                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA

                                             )
ANACOSTIA RIVERKEEPER, et al.,               )
                                             )
                                             )
                Plaintiffs,                  )
                                             )
        v.                                   )      Civil Action No. 11-1453 (RMC)
                                             )
WASHINGTON GAS LIGHT                         )
COMPANY,                                     )
                                             )
                                             )
                Defendant.                   )
                                             )


                                           OPINION

                Plaintiffs Anacostia Riverkeeper and Anacostia Watershed Society bring a citizen

suit under the Resource Conservation and Recovery Act to abate the endangerment to the

environment caused by the Washington Gas Light Company’s former gas manufacturing plant at

a site adjacent to the Anacostia River in Southeast, Washington, D.C. Because the United States

has already selected and is implementing removal and remedial actions at the same site under the

Comprehensive Environmental Response, Compensation, and Liability Act, Plaintiffs’

Complaint is barred by CERCLA’s “timing of review” provision. Washington Gas’ motion to

dismiss will be granted, and the Complaint will be dismissed for lack of subject matter

jurisdiction.

                                           I. FACTS

                The Complaint addresses recognized contamination to land and sediments in and

around the Anacostia River and alleges the following facts. The Anacostia River is

approximately 8.5 miles long and flows through the District of Columbia before it enters the
Potomac River. The Anacostia Watershed is home to approximately 800,000 urban residents.

The East Station Site, where Washington Gas manufactured gas for nearly a century, consists of

18.8 acres of land located in the lower area of the watershed. Washington Gas owns

approximately 11.4 acres of the East Station Site. Prior to 2008, the United States owned

roughly 4.5 of the remaining acres, of which all but .35 acres were managed by the National Park

Service (“NPS”). This area, except for the .35 acres, is referred to by the parties and this Court

as the “NPS Site.” In 2008, ownership of the NPS Site was transferred to the District of

Columbia. The .35- acre portion of the property is held by the United States and managed by

the U.S. Army Corps of Engineers; the Army Corps uses this small section as a station for debris

collection boats that patrol the Anacostia and Potomac Rivers.

               Washington Gas owned and operated a gas manufacturing plant on the East

Station Site. The plant was closed in 1983 and demolished by 1988. As a result of the gas

manufacturing and disposal practices at the Site, Washington Gas had contaminated the Site’s

“surface soil, subsurface soil, groundwater, and the water and sediment in the Anacostia River.”

Compl. [Dkt. 1] ¶ 53. In 1999, the Environmental Protection Agency (“EPA”) issued a Record

of Decision (the “EPA ROD”) for the East Station Site under the Comprehensive Environmental

Response, Compensation, and Liability Act of 1980, 42 U.S.C. §§ 9601, et seq. (“CERCLA”).

The EPA ROD noted that the East Station Site “was the subject of six major environmental

investigations” which “characterized the land and river contamination, assessed the human-

health and ecological risks, and evaluated the remedial alternatives.” Id. ¶¶ 61-62. The EPA

ROD determined that “several human exposure scenarios . . . exceeded threshold risk levels,

requiring elimination or management of the contamination.” Id. ¶ 64. The EPA ROD found

danger in the risk of exposure to surface soil at the NPS Site, subsurface soil across the East



                                                 2
Station Site, and contamination of the Anacostia River and its sediment due to chemicals found

at the NPS Site. The EPA ROD concluded that if the release of hazardous substances into the

environment were not addressed by implementing the remedies selected in the EPA ROD, it

could pose a threat to public health or the environment. Id. ¶ 68. The EPA ROD “set out a

selected remedy for the entire East Station Site but indicated that a separate record of decision

would be issued for the NPS Site.” Id. ¶ 71.

                NPS issued a ROD for the NPS Site in August 2006 (the “NPS ROD”) that

selected a response action for that site, but, according to the Complaint, deferred identifying any

response action for the contaminated sediment in the Anacostia River. See Mot. to Dismiss, Ex.

