City of Fresno v. Boeing Company, et al.

Filing 228

MEMORANDUM, DECISION RE: Defendant's Motion for Partial Judgment on the Pleadings of for Partial Summary Judgment as to Plaintiff's RCRA Claim; Motion for Partial Judgment on the Pleadings as ot Plaintiff's HSAA Claim 142 & 143 , signed by Judge Oliver W. Wanger on 4/22/2010. (Kusamura, W)

1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION. v. UNITED STATES OF AMERICA, et al., Defendants. CITY OF FRESNO, Plaintiff, No. CV-F-06-1559-OWW-TAG MEMORANDUM DECISION RE: DEFENDANT'S MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS OR FOR PARTIAL SUMMARY JUDGMENT AS TO PLAINTIFF'S RCRA CLAIM; MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS AS TO PLAINTIFF'S HSAA CLAIM (Docs. 142 & 143.)

This is a dispute over environmental remediation between Plaintiff City of Fresno (the "City") and Defendants the Boeing Company ("Boeing"), the United States Army Corps of Engineers, and the National Guard Bureau (collectively, the "United States"). The dispute concerns the environmental remediation of Old Hammer Field ("OHF") in Northeast Fresno, a site presently occupied by the Fresno-Yosemite International Airport. This site was used by the In 1946,

United States as an Army Air base during World War II.

the United States transferred the property to Plaintiff, which has since owned and controlled it. Boeing's predecessor, North

American Aviation, was one of Plaintiff's tenants of the property in the 1950s. 1

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The City of Fresno has sued the United States and Boeing in a Second Amended Complaint ("SAC") under CERCLA, RCRA, HSAA, as well as various state law theories. Plaintiff alleges that it "has

shouldered, and continues to shoulder, a disproportionate share of the past, present and ongoing costs associated with the

investigation and clean up of the OHF property, as well as off-site areas affected by Defendants' polluting activities." (SAC � 4.)

Plaintiff requests a "declaration of responsibility and payment from Defendants for their fair share of all past, present and future responses costs [sic] incurred in response to Defendants' release of hazardous substances, wastes, materials and pollutants." (Id. � 6.) Plaintiff also seeks monetary and injunctive relief.1

Before the court for decision are two motions brought by Defendant United States: (1) for partial judgment on the pleadings or partial summary judgment as to Plaintiff's fourth claim under the RCRA; and (2) for partial judgment on the pleadings as to Plaintiff's third claim under the HSAA. Defendant's RCRA motion challenges subject matter jurisdiction over this claim under � 113(h) of CERCLA. Defendant also argues

that the claim is moot because the activities Plaintiff seeks to enjoin are already underway, under the doctrine of primary

jurisdiction, and because there is no imminent and substantial endangerment at OHF as required under Plaintiff's RCRA claim. The HSAA claim is allegedly infirm because the United States has not
1

Specifically, Plaintiff seeks a "preliminary injunction and permanent injunction directing Defendants [...] to investigate and remediate completely the contamination on, under, adjacent to or downgradient from OHF and the surrounding areas in an expeditious manner." (Doc. 123-3. 36:24-36:27.) 2

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unequivocally waived its sovereign immunity. These motions were originally filed on April 23, 2007 and renoticed on August 20, 2009. Although the arguments in the

original motions and renewed motions are largely the same, there is one important distinction: Plaintiff now alleges that 1,2,3-

trichloropropane ("TCP") has leached into the City's water supply, allegedly from the federal facilities located on or near OHF. The

alleged presence of TCP - and its effect on the current remediation plan - drives the current dispute.

II. FACTUAL/PROCEDURAL BACKGROUND. This case involves the cost, scope, and progress of

environmental remediation activities conducted by Plaintiff City of Fresno, Boeing, and the United States at Old Hammer Field ("OHF"), a site presently occupied by the Fresno-Yosemite International Airport. This site was used as an Army Air base during the World Boeing's predecessor, North American Aviation

War II years.2

("NAA"), was one of Plaintiff's tenants of the property in the 1950s. The State of California, through its Department of Toxic Substances Control ("DTSC") and the Regional Water Quality Control Board ("RWQCB") ("State Agencies") has oversight over the cleanup. The parties work together as the Old Hammer Field Steering

Committee and have entered into multiple agreements since 1993,

The majority of the work at OHF focuses on a 78-acre parcel known as "Area 1." (Weston Dec., � 5.) Area 1 was historically the location of the most intense industrial activity, both during and after World War II. (Id.) 3

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including a 1993 Cost-Sharing Agreement containing an interim allocation of costs and specification of remedial tasks to be performed.3 On October 4, 1994, Plaintiff, the United States, and

the State Agencies entered into a Potentially Responsible Party Agreement for Old Hammer Field ("Cooperative Agreement") governing the performance of the investigation and response actions at the site. On the same date, DTSC issued an Imminent or Substantial

Endangerment Order and Remedial Action Order for OHF to Rockwell International, a successor to NAA and one of Boeing's predecessors. In May 2004, the State Agencies approved the Final Remedial Action Plan ("RAP") for OHF, which was a result of the Cooperative Agreement process. concern. known as The RAP identified two primary contaminants of

First, a chlorinated volatile organic compound ("VOC") trichloroethene ("TCE"), which has been used as a

degreaser and industrial solvent for many industrial activities. The TCE plume extends almost 12,000 feet long, up to 4,000 feet wide at points, and up to 300 feet deep at points. It is suspected

to have originated from Area 1. Second, tetrachloroethene ("PCE"), another industrial solvent, is contained within the larger TCE plume. The RAP has five principal components: (1) the Water Supply Contingency Plan; (2) the operation and treatment of water from Well 70; (3) the treatment of the "source area; (4) installation of wells to prevent downgradient migration of contaminants; and (5)

The Steering Committee retained consultant ERM West, Inc. to perform most of the remedial work at OHF. (White Dec., Doc. 45-3, � 9.) 4

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the operation and maintenance of the system.4 None of the parties is satisfied with the interim allocation of money each has paid over the years under the Cost-Sharing Agreement. Each believes it is entitled to reimbursement from the Nonetheless, until August 2006, the cleanup had interruption with funding from the parties

other parties. continued

without

identified in a series of amendments to the original Cost-Sharing Agreement. In early 2006, disputes about funding arose and while

alternative proposals were discussed, the parties were unable to agree on the allocation of funds. With funding exhausted, in

August 2006 the parties notified the State Agencies that the remediation work at OHF would stop because of funding

disagreements. In September 2006, DTSC determined Plaintiff and the United States were non-compliant with the Cooperative Agreement and that Boeing was non-compliant with the DTSC's October 1994 Order. On

