. See United States' Answer Am. Compi. & United States'

Countercl. ("Answer & Countercl.") 19 [Dkt. #37].

          On March 5, 2010, the Tribe filed an intervenor-complaint alleging ten separate

claims against the United States. Tribe Compi. ~~ 74-126. In addition to alleging the


2
          Our Circuit affinned that dismissal. See 632 F.3d at 1279.


                                                 4
same violations raised by EPNG's RCRA, APA, and UMTRCA claims, id. ,-r,-r 74-83,94-

108/ the Tribe also alleged a Clean Water Act claim, which the Tribe has since

conceded, and various other claims under federal and tribal law, id. ,-r,-r 84-93, 109-26. In

July 2010, the United States moved to dismiss all of the Tribe's non-RCRA claims; and

on March 27, 2011, this Court granted that motion. See generally EPNG 11, 774 F. Supp.

2d40.

        Defendants now contend, in their Motion to Dismiss Plaintiffs' RCRA Claims

[Dkt. #65], that recent events have removed this Court's subject matter jurisdiction over

the plaintiffs' remaining claims-the RCRA claims regarding the Landfill and the

Highway 160 Site. Defs.' Mot. 2. For the following reasons, I agree, and defendant's

Motion to Dismiss must, therefore, be GRANTED.

                                STANDARD OF REVIEW

        Federal courts "have only the power that is authorized by Article III of the

Constitution and the statutes enacted by Congress pursuant thereto." Bender v.

Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). Under Federal Rule of Civil

Procedure 12(b)( 1), "the plaintiff bears the burden of establishing the factual predicates

of jurisdiction by a preponderance of the evidence." Erby v. United States, 424 F. Supp.

2d 180, 182 (D.D.C. 2006). Hence, a court may dismiss a complaint for lack of subject

matter jurisdiction only if '''it appears beyond doubt that the plaintiff can prove no set of

facts in support of his claim which would entitle him to relief.'" Richardson v. United

3
       The Tribe joined EPNG in its unsuccessful appeal of this Court's March 31, 2009
decision dismissing the UMTRCA and APA claims. See Notice of Appeal [Dkt. #46].


                                              5
States, 193 F.3d 545,549 (D.C. Cir. 1999) (quoting Caribbean Broad. Sys., Ltd. v. Cable

& Wireless PLC, 148 F.3d 1080, 1086 (D.C. Cir. 1998)). While facts alleged in the

complaint must be accepted as true when reviewing a Rule 12(b)(I) motion to dismiss,

Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coord. Unit, 507 U.S. 163, 164

(1993), a court may consider material outside of the pleadings when determining whether

the court has jurisdiction to hear the case. See Venetian Casino Resort, L.L. C. v. EEOC,

409 F.3d 359,366 (D.C. Cir. 2005) (citing EEOC v. Sf. Francis Xavier Parochial Sch.,

117 F.3d 621,624 n. 3 (D.C. Cir. 1997)).

        Separately, under the principle of sovereign immunity, "the United States may not

be sued without its consent." United States v. Mitchell ("Mitchell II"), 463 U.S. 206, 212

(1983). Because this principle constitutes a jurisdictional prerequisite, id., "[a]bsent a

waiver ... the Federal Government and its agencies [are shielded] from suit," FDIC v.

Meyer, 510 U.S. 471, 475 (1994). Furthermore that waiver of sovereign immunity cannot

be implied. It must be unequivocally expressed. United States v. Mitchell ("Mitchell I"),

445 U.S. 535, 538 (1980) (quoting United States v. King, 395 U.S. 1,4 (1969)).

                                        ANALYSIS

   I.      CERCLA § 113(h) Removes Jurisdiction Over Plaintiffs' RCRA Claims
           Related to the Landfill.

        CERCLA grants the President, and by delegation, the EPA's Administrator, the

authority to clean up hazardous wastes. 42 U.S.C. § 9604(a)(1) (2006) (or "§ 104").

Specifically, "CERCLA § 104 ... authorizes EPA, whenever any hazardous substance is

released or is threatened to be released into the environment, to undertake two types of


                                              6
response actions: (l) to remove or arrange for the removal of the hazardous substance;

and (2) to provide for remedial actions relating to the release or 'substantial threat of

release' of the substance." Gen. Elec. Co. v. EPA, 360 F.3d 188, 189 (D.C. Cir. 2004)

(quoting 42 U.S.C. § 9604). This authority is limited, however, inter alia, in that the

EP A may not commence a CERCLA action in response to a "naturally occurring

substance." 42 U.S.C. § 9604(a)(3)(A); see also PIs.' Opp'n 7 [Dkt. #73].