A [Dkt. 8-2] (NPS ROD). It is the NPS Site and this contaminated river sediment that are at the

heart of Plaintiffs’ complaint.

                The parties agree on the following facts. The NPS ROD contained four response

actions for the NPS Site: a groundwater remedy, a DNAPL 1 remedy, a surface soil remedy, and

a subsurface soil remedy. The groundwater and DNAPL remedies, which included pumping and

treating the groundwater at the Site and capture of DNAPL in all groundwater extraction wells,

were the same as those selected in the EPA ROD. Washington Gas is continuing to implement

these remedies across the entire East Station Site. The NPS ROD also required two additional

soil remedies: (a) removal of contaminated surface soil to the a depth of one foot; and (b)

removal of subsurface soil contaminated with tar down to clean fill or to a maximum depth of

three feet. NPS ROD at 2. Finally, the NPS ROD required “participation by Washington Gas in

a watershed-wide study of sediment quality.” Id. It stated that this study would be led by EPA

and required that it be partially funded by Washington Gas. The “study is intended to lead to


1
    DNAPL is tar or “Dense Nonaqueous Phase Liquid.”


                                                 3
recommendations for a comprehensive and coordinated remedial plan for the watershed in which

Washington Gas will participate.” Id. The NPS ROD also stated that the “NPS will evaluate

actions to reduce any sediment contamination . . . . This may lead to the implementation of

remedial action to mitigate existing contamination in river sediments.” Id. at 62.

               The parties dispute whether the NPS ROD selected a response action for

contaminated sediment in the Anacostia River. Defendant asserts that the sediment remedy

consists of “further study of the sediments and participation in a regional study.” Reply [Dkt.

11] at 11. While Plaintiffs concede that such studies do count as response actions under

CERCLA, they argue that any sediment study at the NPS Site has already been completed or

should be deemed completed because of the passage of time.

               CERCLA authorizes NPS to implement the NPS ROD either by issuing a

unilateral administrative order or by entering into a consent decree with Washington Gas. 42

U.S.C. §§ 9606(a), 9622(d). To date, no such order or consent decree has been entered.

               Before this Court is a related case titled United States v. Washington Gas Light

Company, No. 11-2199 (RMC), filed on December 12, 2011, in which the United States

proposes a consent decree that would cover the entire East Station Site: the two terrestrial

parcels, the groundwater under both parcels, and the sediments and water of the Anacostia River

where hazardous substances from the Washington Gas Property are located. One terrestrial

parcel is the approximately 11.4 acres owned by Washington Gas; the second terrestrial parcel is

the 4.2-acre plot now owned by the District (except for the .35-acre area retained by the United

States). The United States lodged its proposed consent decree on December 13, 2011.

Washington Gas Light Co., No. 11-2199, Notice of Proposed Consent Decree [Dkt. 3]. After




                                                 4
required publication, receipt of comments, and consideration of comments, 2 the United States

filed its unopposed motion for entry of final judgment consent decree on August 29, 2012. See

id., Mot. for Entry of Final J. [Dkt. 11]. The Plaintiffs in this case filed a motion to intervene in

Case No. 11-2199, but withdrew their motion on September 18, 2012. Unlike this suit, which is

limited to the NPS Site, the proposed final consent decree covers the entire area. It provides for

implementing the soil and subsoil remedies and a Remedial Investigation/Feasibility Study

(“RI/FS”) for “groundwater, surface water, and the sediments of the Anacostia River.” Id.

               Due to the delay in actual implementation of response actions at the NPS Site, 3

Plaintiffs ask the Court to enter judgment declaring that Washington Gas “has contributed and/or

is contributing to the past and/or present handling, storage, treatment, transportation, and/or

disposal of solid or hazardous waste containing coal tar and other contaminants that presents or

may present an imminent and substantial endangerment to human health or the environment, in

violation of . . . § 7002(a)(1)(B)” of the Resource Conservation and Recovery Act, 42 U.S.C.