October 20, 2006, pursuant to the California Water Code, the RWQCB issued an order to all of the parties to comply with a groundwater monitoring and discharging program. On October 31, 2006, pursuant

to the California Health and Safety Code, DTSC issued an Imminent or Substantial Endangerment Determination and Order and Remedial Action Order to all the parties to conduct various response actions in accordance with a specific timeline. The DTSC Order required

all parties, unilaterally, jointly, and severally, to immediately

The RAP originally included a sixth principal component, the "Pre-Design Investigation the Southeast Plume Source Area," but it was determined - based on a review of the samples - that the remediation systems were sufficient. 5

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ensure that all required activities under the OHF RAP moved forward in accordance with the enforceable schedule. In December 2006 the

parties reached an agreement to fund the activities required by the State Agencies in their October 2006 orders in the form of

Amendment 8 to the Cost-Sharing Agreement. On November 2, 2006, Plaintiff filed this action seeking payment for response costs it has incurred in relation to the cleanup at OHF of contaminants released by Defendants. The City

sought a declaration of responsibility for past, present and future response costs incurred at OHF, as well as damages and injunctive relief to remediate the harm caused to OHF. Plaintiff originally

pled twelve causes of action: a) Claims One and Two against all Defendants for equitable contribution under CERCLA section 107(a) and section 113(f) contribution, respectively, b) Claim Three against all Defendants for contribution and indemnity pursuant to HSAA, Cal. Health and Safety Code � 25363(e) and treble damages under � 25398.17, c) Claim Four against all Defendants for

injunctive relief and litigation costs pursuant to RCRA � 6972, d) state law claims against Boeing, Claims Five through Eleven, for continuing nuisance, public nuisance, negligence, negligence per se, continuing trespass, waste, and equitable indemnity and

contribution, and e) Claim Twelve for declaratory relief, seeking a judicial determination of the parties' respective liabilities for the OHF cleanup. On April 23, 2007, Defendant United States moved for partial judgment on the pleadings or partial summary judgment on

Plaintiff's RCRA claim and for partial judgment on the pleadings as to the HSAA claim. The City opposed the motion and the parties 6

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appeared before the Court on December 3, 2007 for oral argument on Defendant's motions. The case was subsequently stayed pending On April 17, 2009, the stay was lifted (Doc.

settlement negotiations.

and Plaintiff was ordered to file an amended complaint. 122.)

Plaintiff filed a Second Amended Complaint on May 18, 2009, advancing twelve causes of action, including claims under RCRA and HSAA. (Doc. 123-3.) Defendant United States filed a "Notice of The

Renewal of Pending Dispositive Motions" on August 7, 2009. unopposed motion was granted on August 12, 2009.

On August 20, 2009, the United States renoticed its motion for partial judgment on the pleadings or partial summary judgment on Plaintiff's RCRA claim: This motion will be based on this Notice of Motion and Motion, the Statement of Undisputed Material Facts, the Memorandum of Points and Authorities, the Declaration of Linda J. White, the Declaration of Rick Weston, and accompanying exhibits, all of which have been previously filed [on April 23, 2007], all the papers and pleadings on file in this matter, and on such argument of counsel and additional evidence as may be considered at the hearing. The previously filed Memorandum of Points and Authorities contains arguments and references relating to the First Amended Complaint. Such arguments and references are equally applicable to the Second Amended Complaint, filed June 9, 2009, which contains allegations that, in all respects material to this motion, are identical to the corresponding allegations of the First Amended Complaint. (Doc. 142.5) The City opposed the United States' motions on September 14,

The United States also incorporates its earlier filings in conjunction with its motion for partial judgment on the pleadings on Plaintiff's HSAA claim. (Doc. 143.) 7

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2009.6

In connection with its opposition, the City has filed a

number of exhibits and declarations, including the declaration of Lisa Decker, counsel for the City.

III. LEGAL STANDARD Defendant moves for partial judgment on the pleadings or partial summary judgment. Judgment on the pleadings is appropriate if, assuming the truth of all material facts pled in the complaint, the moving party is nonetheless entitled to judgment as a matter of law. Hal Roach Studios v. Richard Feiner & Co., Inc., 896 F.2d Under Rule 12(c), if "matters outside the

1542 (9th Cir. 1989).

pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56." MetroPCS, Inc. V. City and County of San Here, the United

Francisco, 400 F.3d 715, 720 (9th Cir. 2005).

States provides two declarations with numerous supporting documents as evidence in support of its RCRA arguments. Because Defendant

relies on matters outside the pleadings, its RCRA motion cannot be resolved under Rule 12(c). Accordingly, the RCRA motion is treated as a motion for summary judgment. The United States, however, does not rely on matters outside the pleadings to support its HSAA motion, therefore it is analyzed under Rule 12(c).

A.
6

Summary Judgment

Similar to Defendant, the City "incorporates in their entirety the points and arguments raised in its Opposition to the United States' Motions filed [] on May 7, 2007 and raised in oral argument on December 3, 2007." (Doc. 150, 1:27-2:2.) The City also filed supplemental oppositions. (Docs. 150 & 151.) 8

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Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The movant "always bears the initial responsibility of

informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986) (internal quotation marks omitted). Where the movant will have the burden of proof on an issue at trial, it must "affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party." Soremekun v. With

Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007).

respect to an issue as to which the non-moving party will have the burden of proof, the movant "can prevail merely by pointing out that there is an absence of evidence to support the nonmoving party's case." Soremekun, 509 F.3d at 984.

When a motion for summary judgment is properly made and supported, the non-movant cannot defeat the motion by resting upon the allegations or denials of its own pleading, rather the

"non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, `specific facts showing that there is a genuine issue for trial.'" Soremekun, 509 F.3d at 984. (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). "A non-movant's bald assertions or a mere scintilla of evidence in his favor are both insufficient to withstand summary judgment." FTC v. 9

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Stefanchik, 559 F.3d 924, 929 (9th Cir. 2009). must show a genuine issue of material fact

"[A] non-movant by presenting

affirmative evidence from which a jury could find in his favor." Id. (emphasis in original). "[S]ummary judgment will not lie if

[a] dispute about a material fact is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. In determining

whether a genuine dispute exists, a district court does not make credibility determinations; rather, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255.

B.

Judgment on the Pleadings

A party may move for judgment on the pleadings after the pleadings are closed but early enough not to delay trial. Fed. R.

Civ. P. 12(c). When a Rule 12(c) motion challenges the sufficiency of the pleadings, the standard for such a motion is similar to the standard for a Rule 12(b)(6) motion in that judgment on the pleadings is appropriate when, even if all the allegations in the complaint are true, the moving party is entitled to judgment as a matter of law. Milne ex rel. Coyne v. Stephen Slesinger, Inc., 430 F.3d 1036, 1042 (9th Cir. 2005). In such cases, the court assumes

the allegations in the complaint are true and construes those allegations in the light most favorable to the plaintiff.

