Nuclear Watch New Mexico v.United States Department of Energy et al

Filing 70

MEMORANDUM OPINION AND ORDER by District Judge Judith C. Herrera granting in part and denying in part 45 Intervenor New Mexico Environment Department's Second Motion to Dismiss, 47 Defendant United States Department of Energy's Motion to Dismiss the Second Amended Complaint and 48 Defendant Los Alamos National Security, LLC's Motions to Dismiss Plaintiff's Second Amended Complaint or Alternatively for Court Abstention. (baw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

NUCLEAR WATCH NEW MEXICO,
Plaintiff,
v.

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

UNITED STATES DEPARTMENT
OF ENERGY and LOS ALAMOS
NATIONAL SECURITY, LLC,
Defendants,
and
NEW MEXICO ENVIRONMENT
DEPARTMENT
Intervenor.

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).

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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. § 74-44(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 under

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subsection (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.

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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,

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The Court draws some of its factual background from exhibits outside of the pleadings.
Although the record is typically limited on a motion to dismiss, where, as here, a defendant
challenges subject matter jurisdiction pursuant to Rule 12(b)(1), a court may consider extraneous
exhibits. See supra, pp. 17-19.

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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
arsenic, barium, beryllium, cadmium, hexavalent chromium, copper, lead, mercury,
molybdenum, silver, and zinc; and polychlorinated biphenyls. Id.
In May 2002 NMED determined that the presence of hazardous waste at the Laboratory
presented an imminent and substantial endangerment to health or the environment, and ordered a
series of corrective tasks at the Laboratory. Id. ¶¶ 40, 41; 2005 Consent Order, Doc. 51-1 at 9.
This triggered nearly three years of litigation and settlement discussion between DOE, NMED,
and the Regents of the University of California (LANS’ predecessor). Compl. ¶ 39; 2005
Consent Order at 9-10. On March 2, 2005, NMED, DOE and the Regents of the University of
California entered into compliance on consent order (“2005 Order”). Compl. ¶ 41. Its stated
purpose was to determine the nature and extent of environmental contamination at the
Laboratory, to identify and evaluate alternatives for cleanup of environmental contamination,
and to implement cleanup. Id. NMED is statutorily authorized to enter into such consent orders

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whenever it determines that “any person has violated ... any requirement of the Hazardous Waste
Act, any rule adopted and promulgated pursuant to that act or any condition of a permit issued
pursuant to that act ….” N.M. Stat. Ann. 74-4-10. The 2005 Order’s issuance was preceded by a
30-day period of public review and comment of the proposed order. See 2005 Consent Order at
10. Although the parties at various times gave the public notice of the 2005 Order when it was in
its draft stage, see id. at 9-10, there is no record evidence that the 2005 Order’s issuance was
preceded by a public hearing.
The 2005 Order set forth 80 specific remedial tasks over a ten-year period for
investigating and cleaning up environmental contamination at the Laboratory. Compl. ¶ 44; 2005
Consent Order at 23-37. Under the 2005 Order DOE and LANS could seek NMED’s permission
to extend deadlines to complete these tasks, but only on a showing of “good cause.” Compl. ¶ 45.
Following this scheme, NMED extended numerous corrective task deadlines for good cause.
However, in this lawsuit Plaintiff identifies 13 tasks whose deadlines NMED did not extend for
good cause – including submission of numerous completion reports, investigation schedule
reports, and groundwater monitor installation plans – thereby “leaving no factual doubt as to the
existence of any of these violations.” Id. ¶¶ 45, 54-99. The latest deadline associated with a
corrective task was December 6, 2015. 2005 Consent Order at 36. On that date, a remedy
completion report for MDA G was due. Id. According to Plaintiff, December 6, 2015 represented
a “final compliance date” for completion of all corrective action.2 Compl. ¶ 105.

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Defendants assert that there is no “final compliance date” in the 2005 Order. According to
Defendants, Plaintiff found the last date in the compliance schedule, December 6, 2015, and then
extrapolated that date as the final completion date for all corrective activity. Defendants contend
that this is a “Plaintiff-created fiction” that does not exist in the 2005 Order or its implementing
regulation.