§§ 6901 et. seq., (RCRA) and order Washington Gas to take all measures to eliminate the

endangerment. Compl. at 15 (Relief Requested). Section 7002(a)(1)(B) of RCRA allows suit

against “any person . . . who has contributed or who is contributing to the past or present

handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which

may present an imminent and substantial endangerment to health or the environment.” 42 U.S.C.

§ 6972(a)(1)(B). These actions are known as endangerment suits.



2
  The notice and comment period yielded two sets of comments, one from the Plaintiffs in this
case and one from the Historic Anacostia Boating Association.
3
  The United States explains that the delay in filing the Final Consent Decree was caused by the
unusually complex nature of the negotiations because of the number of agencies (federal and
state) and because the soil remedy and the RI/FS required by the consent decree involve
complicated technical issues.

                                                  5
               Washington Gas moves to dismiss the Complaint, arguing that the Court lacks

subject matter jurisdiction over Plaintiffs’ claims because the United States already is engaged in

a CERCLA response action at the NPS Site and therefore CERCLA’s “timing of review”

provision bars Plaintiffs’ Complaint.

                                     II. LEGAL STANDARD

               Pursuant to Federal Rule of Civil Procedure 12(b)(1), a defendant may move to

dismiss a complaint, or any portion thereof, for lack of subject matter jurisdiction. Fed. R. Civ.

P. 12(b)(1). When reviewing a motion to dismiss for lack of jurisdiction under Rule 12(b)(1), a

court must review the complaint liberally, granting the plaintiff the benefit of all inferences that

can be derived from the facts alleged. Barr v. Clinton, 370 F. 3d 1196, 1199 (D.C. Cir. 2004).

Nevertheless, “the court need not accept factual inferences drawn by plaintiffs if those inferences

are not supported by facts alleged in the complaint, nor must the Court accept plaintiff’s legal

conclusions.” Speelman v. United States, 461 F. Supp. 2d 71, 73 (D.D.C. 2006).

               To determine whether it has jurisdiction over the claim, a court may consider

materials outside the pleadings. Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1107 (D.C. Cir.

2005). No action of the parties can confer subject matter jurisdiction on a federal court because

subject matter jurisdiction is an Article III and a statutory requirement. Akinseye v. Dist. of

Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003). The party claiming subject matter jurisdiction

bears the burden of demonstrating that such jurisdiction exists. Khadr v. United States, 529 F.3d

1112, 1115 (D.C. Cir. 2008); see Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375,

377 (1994) (noting that federal courts are courts of limited jurisdiction and “[i]t is to be

presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the

contrary rests upon the party asserting jurisdiction.”) (internal citations omitted).



                                                  6
                                            III. ANALYSIS

                  Section 104(a) of CERCLA authorizes the President, and, by delegation, specific

federal agencies including the Department of the Interior (of which NPS is a part), to undertake

removal and remedial actions when a hazardous substance is released into the environment. 42

U.S.C. § 9604(a) 4. CERCLA defines such response actions as:

                  The terms “remove” or “removal” means the cleanup or removal of
                  released hazardous substances from the environment, such actions
                  as may be necessary taken in the event of the threat of release of
                  hazardous substances into the environment, such actions as may be
                  necessary to monitor, assess, and evaluate the release or threat of
                  release of hazardous substances, the disposal of removed material,
                  or the taking of such other actions as may be necessary to prevent,
                  minimize, or mitigate damage to the public health or welfare or to
                  the environment, which may otherwise result from a release or
                  threat of release . . . .

                  The terms “remedy” or “remedial action” means those actions
                  consistent with permanent remedy taken instead of or in addition to
                  removal actions in the event of a release or threatened release of a
                  hazardous substance into the environment, to prevent or minimize
                  the release of hazardous substances . . . .

42 U.S.C. § 9601(23) - (24). The relevant agency may choose to order or negotiate with the

party to implement the selected response actions. See 42 U.S.C. §§ 9606(a), 9622(d).