McGlinchey v. Shell Chemical Co., 845 F.2d 802, 810 (9th Cir. 1988). Conclusory allegations, however, without Id. more are

insufficient to defeat a Rule 12(c) motion.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. The United States

IV.

DISCUSSION judgment on two of the claims

seeks

contained in the SAC.

First, the United States seeks summary Second, the

judgment on Plaintiff's fourth claim under RCRA.

United States seek judgment on the pleadings on Plaintiff's third claim under the HSAA.

Preliminary Issues 1. Declaration of Robert Dworkin

To support the substance of its RCRA arguments, particularly those relating to "mootness," the City contends that at an August 2009 deposition, Mr. Robert Dworkin, a FUDS Program Manager, acknowledged that the Corps had not requested funding for the OHF cleanup in its 2009-2010 budget. According to the City, "[g]iven

that the point of the City's RCRA claim is to require the United States to actually fund its commitment to clean up OHF," the RCRA claim cannot be moot in light of the United States' testimony. In response, the United States submitted the sworn declaration of Robert J. Dworkin, which clarified his August 2009 remarks: During my deposition in this action on August 27,2009, I testified that, at that time, the Corps had not budgeted any funds for the remediation of Old Hammer Field for Fiscal Year 2010, which extends from October 1,2009 through September 30, 2010. I testified that the budgeting process was not yet completed and that there was still an opportunity for FUDS to be budgeted for the Old Hammer Field cleanup. After the deposition, and despite Plaintiffs previous withdrawal from settlement negotiations, it was requested and the Corps agreed to reprogram, from FUDS that had been assigned to other remediation projects, approximately $300,000 that will be made available in increments of approximately $100,000 per quarter for the first three quarters of Fiscal Year 2010. It is the Corps' understanding that this will cover the 11

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Agency's share of expenses under the terms of the previous cost share agreement for the coming year. The funding described above will be made available subject to normal restrictions on federal agency funding such as the Anti-Deficiency Act. It should also be noted that the Department of Defense and the U.S. Army Corps of Engineers are currently operating under a Continuing Resolution Act at the moment which severely constrains DOD funds until such time as the Federal Government completes the DOD appropriations process for Fiscal Year 2010. (Doc. 167-2, Dworkin Dec., �'s 3-5.) Mr. Dworkin's sworn declaration resolves many of the arguments raised in the City's motion, particularly as they relate to funding for the Corps' 2009-2010 budget.7

2.

Current Status of Cleanup In

The OHF is the subject of ongoing remediation efforts.

1994, the City, the United States, and Boeing signed a cooperative agreement outlining the investigation, cleanup, and response

actions at the OHF site.

In 2004, the stage agencies approved the In October 2006, following a dispute

final RAP for the OHF site.

among the parties, the DTSC issued an "Imminent or Substantial Endangerment Determination and Order" requiring all parties to unilaterally, jointly, and severally conduct all required

activities in accordance with an enforceable schedule. In December 2006 the parties reached an agreement to fund the remediation activities required by the DTSC's October 2006 order in the form of

The history of funding of the OHF cleanup is that budgeting and approval of the annual cleanup costs is not completed and paid until the end of the applicable year. The United States' share has been paid every year. 12

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Amendment 8 to the Cost-Sharing Agreement. As best understood, the remediation efforts are continuing under Amendment 8. The declaration of Lisa Decker provides an update: 15. Since briefing and argument on the United States' Motion in 2007, the City has continued to contribute to the clean up efforts. The City has paid a total of $3,632,771 of $14,576,692 in clean up costs, or 25 percent of the costs thus far. The United States and Boeing have paid the remainder.

(Decker Dec., Doc. 152, � 15.) Although the parties are not satisfied with scope and duration of funding, particularly as to the federal budgeting process, there has not been a formal breach of the cooperative agreement.8

B.

RCRA (Claim IV)

The RCRA is a comprehensive environmental statute that governs the treatment, storage, and disposal of solid and hazardous waste." Meghrig v. KFC W., Inc., 516 U.S. 479, 483 (1996) (citing Chicago v. Envtl. Def. Fund, 511 U.S. 328, 331-32 (1994)). Its purpose is

to minimize the present and future threat to human health and the environment, not effectuate the clean-up of toxic waste sites or allocate those costs. 483. 42 U.S.C. � 6902(b); Meghrig, 516 U.S. at

The RCRA provides for citizen suits to obtain a "mandatory

At oral argument on March 22, 2010, the Court clarified: "And the Court does not understand there to be a current breach, although it is always the case that federal funding, the federal government more often than not operates under continuing resolutions. There is always --- because of the nature of the federal FIFG [sic] and the budgeting process under the law, if you will, delay involved in the ultimate approval authority. But there hasn't been one year that the funding hasn't been approved and paid." (Reporter's Transcript ("RT"), March 22, 2010, 12:8-12:15.) 13

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injunction, i.e., one that orders a responsible party to `take action' by attending to the cleanup and proper disposal of toxic waste, or a prohibitory injunction, i.e., one that `restrains' a responsible party from further violating RCRA." Specifically, citizens can sue for Id. at 484. relief to

injunctive

enforce RCRA's provisions: against any person, including the United States,... who has contributed or who is contributing to the past of 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).

11 The SAC seeks an injunction compelling Defendants to "correct 12 the violations, including, but not limited to, investigating, 13 remediating, responding to, and removing the contamination released 14 from OHF, and for other actions as may be necessary to remedy the 15 violations committed by Defendants." 16 The United States contends that the City's RCRA claim fails 17 for four reasons: (1) the court lacks subject matter jurisdiction 18 over this claim pursuant to � 113(h) of CERCLA, (2) the claim is 19 moot because the City is asking the court to engage in an idle act 20 as the United States is in compliance with the remedial objectives 21 of the DTSC pursuant to the RAP; (3) under the primary jurisdiction 22 doctrine, 23 California is the appropriate forum for resolution of the City's 24 claims concerning the cleanup of the OHF; and (4) there is no 25 imminent and substantial endangerment at OHF as required by the 26 RCRA framework. 27 Plaintiff 28 14 rejoins that a number of factual developments the administrative forum provided by the State of (SAC � 133.)

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preclude summary judgment, chief among them that "the City has now determined that [...] TCP has leached into the City's water supply from OHF." (Doc. 150, 2:7-2:10.) According to the City, because

the current remediation efforts do not address TCP, each argument raised by the United States is unavailing.9 Even without the TCP

allegations, the City argues that summary judgment is inappropriate because the United States has failed to obtain or commit sufficient funds to continue the cleanup at OHF. The United States responds that the funding of the cleanup and the alleged introduction of TCP are irrelevant to the issues raised by its motion for three reasons. One, absent a showing of

"substantial and imminent danger to health or the environment," Plaintiff's TCP allegations have no legal effect. Two, the DTSC

has not ordered the parties to address TCP, therefore the United States is under no obligation to budget or spend money to remediate TCP from the OHF site. Three, the fact that small amounts of TCP

were allegedly detected in some city and county well "is irrelevant to whether the Court has subject matter jurisdiction over the RCRA claim."