       Importantly, CERCLA itself shields pending CERCLA response actions from

lawsuits that might otherwise interfere with the response's expeditious cleanup. New

Mexico v. Gen. Elec. Co., 467 F.3d 1223, 1249 (lOth Cir. 2006) (internal citations and

quotations omitted). Indeed, CERCLA achieves this through its timing of judicial review

provision, 42 U.S.C. § 9613(h) (or "§ 113(h)"), which is presently at issue here. Section

113 (h) states:

       No federal court shall have jurisdiction under Federal law ... to review any
       challenges to removal or remedial action selected under section 9604 of this title,
       in any action except one of the following [exceptions].4

§ 9613(h) (emphasis added). When interpreting this provision, courts have

overwhelmingly concluded that "once an activity has been classified as a CERCLA §

9604 removal or remedial action, § 96 13 (h) amounts to a blunt withdrawal of federal

jurisdiction," see e.g., Jach v. Am. Univ., 245 F. Supp. 2d 110, 114 (D.D.C. 2003)

(internal citations and quotations omitted), and that "litigation which interferes with even




4
       The five enumerated exceptions to 42 U.S.C. § 9613(h) are not at issue here.


                                              7
the most tangential aspects of a cleanup is prohibited." Oil, Chern. & Atomic Workers

Int'l Union, AFL-CIO v. Pena, 62 F. Supp. 2d 1, 10 (D.D.C. 1999).

        EPA and BIA's response actions at the Landfill here, conducted according to their

Administrative Settlement, easily qualify as a removal action under § 104 of CERCLA.

Specifically, BIA has committed to perform a "remedial investigation and feasibility

study" ("RIfFS") at the Landfill. See Administrative Settlement,-r 1. This RIfFS meets

the criteria for a CERCLA "removal" action because it requires the BIA and EPA to

investigate the release or threat of release of hazardous substances at the Landfill and

evaluate potential cleanup solutions. See Administrative Settlement,-r 9. 5

        But, in their RCRA claims, the plaintiffs have requested an injunction ordering

defendants to "perform cleanup activities" at the Landfill. EPNG Am. Compl. ,-r H;

Tribe Compi. ,-r I.3. Were this Court to grant that relief, the government's ongoing RIfFS

and remedial process would undoubtedly be obstructed: whether the requested injunction

would preempt a remedial decision, interrupt an ongoing remedial process, or even

second-guess a "no-action" decision. Therefore, the claims effectively constitute a

"challenge" under § 113(h) to the defendants' removal action and are presently barred by

that statute.

5
      CERCLA's definition of "removal" includes "actions as may be necessary to
monitor, assess, and evaluate the release or threat of release of hazardous substances." 42
U.S.C. § 9601(23). See also 42 U.S.C. § 9604(b)(l) (authorizing the President, where §
104 removal actions are authorized, to "undertake such investigations, monitoring,
surveys, testing, and other information gathering as he may deem necessary or
appropriate to identify the existence and extent of the release"); Razore v. Tulalip Tribes
o/Wash., 66 F.3d 236,238-39 (9th Cir. 1995) (holding a RIfFS was a removal action
under CERCLA); Jach, 245 F. Supp. 2d at 113-16 (holding § 113(h) barred claims where
government was developing a RIfFS).

                                             8
       Plaintiffs raise a number of arguments in response. In particular, plaintiffs argue

that (1) defendants lack an adequate basis to select a removal action under § 104 of

CERCLA; (2) § 113(h) is inapplicable to claims filed before the government initiates a

removal or remedial action; (3) the plaintiffs' RCRA claims do not challenge the

government's selected removal action; and (4) the completion of the government's

remedial action is too uncertain to trigger § 113(h). PIs.' Opp'n 19-41. Unfortunately for

plaintiffs, I disagree with all of their arguments.

       A. EPA has CERCLA authority to initiate a removal action at the Landfill.

       Although plaintiffs challenge the government's authority to initiate a CERCLA

action, they misstate the scope of that authority. See PIs.' Opp'n 19. Plaintiffs contend

that § 113 (h) requires a determination that a § 104 action relates to an actual release of a

hazardous substance or a harmful pollutant or contaminant. See id. Not so. CERCLA

authorizes an investigation and a response to either an actual or a threatened release of

hazardous substance. See 42 U.S.C. §§ 9601(23), -(24), -9604(a)(l).