4
    The statute reads:

                  Whenever (A) any hazardous substance is released or there is a substantial
                  threat of such a release into the environment, or (B) there is a release or
                  substantial threat of release into the environment of any pollutant or
                  contaminant which may present an imminent and substantial danger to the
                  public health or welfare, the President is authorized to act . . . to remove or
                  arrange for the removal of, and provide for remedial action relating to
                  such hazardous substance, pollutant, or contaminant at any time (including
                  its removal from any contaminated natural resource), or take any other
                  response measure consistent with the national contingency plan which the
                  President deems necessary to protect the public health or welfare or the
                  environment.

42 U.S.C. § 9604(a).

                                                    7
               CERCLA itself shields pending CERCLA response actions from lawsuits that

might otherwise interfere with an “expeditious cleanup effort.” New Mexico v. Gen. Elec. Co.,

467 F.3d 1223, 1249 (10th Cir. 2006). It accomplishes this through its timing of judicial review

provision, § 113(h). See 42 U.S.C. § 9613(h). 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 [104 of CERCLA], in any action except one of the following

[exceptions].” Id. § 9613(h). “A suit challenges a remedial action within the meaning of

[§]113(h) if it interferes with the implementation of a CERCLA remedy.” Broward Gardens

Tenants Ass'n v. EPA, 311 F.3d 1066, 1072 (11th Cir. 2002).

               A. Application of § 113(h) to RCRA Suits

               Plaintiffs argue that § 113(h) does not apply to this RCRA endangerment action

and that the Court should find that Congress barred only additional CERCLA enforcement

actions in § 113(h). They base their argument on the statute’s list of exceptions to the § 113(h)

bar, which allows certain suits under CERCLA to go forward despite response actions, but does

not address suits under other statutes. Section 113(h) lays out five exceptions to its jurisdictional

bar: (1) actions to recover costs and damages or for contribution under CERCLA; (2) actions to

enforce orders issued under CERCLA; (3) actions for reimbursement of compliance costs in

connection with a CERCLA action; (4) citizen suits alleging that a removal or remedial action

violated CERCLA; and (5) actions by the United States to compel a CERCLA remedial action.

42 U.S.C. § 9613(h)(1) - (5).

               Plaintiffs’ argument is logically strained: exceptions to the jurisdictional bar that

advance CERCLA enforcement can hardly be said to authorize lawsuits under other statutes. In

addition, the plain language of § 113(h) runs counter to the argument. Congress very clearly



                                                  8
stated that no action in federal court may proceed to challenge CERCLA enforcement. Id.

§ 9613(h). Thus § 113(h) “effectuates a ‘blunt withdrawal of federal jurisdiction.’” Oil, Chem.

& Atomic Workers Int'l Union, AFL-CIO v. Richardson, 214 F.3d 1379, 1382 (D.C. Cir. 2000)

(quoting N. Shore Gas Co. v. EPA, 930 F.2d 1239, 1244 (7th Cir. 1991)). “[T]he unqualified

language of the section precludes any challenges to CERCLA Section 104 clean-ups, not just

those brought under other provisions of CERCLA.” McClellan Ecological Seepage Situation v.

Perry, 47 F.3d 325, 328 (9th Cir. 1995) (internal quotation marks and citation omitted); see also

Boarhead Corp. v. Erickson, 923 F.2d 1011, 1020 (3d Cir. 1991) (“Congress could hardly have

chosen clearer language to express its intent generally to deprive the district court of jurisdiction

over claims based on other statutes when the EPA undertakes the clean-up of toxic wastes . . .