1.

CERCLA � 113(h)

The substance of the United States' motion focuses on the jurisdictional bar contained in � 113(h) of CERCLA. In 1986,

Congress amended CERCLA to add � 113(h) which bars federal courts

A general background of TCP, as well as its alleged existence at or near OHF, is set forth in the declaration of Lisa Decker, counsel for the City of Fresno. (Decker Dec., Doc. 152, �'s 3-13.) 15

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from exercising jurisdiction over "any challenges" to removal or remedial environmental response actions taken pursuant to section 9604 of CERCLA, 46 U.S.C. � 104, while those response actions are ongoing. McClellan Ecological Seepage Situation ("MESS") v. Perry, 47 F.3d 325, 330 (9th Cir. 1995). The provision reads:

No Federal court shall have jurisdiction under Federal law ... to review any challenges to removal or remedial action selected under [CERCLA � 104], of this title, or to review any order issued under [CERCLA � 106]. 42 U.S.C. � 9613(h). Congress passed this section in order to protect "the

execution of a CERCLA plan during its pendency from lawsuits that might interfere with the expeditious cleanup effort." 47 F.3d at 329. McClellan,

Section 113(h) amounts to a "blunt withdrawal" of Id. The

jurisdiction from any challenges to a CERCLA cleanup.

Ninth Circuit has held that a lawsuit qualifies as a "challenge" under � 113(h), and is thus barred, if it is "directly related to the goals of the cleanup itself." Id.

The parties dispute whether the OHF clean up proceeds under the authority of � 104.10 The United States argues that the cleanup proceeds "pursuant to the CERCLA � 104 authority granted to it by the President in Executive Order 12,580 and under the DERP

statute."

According to the United States, this is an easy case:

the OHF cleanup is a � 104 cleanup at a formerly owned defense

Section 104 of CERCLA authorizes the President, in response to a release or threatened release of a hazardous substance, to "remove [the substance] or [...] provide for remedial action [...] or take any other response measure consistent with the national contingency plan [...] to protect the public health or welfare or the environment." 42 U.S.C. � 9604(a)(1). 16

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site, nothing else.

Plaintiff argues that the cleanup is being

undertaken pursuant to the authority of � 120 of CERCLA, 46 U.S.C. � 9620, and therefore is properly categorized as a � 120 clean up. Section 120 contains provisions applicable to cleanups on currently owned federal facilities and does not trigger � 113(h)'s

jurisdictional bar. Relying on Fort Ord Toxics Project, Inc. v. California EPA, 189 F.3d 828 (9th Cir. 1999), the City contends that the

remediation activities at OHF are proceeding pursuant to � 120, not � 104. The City, however, ignores Fort Ord's direction that � 120

covers only federal facilities, not privately owned ones, and the statutory language of � 120 itself.11 Fort Ord held that it was

"unclear whether the legislators who voted for 113(h) subjectively intended to allow immediate challenges to remedial actions at federal facilities even Id. while disallowing such challenges at

private facilities." remedial actions at

Fort Ord implies that challenges to facilities supposedly cleanups

private

pursuant to � 104 - are barred by � 113(h).

Here, there is no

dispute that OHF is privately owned by the City of Fresno and that the activities in question are "remedial activities." The remediation work at OHF is also carried out under the Defense Environmental Restoration Program, a federal statute which authorizes the Department of Defense to conduct remediation

activities on both currently owned DOD properties and formerly owned properties where the DOD was the owner, lessor, or possessor

Section 120's own terms apply to properties "owned or operated" by the federal government. The title of the heading in the legislation for � 120 is "Federal facilities." 17

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at the time of actions leading to contamination by hazardous substances. As for formerly owned DOD properties, the DERP statute authorizes the Formerly Used Defense Sites ("FUDS") program at 10 U.S.C. � 2701(c)(1)(B). Both parties here acknowledge that the

work at OHF is part of the FUDS program. Plaintiff argues that the Defense Environmental Restoration Program statute makes activities carried out under the statute subject to � 120 of CERCLA. It cites the DERP statute at 10 U.S.C.

� 2701(a)(2) that program activities "shall be carried out subject to, and in a manner consistent with, section 120 (relating to Federal facilities) of CERCLA." Plaintiff cites this section to

support its argument that the FUDS program operates under CERCLA � 120. Such an interpretation ignores the plain language of the

section, which specifically references � 120 as relating to federal facilities in parentheses. currently directing and DERP formerly Because the statute applies to both federal federal facilities, facilities the statute be

owned at

activities

should

implemented in a manner consistent with CERCLA � 120 activities, which also apply at federal facilities. argument, the DERP statute mandates According to Plaintiff's that all its authorized

activities be carried out under � 120, even those under FUDS that do not take place on federally owned properties. This makes little sense given that � 120 applies only to federal properties. The United States also references the language in the

cooperative agreement to support its contention that cleanup is performed pursuant to � 104. The cooperative agreement was

discussed in detail by United States' counsel at oral argument on December 3, 2007: 18

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What's on the screen now is a page from what's known as the cooperative agreement. This is the agreement between the plaintiff, the United States, and the State of California about how the cleanup was going to be done, basically. That's the simple version. And if we look under the heading of jurisdiction on page 5 of that agreement, we see that the �- it says that the National Guard Bureau and the U.S. Army Corps of Engineers enter into this agreement pursuant to CERCLA/SARA, the NCP, that's the National Contingency Plan required by CERCLA and promulgated by the EPA, Executive Order 12580 and DERP. And Your Honor, this is the same line of authority that's stemming from Section 104(a). Nothing -- no reference to Section 120. Of course, that wouldn't make sense to have a formerly used defense site cleaned up under Section 120. I'd like to direct your attention to another reference in this agreement, Your Honor, on page 10, what's been marked as paragraph (A)(I) [...] [t]his definition of the term USACE means the U.S. Army Corps of Engineers and also notes that it relates to the formerly used defense site, FUDS component of DERP, the Defense Environmental Restoration Program. It's apparent that this cleanup was going to involve a FUDS/DERP cleanup, and that again relates to Section 104(a) and Executive Order 12580 and not Section 120 [...] One final reference to the cooperative agreement, page 31. Under the heading of "Removal Action," I'm not going to read this, but on paragraph B, basically it's the same legal authority [discussed preciously] and subsection (c) even contains a reference to Section 104. Now this confirms what we've already seen in the other provisions of the agreement, and if this was a Section 120 cleanup, they would have been written much differently, and certainly the Section 104 reference wouldn't even be there. (Reporter's Transcript, December 3, 2007, 11:18-12:19, 13:23-14:6).