       Undaunted, plaintiffs urge this Court to assume jurisdiction because certain factual

CERCLA issues are "inextricably intertwined" with factual issues raised by plaintiffs'

RCRA claims. PIs.' Opp'n 21-22. In addition they advocate allowing plaintiffs, either

simultaneously or alternatively, jurisdictional discovery. PIs.' Opp'n 21-22; see also

PIs.' Joint Mot. Limited Jurisdictional Discovery ~~ 4,8-10 [Dkt. #74]. Ultimately, they




                                               9
want the Court to treat defendants' motion as a summary-judgment motion. PIs.' Opp'n
      6
22.       I disagree.

          The path outlined by the plaintiffs is not only unnecessary, it is prohibited by law.

The EPA and BIA have already determined that the conditions at the Landfill "constitute

an actual and/or threatened 'release' of a hazardous substance ... as defined in Section

101(22) ofCERCLA, 42 U.S.C. § 9601(22)." Administrative Settlement ~ 20. Given

that the EPA and BIA have undertaken a removal action in response, this Court is

precluded from exercising jurisdiction under § 113(h) or allowing the plaintiffs to

proceed with discovery. See Raytheon Aircraft Co. v. United States, 435 F. Supp. 2d

1136, 1154 (D. Kan. 2006) (denying plaintiffs discovery request as "contrary to the

purpose behind" § 113(h)).7 Allowing the plaintiffs to proceed through the artifice of


6
      Plaintiffs contend that whether the Landfill "includes non-naturally occurring
hazardous wastes that may trigger CERCLA" is a disputed issue of material fact. Pis.'
Opp'n 20-21.
7
        Plaintiffs claim that the defendants have factually challenged the Court's
jurisdiction, and therefore the defendants must bear the burden to show that § 113(h)
applies. PIs.' Opp'n. 21-22. Further, plaintiffs seek jurisdictional discovery regarding
"whether the government has properly invoked CERCLA Section 104 ... and whether
Plaintiffs' RCRA citizen suit claims constitute a 'challenge' to the government's resort to
CERCLA." Joint Mot. Jurisdictional Discovery ~ 8. Plaintiffs cite to Phoenix
Consulting, Inc. v. Republic ofAngola, 216 F.3d 36, 40 (D.C. Cir. 2000), for support.
Plaintiffs' reasoning is faulty.
        In Phoenix Consulting, the Republic of Angola had appealed the court's denial of
its motion to dismiss based on the Foreign Sovereign Immunities Act (FSIA). 216 F.3d
at 38-40. In a FSIA case, the plaintiff alleges facts supporting one ofFSIA's statutory
exceptions to a foreign sovereign'S immunity. Id. at 39. If the defendant challenges the
"legal sufficiency" of those facts as supporting the exception, the court accepts those
allegations as true and resolves the dispute. Our Circuit recognized, however, that where,
as in Phoenix Consulting, the defendant disputes the underlying factual basis of
jurisdiction (i.e., the factual basis for a sovereign immunity exception-in Phoenix
                                                10
claiming that they are not challenging the removal action itself but the EPA's authority to

act under CERCLA at the Landfill would contradict the statute's express language

precluding "any challenges." See § 1l3(h). 8

       B. CERCLA § 113(h) is not limited to claims filed after the EPA selects a
          response.

       Second, plaintiffs raise, what appears to be, a novel issue in our Circuit: does §

1l3(h) bar claims filed before the EPA initiates a CERCLA response action. See PIs.'

Opp'n 23-32; see also Reply 16. Notwithstanding plaintiffs' arguments to the contrary,