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The 2005 Order also laid out rules for its modification. See 2005 Consent Order at 16.
Those rules essentially allowed the 2005 Order to be modified but, depending on the nature of
the modification, required DOE and LANS to give public notice and provide the public an
opportunity to comment. See id. at 16, 21; 20.4.1.900 NMAC (adopting 40 C.F.R. Part 270
(2017)). There are three classes of modification requests – Class 1, Class 2 and Class 3 – and
each type has corresponding procedural requirements. As relevant here, if the requested
modification is a Class 3 request, then it requires the most extensive procedures. An example of a
Class 3 request is an “extension of a final compliance date” of the order’s compliance schedule.
See 40 C.F.R. § 270.42, App. I. Thus, if the DOE and NMED made a Class 3-type request to
modify the 2005 Order, NMED was required to provide “an opportunity for a public hearing at
which all interested persons shall be given a reasonable chance to submit data, views or
arguments orally or in writing and to examine witnesses testifying at the hearing.” N.M. Stat.
Ann. § 74-4-4.2(H). A public hearing is an adversarial proceeding held before a hearing officer.
See 20.4.1.901(F) NMAC.
Regarding enforcement, the 2005 Order incorporated RCRA citizen suit enforcement
provisions under § 6972(a)(1)(A). More specifically, the 2005 Order stated that “each
requirement of this Consent Order is an enforceable ‘requirement’ … of RCRA within the
meaning of” § 6972(a)(1)(A) that allowed RCRA-style permitting violation claims to be brought
against the parties if the were “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). See 2005 Consent Order at 20.
Outside events eventually prompted NMED and DOE to reconsider aspects of the 2005
Order. In June 2011, the Las Conchas wildfire’s dangerous encroachment near the Laboratory

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prompted NMED to request of DOE that it prioritize the removal of high risk, above ground
transuranic waste located within TA-54 at the Laboratory. Framework Agreement, Doc. 51-6 at
2. DOE agreed, and in 2012 the parties entered into a non-binding agreement to realign waste
management priorities called the “Framework Agreement: Realignment of Environmental
Priorities.” Id. In the course negotiating that agreement, DOE stated that meeting the milestones
of the 2005 Order was difficult because of past and anticipated funding shortfalls, and the parties
agreed to renegotiate the 2005 Order at a future date. 2016 Consent Order, Doc. 47-3 at 10; see
id., Doc. 51-5 at 9.
Skipping forward to March 20, 2016, roughly four years after DOE and NMED signed
the 2012 Framework, NMED posted on its website a draft consent order to “supersede” the 2005
Order and accepted public comments on the draft order on its website until May 31, 2016.
Compl. ¶ 48. Plaintiff commented on the draft order, remarking among other things that under
the 2005 Order’s modification rules, NMED was required to hold a public hearing on the draft
order so that members of the public could present testimony and cross-examine witnesses. Id. ¶
49. NMED never did hold a public hearing though, and eventually it and DOE executed the draft
order in June 2016. Id. ¶ 50. The new order (“2016 Order) expressly stated that it “supersede[d]
the 2005 Compliance Order on Consent (2005 Consent Order) and settle[d] any outstanding
alleged violations under the 2005 Consent Order,” id. ¶ 51, and that it “encompasse[d] all scope
included within the 2005 Consent Order, including that which has already been completed and
that which has been identified subsequent to the effective date of the 2005 Consent Order.” 2016
Consent Order, Doc. 51-5 at 7. A central feature of Plaintiff’s lawsuit is that by executing the
2016 Order Defendants unlawfully extended numerous final compliance dates contained in the