25 In rebuttal, the City emphasizes that the Court should give 26 great weight to recent factual developments "relating to activities 27 and operations conducted on currently owned federal facilities 28 19

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causing the contamination at issue that is triggering remediation activities." This argument incorporates the United States' current operations at AVCRAD and CANG, which are on/near the OHF. However, neither AVCRAD nor CANG is involved in any aspect of the OHF cleanup: Counsel: Now, when this agreement was signed, the National Guard had agreed to cleanup certain of its own currently owned federal property. Now that was pursuant to Section 120, that there were two federal areas that the guard was cleaning up. Not the Old Hammer Field. In the area of Old Hammer Field [...] [however] the current cleanup doesn't involve these properties at all. That's the �- the currently owned federal property is not involved in the cleanup. But it shows �- if we take that paragraph 6.3 on page 11 [of the cooperative agreement], it shows that the parties knew how to reference Section 120 when 120 was appropriate. It says that the National Guard are federal facilities under jurisdiction of the Secretary of Defense within the meaning of CERCLA Section 120 and SARA Section 211. In contrast, the formerly owned, not the currently federal facility property, but the former federal facility property is set out in Section 6.6 [of the cooperative agreement]. Old Hammer Field is a formerly used defense site, FUDS, and is subject to the Defense Environmental Restoration program. Now, this case only involves Old Hammer Field. There is no cleanup that the state has ordered on federal property. The National Guard has done that on its own property. It's not part of the case. And it's clear that the property at issue here was and is being cleaned up pursuant to DERPS and FUDS, and the authority for that comes from Section 104(a) as delegated through Executive Order 12580. (RT, December 3, 2007, 12:20-13:22.)

Court: 10 Counsel: 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

20

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Here, the City's arguments that "[t]here is no proof that the investigation and remediation activities at OHF are proceeding under the direction of the Department of Defense pursuant to Section 104 of CERCLA," are contradicted by the record. All

remediation efforts are taking place on City-owned property; the cleanup is proceeding under E.O. 12580 and the DERP statute, implicating � 104, not � 120. Moreover, while the United States

adequately explains the "consistent with � 120" issue, the City does not explain why the cooperative agreement cites E.O. 12580 and the DERP statute. In particular, the City does not address this

question: why would the cooperative agreement cite E.O. 12580 and the DERP statute if the cleanup was to proceed pursuant to � 120? At oral argument on March 22, 2010, the City again stressed the importance of the United States' admissions concerning its operation of the AVCRAD and CANG facilities at or near the OHF. According to Plaintiff, these admissions clearly demonstrate the cleanup is proceeding pursuant to � 120, not � 104: [The United States] admit[s] in their briefs, on this very issue, that those [properties] are subject to CERCLA section 120. If you look at the United States' initial motion [...] if you look at the cooperative agreement, section 5.1(k) [...] it all discusses section 120 authority applying to the currently operated federal facilities [...] And the critical issue, again, is that the United States admits that they are a federally - that they are operating pursuant to section 120, that they are a currently owned federal facility. Same with AVCRAD. And there's no dispute about that in the papers. (Reporter's Transcript, March 22, 2010, 18:22-19:7, 21:11-21:16.)

26 Plaintiff's arguments are unpersuasive. First, the undisputed 27 record points to a � 104 cleanup, not � 120. 28 21 Second, Plaintiff

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

overstates the United States' admissions concerning its AVCRAD and CANG operations. In the documents cited by Plaintiff, the United

States stated: "The Cooperative Agreement noted that there are only two areas that are currently under the jurisdiction, control, or custody of the U.S. Department of Defense: [CANG and AVCRAD]. These are the only portions subject to CERCLA Section 120. None of

the RAP-required cleanup activities will occur on these areas. All of the remedial work will take place on property that is not owned or operated by the federal government." 9.) Contrary do to not Plaintiff's support its (Doc. 45-2, pg. 14 at fn. the If government's anything, the

assertions, position.

admissions

statements weaken it.12 The case law is also contrary to the City's position. Pollack v. U.S. Dep't of Defense, 507 F.3d 522 (7th Cir. 2007) is most applicable. There, the Seventh Circuit held that � 113(h) barred

a lawsuit arising out of ongoing efforts to remediate an Illinois landfill located on property that used to be a U.S. Army base. Pollack reconciled Presidential authority under CERCLA, � 120, the National Priorities List, and the Fort Ord decision: Critically, � 120 does not provide a separate grant of authority for the President to initiate cleanups of federal sites or force private parties to do so. Hence a cleanup of a federally owned contaminated site must be initiated under �� 104 or 106, just like the cleanup of a privately owned site. There is a wrinkle. Section 120 may create authority to clean up a certain type of federally owned property that does not include the landfill that is the subject of this lawsuit. As noted above, the nastiest sites

The language used to incorporate � 120 - for the AVCRAD and CANG cleanup - differs from the language used in the OHF-RAP and Cooperative Agreement to remediate the OHF. 22

12

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in the country are listed on the National Priorities List and are to be cleaned up first thing. Section 120(e) requires the administrators of federal agencies that own property on this list to perform a remediation study and then to undertake any necessary remediation. Cleanup efforts of federal NPL Superfund sites therefore arguably are initiated under � 120, rather than �� 104 or 106. But there is no dispute that the landfill on the former Fort Sheridan is not on the National Priorities List, so � 120 does not provide any authority for initiating a cleanup of it. Such authority comes solely from �� 104 and 106, and so this challenge to the Fort Sheridan cleanup remains subject to the bar set out in � 113(h). This explains the Ninth Circuit's decision in Fort Ord Toxics Project, Inc. v. California EPA, on which Pollack relies. [Fort Ord] held that a cleanup of a federally owned site was indeed initiated under � 120. Since � 113(h) only blocks challenges to cleanups initiated under �� 104 or 106, the court ruled that the plaintiff's challenge was not subject to � 113(h) and could proceed. But the court noted that the property was listed on the NPL, and cited to � 120(e)'s grant of authority for cleaning such parcels. No other circuit has cited Fort Ord, but a district court confronting the same argument in the context of a non-NPL federal property - like Fort Sheridan in this case - concluded, correctly, we believe, that the cleanup was authorized by �� 104 or 106 rather than � 120, and was therefore subject to � 113(h). The Ninth Circuit conceded that its Fort Ord decision was `intuitively unappealing' and `troubling.' We need not agree or disagree with that court's conclusion that cleanups to federally owned sites on the NPL are initiated under � 120 and hence not subject to the bar of � 113(h) because this case does not concern an NPL property. Id. at 526 (citations omitted). Shea Homes Ltd. P'ship v. United States, 397 F. Supp. 2d 1194 (N.D. Cal. 2005) is also instructive. In dismissing Plaintiff's