.”). 5

               For example, the D.C. Circuit has found that a suit for violation of the National

Environmental Policy Act, 42 U.S.C. § 4321 et. seq., was barred when the Department of Energy

had already begun a CERCLA removal action. Oil, Chem. & Atomic Workers, 214 F.3d at 1382-

83. Other circuits have likewise found RCRA enforcement actions barred by § 113(h).

McClellan, 47 F.3d at 329 (“Although judicial review is an important element in the enforcement

of laws such as RCRA and the Clean Water Act, Congress has determined that the need for swift

execution of CERCLA cleanup plans outweighs this concern”); Clinton Cnty. Comm'rs v. EPA,

5
 Plaintiffs emphasize that § 113(h)(4) allows CERCLA citizen suits only after a remedial or
removal action is complete. See Schalk v. Reilly, 900 F.2d 1091, 1095 (7th Cir. 1990). They
argue that this means the litigation bar in § 113(h) applies only to CERCLA. “However, the
method of section 113(h) is not to toll judicial remedies, and leave it at that; it is to specify the
remedies that survive.” N. Shore Gas, 930 F.2d at 1245. Thus, by specifying timing for
CERCLA citizen suits to after government remediation, Congress was not limiting the scope of
the § 113(h) jurisdictional bar. See New Mexico, 467 F.3d at 1249 (“[T]he obvious meaning of
[§ 113(h)] is that when a remedy has been selected, no challenge to the cleanup may occur prior
to completion of the remedy.”). Most actions “challenging” a CERCLA response will be moot
at the point the cleanup process is completed. N. Shore Gas, 930 F.2d at 1245.


                                                  9
116 F.3d 1018, 1027 (3d Cir. 1997) (holding that § 113(h) precludes jurisdiction “over any

challenge to a CERCLA action based on a violation of any other federal law.”); Ark. Peace Cntr.

v. Ark. Dep’t of Pollution Control & Ecology, 999 F.2d 1212, 1217-18 (8th Cir.1993) (holding

that plain wording of § 113(h) requires that a suit under RCRA is barred if it challenges a

CERCLA response action); OSI, Inc. v. United States, 525 F.3d 1294, 1297-98 (11th Cir. 2008)

(If a “remedial action was selected under [§ 104], then the district court lacked jurisdiction over

the RCRA citizen suit until the cleanup action was complete.”); N. Shore Gas, 930 F.2d at 1244

(finding a suit under RCRA barred by § 113(h)). 6

               Despite this precedent, Plaintiffs argue that applying § 113(h) here would “repeal

by implication” RCRA’s own claim preclusions. RCRA itself bars citizen endangerment suits

when the federal government (1) has commenced and is prosecuting a RCRA enforcement action

under § 7002, 42 U.S.C. § 6973, or a CERCLA abatement action under § 106 of CERCLA, 42

U.S.C. § 9606; (2) “is actually engaging in a removal action under [CERCLA]”; (3) “has

incurred costs to initiate a Remedial Investigation and Feasibility Study . . . and is diligently

proceeding with a remedial action under [CERCLA]”; or (4) “has obtained a court order

(including a consent decree) or issued an administrative order” under § 106 of CERCLA. 42

U.S.C. § 6972(b)(2)(B)(i) - (iv). Plaintiffs assert that “where a federal agency has undertaken

and completed some initial study or other removal action but not actually moved forward with a

final remedial plan, RCRA allows [a citizen] suit, but CERCLA does not.” Pls.’ Opp’n [Dkt. 9]

at 14. According to Plaintiffs, RCRA allows citizen suits before the federal government has

begun to implement a CERCLA remediation plan “diligently.” Id. Since RCRA itself would
6
  But see United States v. Colorado, 990 F.2d 1565 (10th Cir. 1993), in which the Tenth Circuit
allowed a RCRA enforcement action brought by a State under § 7002(a)(1)(B), relying in part on
the section of CERCLA that states, “[n]othing in [CERCLA] shall be construed or interpreted as
preempting any State from imposing any additional liability or requirements with respect to the
release of hazardous substances within [the] State.” 990 F.2d at 1575 (citing 42 U.S.C. 9614(a)).

                                                  10
allow their suit – the federal government having not been diligent – Plaintiffs argue that applying

§ 113(h) to bar their suit would repeal RCRA’s preclusion provisions by implication.

