United States v. N.M. Env't Dep't

UNITED STATES OF AMERICA, Plaintiff, v. NEW MEXICO ENVIRONMENT DEPARTMENT,and JAMES KENNEY, Secretary (in his official capacity), Defendants.

No. CV 19-46 KG/SMV

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

March 31, 2020

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Defendants' Motion to Dismiss or in the Alternative Motion for a More Definite Statement, filed February 18, 2019. (Doc. 4). Defendants New Mexico Environment Department and James Kenney, Secretary (jointly, NMED), ask the Court to abstain from exercising its jurisdiction over this case pursuant to the Younger, Pullman, and Colorado River, abstention doctrines. NMED also asks the Court to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim on which relief may be granted, or, alternatively, order the United States to provide a more definite statement under Fed. R. Civ. P. 12(e). Id.

The United States filed a response to the Motion on March 14, 2019, NMED filed its reply on March 28, 2019, and the United States filed a surreply on April 10, 2019. (Docs. 15, 17, and 21). Having considered the briefing, the record, and the applicable law, the Court declines to abstain from exercising jurisdiction over this case, denies NMED's motion to dismiss the Complaint for failure to state a claim, and denies NMED's alternative motion for a more definite statement.

I. Background

This case arises out of the United States' challenge to a hazardous waste disposal permit issued by NMED to Cannon Air Force Base (Permit). The Permit is issued pursuant to NMED's authority to implement a state hazardous waste program in lieu of the federal Resource Conservation and Recovery Act (RCRA) Subtitle C hazardous waste program. 42 U.S.C. § 6926(b). The United States relies on 28 U.S.C. §§ 1331 and 1345 for jurisdictional authority. (Doc. 1) at 2.

A. Resource Conservation and Recovery Act and New Mexico Hazardous Waste Act

The Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq., was enacted in 1976 to address environmental and health dangers arising from improper solid waste treatment, storage, and disposal. Under RCRA, "hazardous wastes" are a subset of "solid wastes" and are subject to the more stringent "cradle to grave" standards of Subtitle C, 42 U.S.C. §§ 6921-6939b. The United States Environmental Protection Agency (EPA) administers RCRA's hazardous waste program by requiring owners and operators of facilities to obtain permits, issuing administrative compliance orders, and seeking civil and criminal penalties for violations. See 42 U.S.C. § 6928; 40 C.F.R. § 260.1, et seq. However, the EPA may authorize states to implement a state hazardous waste program in lieu of RCRA so long as the state program meets the minimum federal standards. 42 U.S.C. § 6926(b). RCRA does not preclude a state from adopting more restrictive requirements for the treatment, storage, and disposal of hazardous waste. 42 U.S.C. § 6929; 40 C.F.R. § 271.1(i)(1); United States v. State of Colorado, 990 F.2d 1565, 1569 (10th Cir. 1993) ("RCRA sets a floor not a ceiling for state regulation of hazardous wastes.") (quoting Old Bridge Chems., Inc. v. New Jersey Dep't of Envtl. Protection, 965 F.2d 1287, 1296 (3rd Cir. 1992)).

Once the EPA authorizes a state to carry out a state hazardous waste program in lieu of RCRA, any action taken by the state has "the same force and effect as action taken by the [EPA]," and the federal government must comply with RCRA or an EPA-authorized state program "to the same extent as any person." 42 U.S.C. §§ 6961, 6962. Thus, RCRA contains a waiver of sovereign immunity for federal facilities that engage in hazardous waste treatment.

In 1985, the EPA authorized New Mexico's hazardous waste program pursuant to RCRA and delegated to New Mexico "primary responsibility for enforcing its hazardous waste management program." 40 C.F.R. § 272.1601 (2019). New Mexico implemented this authority through the New Mexico Hazardous Waste Act (NMHWA), NMSA 1978, §§ 74-4-1 to -13 (Repl. Pamp. 2000). As part of the program, New Mexico issues operating permits to conduct certain hazardous waste operations. NMSA 1978, § 74-4-4.2 (Repl. Pamp. 2000). In order to receive a permit, an entity must submit an application to NMED and NMED processes the application according to NMHWA regulations. N.M. Admin. Code 20.4.1.901 (2018). NMED issues a draft permit and receives comments prior to issuing the final permit. Id. Under the NMHWA, "any person who is or may be affected by any final administrative action" by NMED may appeal that action to the New Mexico Court of Appeals within 30 days. NMSA 1978, § 74-4-14(A) (Repl. Pamp. 2000).