Consulting, the defendant disputed that a contract allegedly waiving immunity was ever
signed), a different approach is necessary. In that situation, our Circuit held that a court
may not "deny the motion to dismiss merely by assuming the truth of the facts alleged by
the plaintiff and disputed by the defendant" but must go beyond the pleadings and resolve
any necessary factual disputes, through such procedures as limited discovery. Id.
        Here, the defendants, however, have not challenged the factual basis for the
court's jurisdiction. Instead, the defendants have asserted that a legal exception to the
court's jurisdiction applies under CERCLA § 113(h). Plaintiffs' claimed factual dispute
is simply a fiction. Plaintiffs do not dispute that that the BIA and EPA entered into the
Administrative Settlement at the Landfill. See PIs.' Opp'n 13. Rather, they only
challenge whether the government has correctly invoked CERCLA and whether
plaintiffs' claims constitute a challenge under § 1l3(h). See id. at l3-16, 19-23, 32-39.
        Most telling is that plaintiffs refrain from directly asserting that the Landfill does
not contain hazardous substances. See PIs.' Opp'n 19-23. Plaintiffs instead claim only
that whether the Landfill includes "non-naturally occurring hazardous wastes that may
trigger CERCLA presents a disputed issue." Id. at 20. Yet, plaintiffs' own allegations
claim the Landfill contains hazardous substances. See EPNG Am. Compl. § 105
(alleging defendants "have handled, disposed of, stored, treated or transported hazardous
waste ... [at] the Highway 160 Dump Site [and] the [Landfill]"); Tribe Compl. ,-r 76
(same); see also Defs.'Reply 3-4 [Dkt. #77] (collecting cites in complaints for same).
Even if this Court were not barred from allowing jurisdictional discovery as an
impermissible challenge under § 1l3(h), this Court would not grant plaintiffs discovery
to contradict their own allegations.
8
        To the extent plaintiffs suggest that the EPA did not adequately comply with the
notice and comment requirements in CERCLA 42 § 9622(i), see Pis.' Opp'n 20 n. 6,
plaintiffs have not properly raised those issues before this Court.

                                              11
neither the statute's language, congressional intent, nor its application alongside RCRA

support their contention that the earlier filed claims are reviewable. See Reply 15-19, 25-

32.

       First, a "plain language reading of § 113(h) demonstrates that the provision makes

no reference to the timing issues presented by Plaintiffs." River Village West LLC v.

Peoples Gas Light & Coke Co., 618 F. Supp. 2d 847,852 (N.D. Ill. 2008). Indeed, in

River Village, a district court rejected the very same argument advanced by the plaintiffs

here. That court noted that § 113(h) is specifically limited by five exceptions, "none of

which apply to citizen suits filed pursuant to RCRA or make exceptions based on the

chronology of the citizen suit[]." Id. Seeing no good basis to disagree, I will not read an

additional exception into the statute's text, especially since doing so would wrongly

imply a waiver of sovereign immunity. See Mitchell 1,445 U.S. at 538. Accordingly, §

113(h) removes jurisdiction over plaintiffs' claims at this juncture, irrespective of

plaintiffs' contention that this Court's subject matter jurisdiction "has been settled since

2007" and "cannot be divested simply because EPA decided in 2010 to enter into an

agreement." PIs.' Opp'n 25. 9

       Unfazed by the unlikelihood of their position, plaintiffs additionally claim that

Congress intended to bar only challenges filed after the government initiates a CERCLA

action. PIs.' Opp'n 25-27. Plaintiffs rely both on a House Report that references §

113(h)'s purpose as preventing "delays associated with a legal challenge of the particular

9
       It is axiomatic that jurisdiction must be maintained throughout an entire case. See
Lewis v. Cant 'I Bank Corp., 494 U.S. 472, 477 (1990).


                                             12
removal or remedial action selected" and on other decisions applying § 113(h). ld. at 25-

26 (quoting H.R. Rep. No. 99-253(V), at 25-26 (Nov. 12, 1985), 1986 U.S.C.C.A.N.

3124,3148). However, neither this report nor these cases reflect a congressional intent to

constrict § 113(h). They merely reinforce the (irrelevant) point that § 113(h) also bars

challenges filed after CERCLA actions are selected.

       Finally, plaintiffs' claim that applying § 113(h) to plaintiffs' claims undermines

the RCRA's own limitations provisions is, at best, incorrect. Specifically, plaintiffs claim

that applying the bar would undercut RCRA's notice and delay provisions, as well as its

limitations on citizen suits. to See PIs.' Opp'n 27-32. But, Congress, in enacting

CERCLA § 113(h) after RCRA was enacted, made no mention ofRCRA or its citizen-

suit provisions. Therefore, this Court can only conclude that Congress not only

contemplated RCRA when it enacted § 113(h), but also sought to withdraw jurisdiction

for RCRA claims, even where such claims were otherwise authorized under RCRA. See

River Village, 618 F. Supp. 2d at 852-53; see also Jach, 245 F. Supp. 2d at 114. The fact

that the RCRA claims in this case were made before the EPA initiated its CERCLA

response does not alter § 113(h)'s directive. Rather, defendants are correct that the terms

ofRCRA are "simply not a relevant inquiry" here. See Reply 18.