RCRA claim for lack of subject matter jurisdiction, Shea Homes focused on whether the cleanup site was listed on the National Priorities List and whether there was EPA involvement: Importantly, it was undisputed in Fort Ord that the clean up at issue was a remedial action being conducted by the EPA pursuant to the grant of 23

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

authority created by � 120. The site at Ford Ord was placed by the EPA on the National Priorities List and the clean up was conducted pursuant to EPA's delegated authority through an interagency agreement between the EPA, the Army, and California state Agencies [...] In this case, however, the site at issue is not included on the National Priorities List and the EPA is not involved. As a result, authority to undertake the clean up has been delegated to the Secretary of Defense [pursuant to E.O. 12580 which delegates authority under � 104 to the Department of Defense] [...] As such [...] the response actions in this case were authorized by � 104 and thus are governed by � 113(h). Id. at 1203 (citations omitted). Applying Pollack, � 120 "merely supplements the existing CERCLA regime by bringing federal property owners up to the same standards as private owners; it does not create a separate system for the feds." Id. at 525. Under Pollack, � 120 does not provide

a separate grant of authority beyond the facts of Fort Ord.13 Assuming, arguendo, that AVCRAD and/or CANG changes the OHF to a "currently operated federal facility," the OHF would still be characterized as a "non-NPL federal property," not being remediated by the EPA, similar to Pollack and Shea Homes (two � 104 cases). This line of authority does not support the City's position. Here, the OHF is properly classified as a "non-NPL non-federal property," which on the spectrum of 113(h) cases is one degree from Pollack and Shea Homes (non-NPL federal property) and two degrees from Fort

Whether � 120 provides a separate grant of authority for the President to initiate cleanups of federal sites beyond the facts of Fort Ord need not be resolved here. It is enough to note the Seventh Circuit's analysis in Pollack, distinguish the facts of Fort Ord, and discuss the case law applying � 104 and � 120. 24

13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Ord (NPL federal property).14 The City relies on City of Moses Lake v. United States, 416 F. Supp. 2d 1015 (E.D. Wash. 2005), for the proposition that the "physical `location' of the remediation activities is immaterial to the analysis of whether contamination from a federal facility is driving the remediation." This is the City's best argument. Moses Lake held that the proposed plan was not a � 104 "removal" action, but a � 120 "remedial action," therefore Plaintiff was not

jurisdictionally barred from seeking a preliminary injunction. Id. However, Moses Lake is distinguishable on a number of grounds, namely that it was decided on a motion for preliminary injunction, involved a "plan for proposed remediation" not ongoing remediation, a prior agreement specifically referenced � 120's authority, the cleanup site was listed on the NPL, and there was EPA involvement: In October 1992, the EPA placed the former LAFB on the National Priorities List. And in 1999, the Department of the Army entered into an interagency agreement with the EPA concerning the preparation and performance of the RI/FS (Remedial Investigation/Feasibility Study) for the Moses Lake Wellfield Contamination Site. The IAG specifically states that the EPA and the Army enter into "this Agreement pursuant to their respective authorities contained in Sections 101, 104, 107, 120 and 122" of CERCLA [...] The EPA and the USACE are hereby PRELIMINARILY ENJOINED from formally issuing the proposed plan pending further order of this court. Within ten (10) days of the date of this order, EPA and the USACE shall make the proposed plan available to counsel for Moses Lake and all "relevant" Moses Lake officials involved in decision-making with regard to the Moses Lake Wellfield Contamination Site [...] Id. at 1021, 1027.

26 27 28 Like Shea Homes, the OHF is not listed on the NPL and the EPA is not involved with the current cleanup. 25
14

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The City fails to reconcile the relevant case law, including Pollack, Shea Homes, Moses Lake, and OSI, Inc. v. United States, 525 F.3d 1294 (11th Cir. 2008).15 They involved materially

different issues from the one in this case.

Pollack, Shea Homes

and OSI, Inc. dealt with whether 113(h)'s jurisdictional bar

OSI, Inc. v. United States, 525 F.3d 1294 (11th Cir. 2008) is also instructive: While [� 120's] discussion of federal facilities is extensive, we have searched the language of the section in vain for a general authorization for the federal government to engage in remedial actions on federal facilities. The only language approaching such a grant of authority is in [� 120(e)], which, as stated above, says a department "shall" engage in remedial investigation and action, but only after the site has been included on the NPL. Section [� 120] contains no language authorizing any remedial activity if the site is not listed on the NPL. It is undisputed that the OU-1 site has not been placed on the NPL. The only language authorizing remedial actions on such sites is found in [� 104], the language of which is broad enough to be read as an authorization for all remedial actions, regardless of the land upon which the action takes place. Therefore, we hold the Air Force's remedial action for OU-1, a federal facility not listed on the NPL, was "selected under"[� 104] and is subject to the jurisdictional bar of [� 113(h)] [...] Our view of [� 113(h)] for federal facilities not listed on the NPL comports with the view of the Seventh Circuit. The only other Circuit to address the jurisdictional bar for federal facilities and the source of authority for remedial actions is the Ninth Circuit in Fort Ord [...] which held challenges to federal site cleanups were not subject to [� 113(h)'s] jurisdictional bar. As the court in Pollack noted, however, Fort Ord is distinguishable because there the federal facility was listed on the NPL. Where a federal facility is not listed on the NPL, the only language authorizing remedial or removal actions is found in � 104. (Id. at 1298-99.) 26

15

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applied to federal facilities that were not listed on the NPL and/or did not involve the EPA. Conversely, Fort Ord and Moses

Lake dealt with a federal facility that was listed on the NPL and involved the EPA. The OHF is a non-NPL non-federal property with

no EPA involvement.16 The same reasoning applies to the City's most recent argument concerning TCP contamination. The City argues that because the

"current State-approved remedial action plan for OHF does not yet address TCP, [thus] there can be no challenge to it that would implicate Section 113(h)." Applying the City's reasoning, anytime

a new contaminant is alleged to be released on or near a current cleanup site - even if that site is privately owned and cleanup is proceeding under E.O. 12580 and/or DERP - � 113's jurisdictional bar is inapplicable.17 This not only would lead to an illogical

result, but also conflicts with the stated purpose of � 113(h). The ongoing City's arguments of a raise questions owned concerning federal how the is

remediation

formerly

property

impacted by the alleged discovery of a new contaminant. however, does not bring its TCP allegations and

The City,

AVCRAD/CANG

arguments within the authority of � 120.