               Plaintiffs rely on legal maxims to support their argument. “It is a cardinal

principle of construction that repeals by implication are not favored. When there are two acts

upon the same subject, the rule is to give effect to both if possible.” United States v. Borden Co.,

308 U.S. 188, 198 (1939). “In the absence of some affirmative [congressional] showing of an

intention to repeal, the only permissible justification for a repeal by implication is when the

earlier and later statutes are irreconcilable.” Morton v. Mancari, 417 U.S. 535, 550 (1974).

Repeals by implication are “never [permitted] . . . when the former act can stand together with

the new act.” Ex parte Yerger, 75 U.S. 85, 105 (1868).

               Contrary to Plaintiff’s fundamental argument, the preclusion provisions of RCRA

and CERCLA are not irreconcilable. Both statutes preclude RCRA suits under specified

conditions, but CERCLA § 113(h) is broader and bars suits under multiple statutes. RCRA’s

terms clearly apply when two or more RCRA endangerment actions are at issue. CERCLA

“trumps” RCRA and other statutes when CERCLA remediation is under question or attack. This

Court can easily recognize separate effects from each statute. 7

               Plaintiffs also cite the principle that a more general statute should not overcome

specific statute. This principle does not pertain here. These two statutes may overlap in certain

respects but may also readily co-exist. “[W]hen two statutes are capable of co-existence, it is the

duty of the courts . . . to regard each as effective.” Radzanower v. Touche Ross & Co., 426 U.S.

148, 155 (1976) (quoting Morton, 417 U.S. at 551) (ellipses in original). Section 113(h) and
7
  For this reason, Plaintiffs’ argument that the coexistence of CERCLA and RCRA’s preclusion
provisions makes RCRA meaningless also has no traction. “[R]edundancies across statutes are
not unusual events in drafting, and so long as there is no positive repugnancy between the two
laws . . . a court must give effect to both.” Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253
(1992) (internal citation and quotation marks omitted).

                                                 11
RCRA’s preclusion provisions do not cover all of the same circumstances; even so, they reach

the same result where they overlap. The statutes do not conflict and the Court may find both

effective.

               Finally, Plaintiffs argue that CERCLA § 302(d), 42 U.S.C. § 9652(d), shows that

RCRA citizen suits are not barred by § 113(h). Section 302(d) states that nothing in CERCLA

“shall affect or modify in any way the obligations or liabilities of any person under other Federal

or State law, including common law, with respect to releases of hazardous substances or other

pollutants or contaminants.” 42 U.S.C. § 9652(d). Plaintiffs overlook the more applicable

CERCLA savings clause, at § 310(h), which states:

               [CERCLA] does not affect or otherwise impair the rights of any
               person under Federal, State, or common law, except with respect to
               the timing of review as provided in section [113](h) . . . .

42 U.S.C. § 9659(h) (emphasis added). In this comparison, the specific does overcome

the general and § 310(h) makes the primacy of CERCLA § 113(h) explicit.

               B. CERCLA Response Action

               Plaintiffs seek to avoid CERCLA on the basis that there is no ongoing CERCLA

response action at the NPS Site. In advancing this argument, Plaintiffs argue that the response

actions selected for the other four aspects of the overall site should be deemed constructively

complete and therefore § 113(h) should not apply to their suit. They further dispute whether the

NPS ROD actually selected a response action under CERCLA for contaminated sediments in the

Anacostia River.

               With respect to the groundwater and DNAPL remedies, Plaintiffs argue that

“[b]ecause both systems will be left in place indefinitely, completeness is measured not by

whether they continue to operate but by whether they were installed and brought online.” Pls.’



                                                12
Opp’n at 24. Plaintiffs agree that both of these remedies are “‘underway’ in a literal sense.” Id.

Nonetheless they argue that the Court should treat these actions as now complete because neither

has a discernible termination date (which would allow a RCRA suit thereafter). Id.