10
         RCRA requires citizens to provide government agencies and alleged RCRA
violators with notice and to delay beginning an action for a specified period after notice is
given. See 42 U.S.C. § 6972(b). Further, RCRA itself bars commencing a RCRA citizen
suit if the agency is "actually engaging in a removal action under section 104 of
[CERCLA]," 42 U.S.c. § 6972(b)(2)(B)(ii), and where a "responsible party is diligently
conducting a removal action, [RIIFS], or proceeding with a remedial action," 42 U.S.C. §
6972(b )(2)(B)(iv).


                                             13
       C. Plaintiffs' RCRA claims challenge the EPA's Administrative Settlement.

       As stated previously, § 1l3(h) bars suits, including claims under RCRA, that

interfere with ongoing CERCLA cleanup responses. Oil, Chern. & Atomic Workers Int'/

Union, AFL-CIO, 62 F. Supp. 2d at 10; Cannon v. Gates, 538 F.3d l328, l332-36 (10th

Cir. 2008); Jach, 245 F. Supp. 2d at 114-17. Plaintiffs' RCRA claims plainly meet this

standard and constitute a challenge under § 113(h). See EPNG Am. Compl. ,-r,-r 9-11

(requesting judgment declaring that defendants violated RCRA regulations and injunction

ordering defendants to "perform cleanup activities necessary to abate present and

imminent threats" caused by defendants' handling of solid or hazardous waste); Tribe

Compl. ,-r 1 ("[T]he only appropriate remedy for the [Landfill] is 'clean closure,' Le., the

excavation and out-of Indian-country, off-site disposal of the waste materials .... "); 36-

37 (requesting injunction requiring government to "perform clean-up activities

necessary" and grant "assistance to the Navajo Nation to carry out the activities necessary

to effect clean closure of the [Landfill],,).11 Yet, plaintiffs insist that their RCRA claims

do not "challenge" the CERCLA removal action. Instead, they argue, 12 in essence that:


11     Plaintiffs also request jurisdictional discovery related to whether plaintiffs'
"RCRA citizen suit claims constitute a 'challenge' to the government's resort to
CERCLA." Joint Mot. Jurisdictional Discovery,-r 8. Again, such discovery is prohibited
by § 1l3(h). See Raytheon Aircraft Co., 435 F. Supp. 2d at 1154.
12      The plaintiffs raise a third argument that need not be addressed here: their RCRA
claims address other properties besides the Landfill. See PIs.' Opp'n 32-33. Although
plaintiffs are correct that the RIIFS does not address the Highway 160 Site, the Mill Site,
or the "other Properties" referenced in the complaints, id., plaintiffs' complaints do not
actually allege any RCRA claims at the Mill, see EPNG Am. Compl. ,-r,-r 77-87; Tribe
Compl. ,-r,-r 74-83, and the plaintiffs' claims regarding the Highway 160 Site and the
"other Properties" will be addressed separately in this opinion.

                                             14
(1) the RCRA violations claims are not "necessarily incompatible" with the CERCLA

action and may proceed concurrently with the selected action, see PIs.' Opp'n 33-35, and

(2) the requested injunctive relief would not conflict with the RIfFS itself, see id. at 35-

39. 13 I disagree.

       First, plaintiffs argue that their claims alleging violations ofRCRA's

requirements 14 are compatible with the CERCLA action and not barred by § 113(h). See

PIs.' Opp'n 33-35; see also EPNG Am. Compl.        ~~   105-112, Prayer for Relief at F, G, I;