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2005 Order, which amounted to Class 3 modifications for which Defendants never held a public
hearing.
The 2016 Order dispensed with the 2005 Order’s waste clean-up schedule and replaced it
with a new remediation process called a “campaign approach.” Id., Doc. 31-1 at 26. Under that
approach, “corrective action activities required by this [the 2016 Order] [would] be organized
into campaigns, generally based upon a risk-based approach to grouping, prioritizing, and
accomplishing corrective action activities … [c]ampaigns, projects, tasks, and deliverables may
be subject to two types of deadlines: milestones, which are enforceable; or targets, which are not
enforceable.” Id. According to DOE, under the 2016 Order, the parties agree on enforceable
“milestones” for the current fiscal year, and set unenforceable “targets” for the subsequent two
years. DOE’s Mot. to Dismiss at 6. There are 15 future campaigns under the 2016 Order, five of
which are in progress. 2016 Consent Order, Doc. 47-3 at 53-56. According to Plaintiff, unlike the
2005 Order, the 2016 Order does not contain a schedule for completion of corrective tasks or a
final deadline for completion of all corrective action. Compl. ¶ 52. It instead allows NMED and
DOE to meet and negotiate remediation schedules for the next fiscal year, suggesting that it gives
them leeway to delay corrective tasks, whereas the 2005 Order firmly held DOE’s and LANS’
feet to the fire. Id.
Finally, Plaintiff claims that its executive director, Jay Coghlan, has a personal interest in
the remediation of environmental contamination at the Laboratory. Id. ¶ 4. He is an avid hiker
and rock climber and used to enjoy those activities in the surrounding canyons and cliffs,
adjacent Bandelier National Monument and Sandia National Forests, and in the nearby town of
White Rock, New Mexico. Id. However, Mr. Coghlan no longer rock climbs in a canyon
downstream from the Laboratory because he believes that a variety of dangerous pollutants from

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the Laboratory’s legacy waste are contained in the canyon’s intermittent streambed. Id. Plaintiff
contends that if the Court orders LANL to remediate legacy waste more quickly and on a definite
schedule, Mr. Coghlan could again enjoy recreational use of the area without concern for his
health. Id.
Procedural Matters
Frustrated by the remediation task delays under the 2005 Order, in January 2016 Plaintiff
sent DOE and LANS a RCRA notice of intent to sue letter (“RCRA notice letter” or “RCRA
notice”) for their failure to submit a remedy completion report for MDA-G due on December 6,
2015 under the 2005 Order’s schedule. January 2016 RCRA Notice Letter, Doc. 51-2 at 3. Then
Plaintiff sent a second RCRA notice letter on May 5, 2016 identifying 12 other remediation tasks
that DOE and LANS allegedly violated. Seven days later, on May 12, 2016, Plaintiff filed this
federal lawsuit alleging two RCRA claims against DOE and LANS for their failure to complete
the 13 remediation tasks identified in the two RCRA notice letters, and sought declaratory and
injunctive relief ordering them to do so.
NMED intervened. Doc. 25. Then, in June 2016, DOE and NMED executed the 2016
Order, which stated that it superseded the 2005 Order that was the basis of Plaintiff’s RCRA
notice letters and its lawsuit.
As a result of the intervening 2016 Order, Plaintiff sought to amend its complaint to
challenge the new order’s validity for allegedly failing to comply with modification rules
requiring public involvement. On July 15, the parties filed a stipulated motion requesting new
deadlines, giving Plaintiff until July 19, 2016 to file its amended complaint and Defendants until
August 31, 2016 to answer, which the Court approved. Doc. 28. According to plan, on July 19
Plaintiff filed its First Amended Complaint, which re-alleged the content of its original

11

complaint, plus sought a declaratory judgment that the 2016 Order was invalid. On August 31,
2016, Defendants responded by filing motions to dismiss under Rule 12(b). Then, 21-days later,
Plaintiff (without leave of court or consent of the parties) filed a Second Amended Complaint,
doubling the number of counts. Defendants renewed their 12(b) motions against the Second
Amended Complaint.
Counts I and II of Plaintiff’s Second Amended Complaint are based on 13 violations of
corrective tasks under the 2005 Order that DOE and LANS failed to complete. Plaintiff contends
that they are jointly liable for an injunction ordering them to complete the unresolved corrective
tasks and to pay $37,500 in civil penalties for each day they have not complied with those
deadlines. See Compl. ¶¶ 53-99. LANS and DOE allegedly failed to complete the following 13
corrective tasks under the 2005 Order:












Submission to NMED of a Remedy Completion Report for MDA A at TA-21 due June
18, 2014. Id. ¶ 54.
Submission to NMED of an Investigation Report for the Cañon de Valle Aggregate Area
at TA-15 due July 2, 2014. Id. ¶ 57.
Installation of Well R-65 and submission of an accompanying Well Completion Fact
Sheet due by June 30, 2014 and a Well Completion Report due November 30, 2014. Id.
¶¶ 60-62.
Submission to NMED of an Investigation Report for the Lower Pajarito Canyon
Aggregate Area due July 31, 2014. Id. ¶ 65.
Submission to NMED of an Investigation Report for the Twomile Canyon Aggregate
Area due August 30, 2014. Id. ¶ 68.
Submission to NMED of an Investigation Work Plan for the Lower Water/Indio Canyon
Aggregate Area due September 30, 2014. Id. ¶ 71.
Submission to NMED of an Investigation Report the Cañon de Valle Aggregate Area at
TA-16 due December 15, 2014. Id. ¶ 74.
Submission to NMED an Investigation Report for the Upper Water Canyon Aggregate
Area due December 31, 2104. Id. ¶ 77.
Submission to NMED an Investigation Report for the Starmer/Upper Pajarito Canyon
Aggregate Area due December 31, 2014. Id. ¶ 80.
Installation of Well R-26i by December 31, 2014 and an accompanying Well Completion
Summary Fact Sheet and Well Completion Report. Id. ¶¶ 83-85.
Submission to NMED of a Remedy Completion Report for MDA AB, Areas 1, 3, 4, 11,
and 12 due February 3, 2015. Id. ¶ 88.

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


Submission to NMED of an Investigation Report for the Chaquehui Canyon Area due
March 3, 2015. Id. ¶ 91.
Submission to NMED of a Remedy Completion Report for MDA G at TA054 due
December 6, 2015. Id. ¶ 96.
Count III is also based on violations of the 2005 Order. Plaintiff alleges that NMED

unlawfully modified the 2005 Order by granting DOE and LANS extensions to complete
numerous corrective tasks beyond the December 6, 2015 final compliance date. NMED’s
extensions of 13 corrective tasks—including borehole installations, tracer deployments,
investigative and remedy completion reports, work plans, etc.—beyond December 6, 2015
amounted to a Class 3 modification request, requiring public involvement. Because DOE and
LANS never included the public, Plaintiff asks the Court to enjoin Defendants from
“implementing, or continuing to implement, any of the extensions and deferrals … until NMED
first conducts a public hearing on the extensions.” Prayer for Relief, Doc. 42, ¶ 3. Similarly,
Count IV alleges that the 2016 Order itself, because it has no final compliance date, violated the
2005 Order. According to Plaintiff, “a change of a final compliance date from a date certain to
no date at all is an extension of the final compliance date, and therefore a ‘Class 3’
modification.” Compl. ¶ 135. Count V requests federal and state declaratory judgments under 28
U.S.C. § 2201 and N.M. Stat. Ann. 44-6-15 that NMED’s timeline extensions under the 2005
Order were invalid. Under these same statutes, Count VI seeks federal and state declaratory
judgment that Defendants unlawfully issued the 2016 Order by not following public notice
requirements. Count VII asks for litigation costs.
In its Prayer for Relief, Plaintiff requests declaratory and injunctive relief, asking the
Court to make Defendants stop implementing the 2016 Order, and start implementing the 2005
Order on “reasonable but aggressive schedule by the Court”; to discontinue extensions in the

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2005 Order; and requests civil penalties of $37,500 for each day Defendants have violated the
2005 Order. See Prayer for Relief, ¶¶ 1-6.
A. Plaintiff’s Second Amended Complaint is the Operative Complaint
Before turning to the merits, the Court must first examine which of Plaintiff’s two
amended complaints is properly before the Court. LANS and DOE characterize Plaintiff’s First
Amended Complaint as its one “as a right amendment” under Fed. R. Civ. P. 15(a)(1). They
therefore believe that Plaintiff was required to seek the Court’s leave to file its Second Amended
Complaint under Rule 15(a)(2), necessitating the Court’s analysis of which amended complaint
governs this case.
Rule 15(a) provides:
(1) Amending as a Matter of Course. A party may amend its pleading once as a
matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is required, 21
days after service of a responsive pleading or 21 days after service of a
motion under Rule 12(b), (e), or (f), whichever is earlier.
(2) Other Amendments. In all other cases, a party may amend its pleading only
with the opposing party’s written consent or the court’s leave ….
Fed. R. Civ. P. 15(a).
The typical case is where a plaintiff files its one matter of course amendment under
15(a)(1) and then seeks consent from the opposing party or leave of court to file a second
amended complaint under 15(a)(2). Here, the reverse occurred: Plaintiff filed its First Amended
Complaint with Defendants’ consent, i.e. under 15(a)(2) as an “other amendment,” and now
Plaintiff attempts to use its one as of right amendment under 15(a)(1) to file its Second Amended