The argument is weakened

Fort Ord is factually distinguishable as the lawsuit concerned contamination on federally owned property - an Army base - and "[i]n February 1990, Fort Ord was placed on the Environmental Protection Agency's National Priorities List." The City offers no legal support for its theory. In addition, on these facts, introduction and remediation of a new contaminant at the OHF site would necessarily involve the DTSC and RWQCB, as well as a "substantial and imminent" danger finding under the RCRA framework. The City does not develop these arguments as they relate to � 113(h)'s jurisdictional bar. 27
17

16

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by the City's request to "solely enforce the existing orders from DTSC and RWQCB," that do not discuss TCP or concern AVCRAD/CANG. The relevant case law, including Fort Ord, Pollack, Shea Homes, Moses Lake, and OSI, Inc., distinguishes the City's argument. Here, all the evidence points to the applicability of � 104: the language of the cooperative agreement; OHF is privately owned by the City of Fresno; OHF is not listed on the NPL; the EPA is not involved in the cleanup of OHF; and neither AVCRAD nor CANG is involved in any aspect of the OHF cleanup. Nor does the City

explain the specific inclusion of E.O. 12580 and DERP in the cooperative agreement (as opposed to the language re: the authority of � 120 to cleanup AVCRAD and KANG). The City's evidence is

insufficient to create a genuine dispute of material fact that CERCLA � 120 applies to the OHF cleanup and not � 104.

a.

Is There a Challenge under � 113(h)?

The City contends that even if the cleanup efforts at the OHF site are proceeding under � 104, the complaint is not a "challenge" to a cleanup plan that removes jurisdiction. The United States

responds that the City's RCRA cause of action constitutes such a challenge while the City contends that it does not. The City

claims that it is not attempting to challenge the cleanup because of "the presence of TCP in the groundwater." The proposed order

and SAC, however, show that the City requests compliance with RCRA as well as to enforce the terms of the cooperative agreements and DTSC orders. The City's arguments have been rejected by the Ninth Circuit in McClellan Ecological Seepage Situation ("MESS") v. Perry, 47 28

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

F.3d 325 and Razore v. Tulalip Tribes, 66 F.3d 236 (9th Cir. 1995). In MESS v. Perry, the Ninth Circuit took a broad view of the scope of � 113(h). There, the plaintiffs made an argument similar to

that advanced here: that their RCRA claim was not a "challenge" under � 113(h) because it was not attempting to delay or modify the remedy, but rather only sought to compel the defendant's compliance with RCRA's requirements. Id. at 330-31. The Court held that

while tangentially related claims, such as those to enforce minimum wage requirements, do not constitute a challenge under � 113(h), the plaintiffs' claim was "far more directly related to the goals of the cleanup itself." for "all practical Id. at 330. the The Court also concluded that plaintiffs Id. were effectively

purposes"

seeking to "improve" the clean up.

As such, it found that the Id.

plaintiff's claim was a "challenge" barred by � 113(h).

Shea Homes Ltd. P'ship v. United States, 397 F. Supp. 2d 1194, is also instructive. Citing McClellan, Shea Homes held that

the plaintiff's RCRA claim was related to the cleanup's goals and would interfere with the ongoing cleanup efforts: Here, [Plaintiff] also argues that it is merely seeking to enforce Defendant's compliance with applicable state laws and requirements. It is apparent, however, that it has a different view of what state law requires than does Defendant; otherwise it would have no purpose in seeking injunctive relief. Indeed, Plaintiff alleges that the Corps' response has not adequately contained or controlled the migration of landfill gas and that it should be `enjoined to abate the migration.' Plaintiff also contends, as noted above, that the Corps has made improper choices with respect to the timing of certain elements of the remedy. As such, the Court concludes that Plaintiff effectively seeks injunctive relief to "improve" the on-going clean up. As such, Plaintiff's RCRA claim is plainly related to the goals of the clean up-and would likely require some interference with on-going clean up plans. Accordingly, the RCRA claim constitutes a "challenge" for purposes of � 113(h), and must 29

1 2

therefore be dismissed for lack of jurisdiction. Id. at 1204 (citations omitted).

3 The City argues that it is "solely seeking to enforce the 4 existing orders from DTSC and RWQCB, not to second-guess or change 5 them." 6 exists because "the current State-approved remedial action plan for 7 OHF does not yet address TCP." 8 related to the proposed injunction relief - the proposed order does 9 not address TCP contamination. Here, the City's request to enforce 10 the existing DTSC and RWQCB orders - and their provisions to divide 11 the remediation into discrete tasks - constitutes a "challenge" 12 under McClellan and Shea Homes, as well as other Ninth Circuit 13 authority. 14 Dowdle, 71 F.3d 1469, 1482 (9th Cir. 1995) ("We held in Razore v. 15 Tulalip Tribes, that `[a]n action constitutes a challenge if it is 16 related to the goals of the cleanup.'"). 17 The City's fourth claim under RCRA is DISMISSED WITH PREJUDICE 18 for lack of subject matter jurisdiction pursuant to � 113(h) of 19 CERCLA. 20 21 2. 22 Because Defendant's summary judgment motion is barred by � 23 113(h) 24 concerning mootness, the primary jurisdiction doctrine, and whether 25 the 26 27 28 30 City has satisfied RCRA's "imminent and substantial of CERCLA, it is unnecessary to resolve the issues Imminent and Substantial Finding, Mootness, Primary JX See, e.g., Hanford Downwinders Coalition, Inc. v. It is unclear, however, how TCP is The City further argues that a genuine dispute of fact

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

endangerment" requirement.18 Assuming, arguendo, that � 113(h) does not bar the City's RCRA claim, it is unclear how the City demonstrates "credible evidence" to suggest than the current levels of TCP contamination create an imminent or substantial endangerment to health or the environment exists at or near the OHF.19 Moreover, the State of California,

Under the doctrine of primary jurisdiction, when certain issues or forms of requested relief require the resolution of matters that fall "beyond the conventional experience of judges" or are "within the realm of [...] an administrative agency with more specialized experience, expertise, and insight [than the judiciary]," a court may either stay the action until the agency has considered the issue, or may dismiss the claims altogether. United States v. Gabelli, 345 F. Supp. 2d 340, 350-51 (S.D.N.Y. 2004). This judicially created doctrine serves two primary interests. First, it allows the resolution of "technical questions of fact through an agency's specialized expertise prior to judicial consideration of the legal claims." Second, such deference ensures "consistency and uniformity in the regulation of an area" entrusted to an agency by the legislature through a regulatory scheme. Id. RCRA provides for citizen suits "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). Under this section, "[a]n endangerment can only be `imminent' if it `threatens to occur immediately.'" Meghrig v. KFC Western, Inc., 516 U.S. 479, 485 (1996) (quoting Webster's New International Dictionary of English Language 1245 (2d ed.1934)). "[T]his language `implies that there must be a threat which is present now, although the impact of the threat may not be felt until later.'" Id. (quoting Price v. United States Navy, 39 F.3d 1011, 1019 (9th Cir. 1994)). To show an "imminent and substantial" threat, the plaintiff must do more than establish the presence of solid or hazardous wastes at a site. Foster v. United States, 922 F.Supp. 642, 661 (D.D.C. 1996). Instead, "endangerment must [be shown to] be substantial or serious, and there must be some necessity for the action." Price, 39 F.3d at 1019. The fact that remedial activity in accordance with CERCLA has commenced at a site greatly reduces the likelihood that a threat to health or the environment is imminent. Christie-Spencer Corp. v. Hausman Realty 31
19

18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

through the DTSC and RWQCB, has oversight over the remediation and has the scientific and understanding alleged and resources necessary to the

investigate

remediate

hazards.