Tribe Compl. ~~ 76-83, Prayer for Relief at A.l, I. For authority, plaintiffs rely

exclusively on United States v. Colorado, 990 F.2d 1565 (lOth Cir. 1993). Their


13
        Plaintiffs also contend that the defendants are seeking to "re-style this litigation as
CERCLA litigation" contrary to defendants' prior stipulation that CERCLA
counterclaims need not be asserted in this litigation. See PIs.' Opp'n 34; Stip & Order 2
[Dkt. #36-1]. However, that stipulation, which predated the Administrative Settlement,
does not bear on whether the plaintiffs are challenging the current CERCLA action. To
find otherwise would allow responsible parties to file suit simply for the purpose of
forcing the government to bring a compulsory counterclaim and circumvent § 113(h)'s
bar. See Reply 20; Raytheon Aircraft Co. v. United States, 532 F. Supp. 2d 1316, 1321
(D. Kan. 2008).
       As to defendants' actual counterclaim, that claim is dependent on this Court's
award of relief under RCRA. See United States' First Am. Countercl. 7 [Dkt. #55];
United States' Opp'n PI.'s Mot. Dismiss 2 [Dkt. # 59] ("Federal Defendants' reciprocal
contingent counterclaim ensures that, should EPNG succeed on its RCRA Section
7002(a)(l)(B) claim, there is a vehicle for the Court to apportion cleanup responsibility
equitably .... "); Reply 20. Defendants concede that ifplaintiffs' RCRA claims are
dismissed, then this counterclaim should also be dismissed as moot. Id. Because that
counterclaim will be dismissed as moot, it may not support an exercise of supplemental
jurisdiction under 28 U.S.C. § 1367.
14
        The RCRA's citizen-suit provision, 42 U.S.C. § 6972, provides for, inter alia,
suits for violations of regulations or requirements under RCRA, see 42 U.S.C. §
6972(a)(l)(A), and for suits against any person for contributing to the handling or
disposal of solid or hazardous waste which may endanger health or the environment, see
42 U.S.C. § 6972(a)(l)(B).
                                              15
reliance on that case, however, is misguided. In Colorado, the Tenth Circuit allowed the

state of Colorado, based on a separate CERCLA provision with a specific exception for

states, to proceed with its RCRA suit seeking compliance with Colorado's own EPA-

authorized state regulations during a remediation. Id. at 1578-79. The Tribe, however,

is not a "state" as that term is defined under RCRA. See 42 U.S.C. § 6903(31);

Backcountry Against Dumps v. EPA, 100 F.3d 147,148 (D.C. Cir. 1996) (recognizing

that RCRA defines Native American tribes as municipalities and not states).

       Moreover, plaintiffs' pursuit of a declaratory judgment and civil penalties (paid to

the U.S. Treasury) for alleged RCRA-regulations violations would additionally interfere

with the RIIFS here. See Pis.' Opp 'n 35. 15 Defendants correctly point out that RCRA

Part 258 regulations, see id., apply only to solid-, not hazardous-, waste landfills and that

only immediate compliance would preclude additional civil penalties, see 40 C.F .R. §

258.l(b); Reply 14-15. Thus, a court order requiring compliance with these regulations

would interfere with the EPA's decisions under the RIIFS. See McClellan Ecological

Seepage Situation v. Perry, 47 F .3d 325, 329-30 (9th Cir. 1995).

       Second, as previously stated, the plaintiffs' claims would undoubtedly interfere

with the current CERCLA removal action because the Tribe has requested an injunction


15      Other courts have found that § 1l3(h) bars RCRA claims alleging RCRA
violations as well as requesting injunctive relief. See, e.g., Cannon, 538 F.3d at l331,
l335-36 (lOth Cir. 2008) (applying § 1l3(h) to bar suit based in part on RCRA violations
and requesting injunction to remediate property); McClellan Ecological Seepage
Situation v. Perry, 47 F.3d 325, 329-31 (9th Cir. 1995) (holding that plaintiffs requested
relief would interfere with CERCLA cleanup as it "for all practical purposes, seeks to
improve on the CERCLA cleanup"); Smith v. Potter, 208 F. Supp. 2d 415, 421-22
(S.D.N.Y.2002).

                                             16
for clean-up activities and indicated that a specific type of clean-up ("clean closure" or

"the excavation and out-ofIndian-country, off-site disposal of the waste materials ") is

necessary. See Tribe CompI. ~ 1, I; see also EPNG Am. CompI. ~ H. Plaintiffs even

acknowledge that they request an injunction for "cleanup activities necessary to abate ...

threats ... caused by Defendants' treatment, storage, disposal or management of solid,

hazardous or radioactive wastes." PIs.' Opp'n 36 (citing EPNG Am. CompI. ~ H).