               Likewise, Plaintiffs urge the Court to deem all soil remedies at the NPS Site

“constructively complete” because NPS has selected but failed to implement a remedial plan,

despite the passage of several years. Id. at 29. This approach is necessitated, according to

Plaintiffs’ argument, or § 113(h) would become an absolute bar to judicial review. Plaintiffs

insist that the “neglect” shown by the United States to the NPS Site should lift the insulation that

CERCLA actions enjoy from review. Id. at 30.

               In essence, Plaintiffs argue that § 113(h)’s withdrawal of federal court jurisdiction

may not indefinitely bar judicial review. Faced with a remedy of lengthy but uncertain duration,

which they consider wholly inadequate, Plaintiffs advance a theory of “constructive completion”

to void CERCLA’s litigation bar. The Court cannot accept the theory on this record. It is true

that the application of § 113(h) “may in some cases delay judicial review for years, if not

permanently . . . . Whatever its likelihood, such a possibility is for legislators, and not judges, to

address.” McClellan, 47 F.3d at 329; see also Schalk, 900 F.2d at 1095 (“The obvious meaning

of [§ 113(h)] is that when a remedy has been selected, no challenge to the cleanup may occur

prior to completion of the remedy.”). While there may be cases where government inaction may

cause a court to look more closely at whether a CERCLA response action has been selected or is

being pursued diligently, this is not that case. Cf. Frey v. EPA, 403 F.3d 828, 835 (7th Cir.

2005) (addressing a situation where CERCLA environmental studies had been ongoing for years

but no remedial action had been selected). Whatever might be said about the years it took for




                                                  13
the United States to take CERCLA actions vis-à-vis the NPS Site, there can be no doubt that it is

moving ahead diligently now.

               Plaintiffs focus particularly on an alleged gap in remedial actions to address

contaminated sediments in the Anacostia River. They characterize the “intent for future action”

described in the NPS ROD as lacking sufficient specificity to constitute remedial or removal

action under CERCLA and thus insufficient to foreclose judicial review. But, as Plaintiffs

reluctantly recognize, CERCLA includes “such actions as may be necessary to monitor, assess,

and evaluate the release or threat of release of hazardous substances” within the meaning of

“remove” or “removal.” 42 U.S.C. § 9601(23). The NPS ROD calls for exactly this type of

action. See Razore v. Tulalip Tribes of Washington, 66 F.3d 236, 239 (9th Cir. 1995) (holding

that a RI/FS whose objective was to make an informed choice amongst possible cleanup

alternatives satisfied the definition of a removal action under CERCLA); Broward Gardens, 311

F.3d at 1071 (stating CERCLA removal actions “include actions to study and clean up

contamination”); Jach v. Am. Univ., 245 F. Supp. 2d 110, 113 (D.D.C. 2003) (CERCLA cleanup

process is divided into short term “removal” actions (actions to study and clean up

contamination) and permanent or long term “remedial” actions (actions taken instead of or in

addition to removal)). The consent decree proposed in Case No. 11-2199 includes specifics on

such an investigation and study.

               Frey v. EPA, 403 F.3d 828, in which the Seventh Circuit rejected EPA’s plan to

study river sediment and water contamination as a CERCLA “removal action” sufficient to

trigger § 113(h), is not convincing. In that case, EPA had completed excavation of contaminated

soil but continued water and sediment investigations, without more, for at least another five

years. The Seventh Circuit became impatient and decided that EPA could not “preclude review



                                                14
by simply pointing to ongoing testing and investigation, with no clear end in sight.” 403 F.3d at

835. This Court is not persuaded to follow Frey, especially when the proposed consent decree is

so close to fruition. Plaintiffs do not dispute that active remediation efforts have been on-going

by Washington Gas for years. They concentrate their concerns on the alleged neglect of the

sediment in the Anacostia River. The proposed consent decree addressed the sediment which is,

in truth, but a part of the overall recovery effort.