B. The Permit

On December 19, 2018, NMED issued a Permit to Cannon Air Force Base under the NMHWA, thereby replacing a prior hazardous waste permit that was issued in 2003. (Doc. 4) at 3. The Permit requires the Permittee ("the United States, Department of Air Force, Cannon Air Force Base") "to conduct corrective action activities and to conduct tasks in accordance with a schedule of compliance," and "establishes the general and specific standards for these activities,as required pursuant to the [NMHWA and the Hazardous Waste Management Regulations]." (Doc. 1-1) at 11 (Permit § 1.3 "Permitted Activity"). Relevant to this case, the Permit contains the following definitions:

Contaminant means any hazardous constituent listed in 40 CFR Part 261, appendix VIII and 40 CFR Part 264, appendix IX; any groundwater contaminant listed in the New Mexico WQCC Regulations at 20.6.2.3103 NMAC; any toxic pollutant listed in the New Mexico WQCC Regulations a 20.6.2.7.WW NMAC; methyl tertiary-butyl ether; perchlorate; polychlorinated biphenyls (PCBs); dioxins and furans; perfluorinated compounds including perfluorooctane sulfonate and perfluorooctanoic acid; and any other substance present in soil, sediment, rock, surface water, groundwater, or air for which the NMED determines that monitoring, other investigation, or a remedy is necessary to carry out the purposes of this Permit.

Corrective Action means all corrective action, as defined in 20.4.2.7.I NMAC, necessary to protect human health and the environment for all releases of hazardous waste or hazardous constitutes, or other contaminants defined by this Permit Section (1.12), to the environment as required under HWA 74-4-4.2 (B) and 40 CFR 264.101. Corrective action may address releases to air, soil, sediment, surface water, or groundwater.

Hazardous Waste, for the purposes of corrective action for solid waste management units and areas of concern conducted pursuant to 74-4-4.2(B) of the HWA, 40 CFR part 264, subpart F, or 40 CFR 270.32(b)(2), means a hazardous waste as defined in 74-4-3(I) of the HWA. Hazardous waste, for the purposes of corrective action, includes, without limitation any hazardous waste as defined in 40 CFR 261.3, any groundwater contaminant listed in the Water Quality Control Commission (WQCC) Regulations in 20.6.2.3103 NMAC, any toxic pollutant listed in 20.6.2.WW NMAC, any contaminant defined in this Permit Section (1.12) or for which the EPA has promulgated a maximum contaminant level (MCL) at 40 CFR parts 141 and 143, perchlorate, methyl tertiary butyl, ether, polychlorinated biphenyls (PCBs), dioxins, furans, perfluorinated compounds including perfluorooctane sulfonate and perfluorooctanoic acid, and munitions constituents as defined in 10 U.S.C. 2710(e)(3).

Hazardous Constituent means any constituent identified in 40 CFR Part 261, Appendix VIII and any constituent identified in 40 CFR Part 264 Appendix IX.

Id. at 15-16 (Permit § 1.12 "Definitions").

C. Federal Court and State Court Actions

On January 17, 2019, the United States filed this action for declaratory and injunctive relief raising a single claim that the Permit's definition of "hazardous waste" is inconsistent with the NMHWA and, thus, exceeds the scope of RCRA's waiver of sovereign immunity. (Doc. 1) at 4. The United States asks the Court to "[d]eclare that the language in Permit Section 1.12 defining 'hazardous waste' for the purpose of corrective action is contrary to the [NM]HWA, RCRA, and the relevant implementing regulations under each statute," and to set aside the unlawful provisions of the Permit. Id.

Also on January 17, 2019, the United States filed an appeal with the New Mexico Court of Appeals, raising the following claims: (1) the definitions of "hazardous waste" and "hazardous constituents" in the Permit exceed the scope authorized under the NMHWA; (2) the NMHWA does not provide for regulation of "contaminants" or permit terms addressing "contaminants;" (3) the definition of "corrective action" in the Permit is inconsistent with the NMHWA because it references definitions of hazardous waste and hazardous constituents that are not in accordance with law and because it references "contaminants;" and (4) the administrative record for the Permit does not support the "cleanup levels" in the Permit or any requirement pertaining to the cleanup of substances that are not "hazardous wastes" or "hazardous constituents" as those terms are defined in the NMHWA. Docketing Statement filed in N.M. Ct. App. No. A-1-CA-37887. The state case has been stayed pending this Court's decision on NMED's Motion to Dismiss. Order dated April 10, 2019, filed in N.M. Ct. App. No. A-1-CA-37887.

In its Motion to Dismiss, NMED asks the Court to abstain from considering the United States' Complaint under the Younger, Pullman, and Colorado River abstention doctrines. (Doc.4) at 4-9. NMED also moves for dismissal of the Complaint for failure to state a claim upon which relief can be granted or, alternatively, for a more definite statement under Fed. R. Civ. P. 12(e). Id. at 9-13.

II. Discussion

A. Abstention

The federal courts have a "virtually unflagging obligation" to exercise the jurisdiction given them. D.A. Osguthorpe Family P'ship v. ASC Utah, Inc., 705 F.3d 1223, 1233 (10th Cir. 2013) (quo...