Incredibly, they contend, however, that because this request is "stated in general terms,"

it could not interfere with EPA's ability to select an appropriate remedy. See id. 16

Clearly any such injunctive order by this Court would intrude upon the EPA's CERCLA

process even if the plaintiffs are unwilling to concede the same. See Cannon, 538 F.3d at

1335 (holding that RCRA claims seeking injunctive relief "would undoubtedly interfere

with the Government's ongoing removal efforts"). 17

       D. The Administrative Settlement triggers § 113(h).

       Plaintiffs also contend that the Administrative Settlement "is simply one among

16
        Plaintiffs' attempt to distinguish several of the cases cited by defendants is
unavailing. See PIs.' Opp'n 38-39. Although those cases involve more specific requests
for reliefthan those made here, none so limit the applicable reasoning. See Razore, 66
F.3d at 239-40; Alabama v. EPA, 871 F.2d 1548, 1559 (lith Cir. 1989); Jach, 245 F.
Supp. 2d at 115-16.
17
        In their argument to constrict § 113(h) to existing (as opposed to pre-existing)
challenges, plaintiffs concede that the bar applies to at least five types of challenges. See
PIs.' Opp'n 26-27. Defendants rightly point out that plaintiffs' claims squarely fit within
two of those same categories. See Reply 10-11. Specifically, plaintiffs' challenge to
EPA's authority to act under CERCLA would constitute a challenge to "site investigation
[methods]." See PIs.' Opp'n 26; see also Reply 10. Second, EPNG's attempt to avoid
liability for its waste disposal activities would constitute a challenge by a potentially
responsible party to its own liability. See id.; see also Reply 10-11.


                                             17
many vague proposals over many years to study the [Landfill]" and does not adequately

commit the defendants to the RIIFS to trigger the jurisdictional bar. Pis.' Opp'n 39-41.

For support plaintiffs rely on a Seventh Circuit decision, Frey v. EPA, 403 F.3d 828 (7th

Cir. 2005). That case held CERCLA does not bar a claim where the EPA could not point

to "some objective referent that commits it and other responsible parties to an action or

plan." Id. at 834. 18 Although not binding on this Court, that decision is distinguishable

and thus of no value to this Court. Stated simply, the Administrative Settlement

mandates that the BIA complete the RIIFS, including numerous specific tasks, within a

set timeframe or face stipulated penalties. See Administrative Settlement,-r,-r 5, 6, 9, II(t),

25,31,60; PIs.' Ex. 5, RIIFS Work Plan 112 [Dkt. ## 73-6, 7, 8]. Thus, the

Administrative Settlement more than adequately triggers § 113(h).

     II.      Plaintiffs' RCRA Claims Related to the Highway 160 Site Are Moot and
              EPNG Lacks Standing to Bring These Claims Without the Tribe.

           Because recent events have extinguished the controversy between the parties

regarding the Highway 160 Site, plaintiffs' claims relating to that site are moot and must

be dismissed. A federal court's jurisdiction is limited to "actual cases and controversies."

Utah v. Evans, 536 U.S. 452, 459 (2002) (citing U.S. Const. art. III, § 2, cl. 1). To satisfy

this requirement, a litigant must have suffered an actual injury that can be redressed by a

favorable decision. Iron Arrow Honor Soc y v. Heckler, 464 U.S. 67, 70 (1983). Thus,

18
       In Frey, the EPA had completed certain remedial actions at waste dumps but had
not begun other remediation steps at the sites. 403 F.3d at 832, 834. Though the court
recognized that environmental cleanups may be accomplished best in phases, the court
found that a consent decree directing the EPA to negotiate future solutions
"approximately one year following the completion of source control activities" did not
suffice as an objective indicator. Id. at 834-35.
                                               18
"even where litigation poses a live controversy when filed, the [mootness] doctrine

requires a federal court to refrain from deciding it if 'events have so transpired that the

decision will neither presently affect the parties' rights nor have a more-than-speculative

chance of affecting them in the future.'" Columbian Rope Co. v. West, 142 F.3d 1313,

1316 (D.C. Cir. 1998) (quoting Clarke v. United States, 915 F.2d 699,701 (D.C. Cir.

1990)).

       Since plaintiffs' claims were originally filed, Congress has appropriated $5 million

for the Highway 160 Site's remediation. See Bloedel Decl. ~ 3. Further, the Tribe, in

agreements with the DOE, assumed responsibility for remediating the site and released

the United States from "any liability or claim ... concerning such remedial action."