Conversely,

district court has neither the resources nor expertise necessary to properly address the scientific issues presented by an alleged imminent and substantial endangerment to health or the environment. These concerns are shared by a number of district courts throughout the United States. See West Coast Home Builders, Inc.

v. Aventis Cropscience USA Inc, No. 04-2225-SI, 2009 WL 2612380 (N.D. Cal. 2009) ("There are two fundamental problems with

plaintiff's RCRA claim [...] [f]irst, the Consent Order already requires GBF/TRC to clean up the groundwater contamination, and that remediation has been underway for years [] Plaintiff seeks relief that it is already obtaining outside of this lawsuit."); see also River Vill. W. LLC v. Peoples Gas Light and Coke Co., 618 F. Supp. 2d 847, 854-55 (N.D. Ill. 2008) ("Unlike the district court, the [agency] has been specifically charged with the

responsibility to develop and enforce regulations to implement the environmental laws passed by Congress [...] the district court's handling of this matter would be delayed by years if research and discovery which would be necessary to develop a basic understanding of the [contamination area and hazards presented]."); OSI, Inc. v. United States, 510 F. Supp. 2d 531 (M.D. Ala. 2007) ("OSI has presented no [] evidence to suggest that an imminent or substantial endangerment to health or the environment exists on OSI or

Government property.

Furthermore, the Government is conducting a

Co., Inc., 118 F. Supp. 2d 408, 419-23 (S.D.N.Y. 2000). 32

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

remediation

program

in

conjunction

with

ADEM

to

repair

any

contamination and resulting dangers that do exist [...] [t]hese two factors together lead the Court to conclude that the Government is entitled to summary judgment."); Davis Bros., Inc. v. Thornton Oil Co., 12 F. Supp. 2d 1333, 1338 (M.D. Ga. 1998) ("[P]laintiff has presented no credible evidence supporting a finding of imminent and substantial endangerment to health or the environment [...]

[m]oreover, the proposed remedy of injunctive relief is moot because Conoco has already agreed to remediate the site and pay for any costs associated with the cleanup, and the state is overseeing the cleanup more effectively than the court ever could. Thus, the

RCRA claim fails on the merits, and is also moot."). This language applies with equal force to this case.

C.

HSAA CLAIM

The United States argues that the Court lacks subject matter jurisdiction to hear the HSAA claim because the United States has not waived sovereign immunity. The City disagrees.

In enacting CERCLA, Congress "envisioned a partnership between various levels of government in addressing the complex and costly problems associated with hazardous waste remediation." Fireman's

Fund Ins. Co. v. City of Lodi, Cal., 302 F.3d 928, 940 (9th Cir. 2002). CERCLA specifically anticipates states enacting legislation addressing environmental remediation. the Carpenter-Presley-Tanner Id. at 942. Substance In California, Account Act

Hazardous

("HSAA"), Cal. Health & Safety Code � 25300 et seq., grants the DTSC authority to require the cleanup of sites within the state where chemical contamination represents a threat to human health or 33

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

the environment. CERCLA.

Id. at 934.

HSAA is the state law counterpart to

Foster-Gardner, Inc. v. National Union Fire Ins. Co. of

Pittsburgh, PA, 18 Cal.4th 857, 865 (1998); City of Lodi v. Randtron, 118 Cal. App. 4th 337, 351 (2004). Under HSAA, DTSC

oversees the cleanup of hazardous waste sites by issuing remedial orders and by entering into agreements with potentially responsible parties ("PRPs") to facilitate remediation efforts. Fund, 302 F.3d at 934. Fireman's

Both the federal and state statutes are

designed to: (1) achieve the complete and cost-effective cleanup of contaminated sites; and (2) provide a way to assign those costs to Id. at 945-46.

the parties responsible for the contamination.

Under CERCLA, departments and agencies of the United States are subject to liability to the same extent as any non-governmental entity. United States v. Shell Oil Co., 294 F.3d 1045, 1052-53

(9th Cir. 2002). Section 120(a)(1) explicitly waives the sovereign immunity of the United States with respect to CERCLA actions. Regarding state laws governing hazardous waste Id. �

response,

120(a)(4) of the CERCLA statute addresses their application to the federal government: State laws concerning removal and remedial action, including State laws regarding enforcement, shall apply to removal and remedial action at facilities owned or operated by a department, agency, or instrumentality of the United States ... when such facilities are not included on the National Priorities List. The preceding sentence shall not apply to the extent a State law would apply any standard or requirement to such facilities which is more stringent than the standards and requirements applicable to facilities which are not owned or operated by any such department, agency, or instrumentality. 42 U.S.C. � 9620(a)(4) (emphasis added). The law regarding waivers of the sovereign immunity of the 34

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

United States is straightforward.

Absent an express waiver, "the

activities of the federal government are free from regulation by any state." United States v. State of Wash., 872 F.2d 874, 877

(9th Cir. 1989) (quoting Mayo v. United States, 319 U.S. 441, 445 (1943). Any waiver of United States sovereign immunity must be United States Dep't of Energy

unequivocal; it cannot be implied.

v. Ohio, 503 U.S. 607, 615 (1992); State of Wash., 872 F.2d at 877. Such a waiver "must be construed strictly in favor of the sovereign and not enlarged beyond what the language requires." U.S. at 615 (citations and quotations omitted). Ohio, 503

Furthermore, only

Congress can waive the sovereign immunity of the United States. Cal. v. NRG Energy Inc., 391 F.3d 1011, 1023-24 (9th Cir. 2004); Tucson Airport Auth. v. Gen. Dynamics Corp., 136 F.3d 641, 644 (9th Cir. 1998). It must do so explicitly in statutory text. United

States v. Nordic Village, Inc., 503 U.S. 30, 37 (1992) ("[t]he `unequivocal expression' of elimination of sovereign immunity that we insist upon is an expression in statutory text."). To determine whether the United States waived its sovereign immunity under � 120(a)(4), it is necessary to harmonize the arguments advanced by the parties in the original briefing with those raised in the renewed motion. In 2007, the City argued

CERCLA � 120(a)(4) includes both facilities currently owned or operated by the United States, as well as those that were formerly owned or operated, such as OHF. was a "formerly operated According to the City, because OHF � 120(a)(4)'s waiver of

facility,"

sovereign immunity applies to OHF a