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Complaint. Plaintiff stresses that Rule 15 gave it an “absolute right” to amend its complaint
within 21-days of service of Defendants’ 12(b) motions.
Various authorities suggest that Plaintiff is correct. As a starting point, the United States
Court of Appeals for the Tenth Circuit and other circuits have noted that “Rule 15(a)
guarantee[s] a plaintiff an absolute right to amend its complaint once at any time before the
defendant has filed a responsive pleading.” Am. Bush v. City of Salt Lake, 42 F. App’x 308, 310
(10th Cir. 2002); accord James V. Hurson Assocs., Inc. v. Glickman, 229 F.3d 277, 383-83 (D.C.
Cir. 2000); Ramirez v. Cnty. of San Bernardino, 806 F.3d 1002, 1007 (9th Cir. 2015) (Rule 15
“expressly declar[es] … a ‘right’ to amend upon parties.”). Moreover, the rule is “organized
substantively, not chronologically” and “does not prescribe any particular sequence for the
exercise of its provisions.” Ramirez, 806 F.3d at 1007. Recognizing this, district courts within
the Tenth Circuit have held that a plaintiff preserves its as of right amendment under 15(a)(1)
even if the plaintiff obtained previous amendments through a different provision of Rule 15. See
e.g. Thompson v. Jiffy Lube Int’l, Inc., 505 F. Supp. 2d 907, 913 (D. Kan. 2007) (plaintiff
allowed to file second amendment as of right under 15(a)(1) although plaintiff made its first
amendment with court’s leave under 15(a)(2)).
Although LANS and DOE characterize Plaintiff’s First Amended Complaint as its one as
of right amendment, this is incorrect because that amendment was accomplished by a stipulation
between the parties, making it an “other amendment” under 15(a)(2). Just because Plaintiff’s first
amendment was accomplished under 15(a)(2) does not mean, as LANS and DOE suggest, that
Plaintiff waived its as of right amendment under 15(a)(1). Again, the rule “does not prescribe
any particular sequence for the exercise of its provisions.” Ramirez, 806 F.3d at 1007. Therefore,
the question is whether Plaintiff complied with the timing strictures of the rule itself.

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Under Rule 15, “a plaintiff has the right to amend within twenty-one days of service of
the complaint (15(a)(1)(A)), or within twenty-one days of service of a motion under 12(b) …
whichever comes first (15(a)(1)(B)).” Ramirez, 806 F.3d at 1008. Plaintiff followed these rules.
As recounted above, Plaintiff filed its First Amended Complaint on stipulation as an “other
amendment” under 15(a)(2). Defendants responded to that complaint by filing 12(b) motions on
August 31, 2016. Then, within 21-days, Plaintiff filed its Second Amended Complaint. Plaintiff
had the right to amend within 21-days of service of these motions, and did not need Defendants’
consent or the Court’s leave to file its Second Amended Complaint. That amendment was made
as of right. Consequently, “an amended complaint supercedes an original complaint and renders
the original complaint without legal effect.” Mink v. Suthers, 482 F.3d 1244, 1254 (10th Cir.
2007). Plaintiff’s Second Amended Complaint is the operative document in this case.
B. RCRA Notice and Delay Provisions
RCRA has somewhat complex notice of intent to sue rules that LANS asserts Plaintiff did
not fulfill. 42 U.S.C. § 6972(b)(1) requires a plaintiff to give a defendant notice of intent to sue,
and then wait 60 days before filing a lawsuit. It states: “[n]o action may be commenced under
[RCRA’s citizen suit provision] ... prior to 60 days after the plaintiff has given notice of the
violation to—(i) the Administrator; (ii) the State in which the alleged violation occurs; and (iii)
to any alleged violator of such permit, standard, regulation, condition, requirement, prohibition,
or order.” 42 U.S.C. § 6972(b)(1)(i)-(iii). RCRA notice is jurisdictional, and absent compliance
with a required notice provision, a court lacks subject matter jurisdiction to hear the RCRA
claims.3 See Covington v. Jefferson Cty., 358 F.3d 626, 636 (9th Cir. 2004).