Agreement Amendment 026 at 2 (executing waiver in accordance with 42 U.S.C. §

7915). Plaintiffs contend that these events cannot moot their claims because these funds

may be insufficient to fully address all potential issues at the site. PIs.' Opp'n 42-43.

Plaintiffs also argue that the waiver releases the United States only from "liability arising

from the performance of the remediation work." Id. at 43. I disagree with each

argument.

       First, the agreement here includes a broad statement of purpose: "to complete

remediation of the Highway 160 Site." Agreement Amendment 026, Attach. A at 1.

Further, the waiver contains two separate clauses. The first releases the United States "of

any liability or claim ... concerning such remedial action." Agreement Amendment 026

at 2. The second releases the United States from "any claim arising out of the

performance of any such remedial action." Id. Manifestly, the waiver's two clauses are

                                              19
meant to accomplish separate tasks. While plaintiffs may be "technically" correct that

the waiver's second clause relates only to actual remediation-performance, the first clause

is much broader and surely encompasses the full remediation of the Highway 160 Site.

And, to the extent the Tribe claims that additional funds may be necessary to complete

the current remediation project or any additional, desired projects at the site, see Pis.'

Opp'n 42-43, those claims would also be covered by the waiver. Accordingly, as the

Tribe has agreed on a remediation plan and released the United States from liability

related to the Highway 160 site, there is no longer a live controversy between the parties

to support jurisdiction. 19

       Given that the Tribe's Highway 160 Site claims are moot, EPNG's claims must

also be dismissed as EPNG cannot maintain constitutional standing separate from the

Tribe. See also EPNG's Mem. Opp. Mot. Dismiss or Transfer 2 [Dkt. #11] (noting that

had DOE remediated the sites under UMTRCA, this would "obviate the need for any

ruling on EPNG's ... claims under the [RCRA]"). The constitutional standing

requirement also derives from Article Ill's case or controversy limitation, Allen v.

Wright, 468 U.s. 737, 750 (1984), and demands three elements: injury-in-fact,

traceability, and redressability, Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61

(1992). Defendants argue that EPNG lacks standing primarily because it cannot show an

injury-in-fact. Defs.' Mot. 26-27. Defendants are correct that EPNG is "neither the

present owner of the sites at issue, nor a nearby resident, business owner, or [sic]

19
       Because I find that plaintiffs' claims related to the Highway 160 Site are moot, I
do not need to address the defendants' argument based on the primary jurisdiction
doctrine at this time. See Defs.' Mot. 24-26.
                                              20
concerned citizen alleging that he or she suffers physical or aesthetic harm from

contamination." Id. at 26.

       EPNG raises essentially two arguments in response: (1) that the BIA's

counterclaim supports standing and (2) that the threat of liability at the site supports

standing. PIs.' Opp'n 45. But, because defendants have conceded that their counterclaim

should be denied as moot upon dismissal of plaintiffs' claims, see supra note 13, the

counterclaim will not support standing. And, any risk of liability here is far too remote to

constitute an actual or imminent injury-in-fact. EPNG has not pointed to a single lawsuit,

aside from one case related to the Mill that settled in 2000, see Defs.' Mot. 26-27, to

support a conclusion that EPNG has or will suffer a concrete injury. See EPNG Am.

Compl. ~ 76; PIs.' Opp'n 45. 20 Therefore, plaintiffs' Highway 160 Site claims must also

be dismissed.




20
       In their opposition, plaintiffs note that the defendants' motion does not address
certain "other Properties" alleged by plaintiffs to be contaminated. See PIs.' Opp'n 32-
33; see also EPNG Am. Compl. ~ 1, G; Tribe Compo ~ 76. Indeed, defendants only
addressed these claims in their reply brief in support of their motion. See Reply 24-25.
However, I agree with the defendants that plaintiffs have failed to sufficiently identify
these "other Properties" to meet the pleading standards of Federal Rule of Civil
Procedure 8(a). See id. Accordingly, plaintiffs' RCRA claims related to the "other
Properties" will be dismissed without prejudice.
                                             21
                                    CONCLUSION

      For the foregoing reasons, the Court GRANTS the United States' Motion to

Dismiss Plaintiffs' RCRA Claims [Dkt. # 65] and DENIES the Plaintiffs' Motion for

Limited Jurisdictional Discovery [Dkt. # 74]. An order consistent with this decision

accompanies this Memorandum Opinion.



                                                ~
                                                United States District Judge




                                           22
