Mexico v. U.S. Dep't of Energy & L. Alamos Nat'l Sec., LLC

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

No. 1:16-cv-00433-JCH-SCY

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

July 12, 2018

MEMORANDUM OPINION AND ORDER

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

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

Statutory and Regulatory Background

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

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

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

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

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

Factual Background¹

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

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

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

Hazardous wastes have also been released into and detected in soils and sediments at the Laboratory. Id. ¶ 38. Such wastes include explosives, such as RDX, HMX, and trinitrotoluene (TNT); volatile organic compounds and semi-volatile organic compounds; metals such as...