                Lastly, Plaintiffs argue that the transfer of the NPS Site to the District of

Columbia, through which the District of Columbia and NPS agreed to reassess the

appropriateness of the NPS ROD, renders all remedies selected in the NPS ROD so transient that

they should be deemed “constructively complete.” Whatever the value of Plaintiffs’

constructive completion theory in other situations, it fails here. Were it applicable, it was at a

time before the proposed final consent decree containing specific selected remedies came before

the Court for review and approval.

                C. The River Site

                Plaintiffs allege that the Anacostia River itself is adjacent to the NPS Site and that

no CERCLA response actions are selected or ongoing for that site. This is wrong as a matter of

fact, as a review of the proposed final consent decree makes immediately obvious. The Site that

is covered by the proposed consent decree includes property adjacent to, under, and in the

Anacostia River, and the river’s sediments are an identified focus of the study and further

selection of remediation methods.

                D. Non-Challenge to CERCLA Response Action

                As a final argument, Plaintiffs contend that this law suit is not a challenge to any

CERCLA response actions within the meaning of § 113(h). The question is whether Plaintiffs’



                                                   15
complaint would “interfere[] with the implementation of a CERCLA [response],” Broward

Gardens, 311 F.3d at 1072, or is related to the goals of the cleanup. Razore, 66 F.3d at 239.

“To determine whether a suit interferes with, and thus challenges, a cleanup, courts look to see if

the relief requested will impact the . . . action selected.” Broward Gardens, 311 F.3d at 1072.

“[L]itigation which interferes with even the most tangential aspects of a cleanup action is

prohibited.” Oil, Chem. & Atomic Workers Int'l Union, AFL-CIO v. Pena, 62 F. Supp. 2d 1, 10

(D.D.C. 1999), aff'd sub nom. Oil, Chem. & Atomic Workers Int'l Union, AFL-CIO v.

Richardson, 214 F.3d 1379.

                Plaintiffs claim that “granting [their requested] relief would not require the Court

to interfere with the selected remedial plan in any way — either by adding, changing, or

removing actions, by disrupting ongoing selection processes, or by altering the timeline” because

it “would require only that the Court implement the NPS ROD.” Pls.’ Opp’n at 34. Plaintiffs

mischaracterize their own complaint, which asks the Court to order “Washington Gas to take all

such actions as may be necessary to eliminate any endangerment” from hazardous contamination

at the site. Compl. at 15 (Relief Requested). Such a remedy fashioned and ordered by the Court

would most certainly interfere with the implementation of the proposed CERCLA remedies.

Broward Gardens, 311 F.3d at 1073 (“Because the complaint seeks to have the court modify or

replace the remedial plan . . . , it clearly is a challenge to the selected remedial plan.”).

                Even if Plaintiffs’ characterization of the complaint were to be credited, the relief

they seek would still constitute a “challenge” to a CERCLA response action. “[C]hallenges to

the procedure employed in selecting a remedy nevertheless impact the implementation of the

remedy and result in the same delays Congress sought to avoid by passage of [CERCLA] . . . .

The judicial review itself slows the process down.” Schalk, 900 F.2d at 1097 (dismissing suit by



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which plaintiff sought a court order requiring EPA to conduct studies and conduct public

hearings); see also Boarhead, 923 F.2d at 1019 (“Congress enacted CERCLA so that the

[executive] would have the authority and the funds necessary to respond expeditiously to serious

hazards without being stopped in its tracks by legal entanglement before or during the hazard

clean-up.”). Plaintiffs fail to distinguish their suit from those barred by CERCLA.

                                     IV. CONCLUSION

              Because the Complaint is barred by § 113(h) of CERCLA, Washington Gas’

motion to dismiss [Dkt. 8] will be granted, and the case will be dismissed. A memorializing

Order accompanies this Opinion.



Date: September 24, 2012                                     /s/             _
                                                ROSEMARY M. COLLYER
                                                United States District Judge




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