3

A second jurisdictional bar on RCRA suits exists where a responsible state or federal agency
diligently pursues judicial actions against alleged polluters under RCRA. See 42 U.S.C. §
6972(b)(1)(B), (b)(2)(B), (b)(2)(C). This is called the “diligent prosecution bar.” Plaintiff

16

However, in some instances a plaintiff need not delay in bringing a lawsuit. A suit “may
be brought immediately … respecting a violation of subchapter III.” 42 U.S.C. §
6972(b)(1)(A)(iii). Essentially, “Congress put aside notice requirements when plaintiffs allege
violations of RCRA that involve presence of or mishandling of hazardous waste.” Covington,
358 F.3d at 638. “[A] subchapter III claim regarding hazardous waste renders the required postnotice waiting period inapplicable to all of a plaintiff’s RCRA claims.” Id. See also Bldg. &
Const. Trades Council of Buffalo, New York & Vicinity v. Downtown Dev., Inc., 448 F.3d 138,
154 (2nd Cir. 2006) (“if a plaintiff files a complaint alleging a RCRA subchapter III violation, …
which frees a plaintiff from the otherwise applicable statutory delay periods, and if the complaint
also alleges other ‘closely related’ violations, then … the plaintiff [may] [] proceed with the nonsubchapter III claims without waiting for the expiration of the notification period.”).
LANS asserts that Plaintiff did not serve RCRA notice for Counts I, III and V, thereby
depriving the Court of subject matter jurisdiction over those counts. Plaintiff argues that it was
excused from RCRA’s notice and delay rules because it alleged subchapter III claims, meaning it
could immediately package its subchapter III and non-subchapter III claims together in one
complaint. Although the parties dispute whether Plaintiff’s original complaint complied with
RCRA’s notice and delay rules, that complaint no longer exists because it has been superseded.
As described earlier, Plaintiff’s Second Amended Complaint is before the Court. The sole issue
then is whether Plaintiff’s Second Amended Complaint, filed on September 21, 2016, alleged
subchapter III violations such that Plaintiff may bring its subchapter III and non-subchapter III
claims in one complaint without delay. The Court finds that Plaintiff properly brought all of its

devoted time arguing that this jurisdictional bar does not apply. However, Defendants never
raised the diligent prosecution bar as a ground for dismissal. The Court acknowledges Plaintiff’s
briefing on this matter, but it is not a disputed issue before the Court.

17

claims together in one complaint. Counts I and II alleged numerous subchapter III violations for
LANS’ and DOE’s failure to complete 13 corrective tasks, and Plaintiff specifically pointed to a
provision of subchapter III itself. Cf. Bldg. & Const. Trades Council of Buffalo, 448 F.3d at 155
(dismissing complaint as where it fail[ed] to specify any of the provisions of subchapter III itself,
… or to allege explicitly a violation of any of the regulations promulgated thereunder.”). As
stated earlier, “a subchapter III claim regarding hazardous waste renders the required post-notice
waiting period inapplicable to all of a plaintiff’s RCRA claims.” Covington, 358 F.3d at 638.
Counts III and V are non-subchapter III violations, but Plaintiff did not have to provide notice or
wait to bring those counts. Accordingly, the Court rejects LANS’ argument that Plaintiff did not
fulfill RCRA’s notice and delay provisions, and determines that it has subject matter jurisdiction
over Counts I, III, and V.
Subject Matter Jurisdiction
A. Standards of Review
All Defendants move to dismiss the Second Amended Complaint under Fed. R. Civ. P.
12(b)(1), asserting that this Court lacks subject matter jurisdiction over Plaintiff’s RCRA claims
for several reasons. In addition, Defendants claim that this Court lacks subject matter jurisdiction
over Plaintiff’s New Mexico state law claims for declaratory and injunctive relief because no
federal question is involved, there is not complete diversity between the parties, and the state law
claims do not appropriately invoke the Court’s supplemental jurisdiction.
i.

Analysis of 12(b)(1) Motion

A plaintiff bears the burden of proving that subject matter jurisdiction exists. See New
Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th Cir. 1995). When a
defendant challenges subject matter jurisdiction pursuant to Rule 12(b)(1), the challenge can take

18

two forms: facial or factual. See Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). In a
factual challenge, the movant goes “beyond allegations contained in the complaint [to] challenge
the facts upon which subject-matter jurisdiction depends. Id. at 1003. In this case, the
Defendants’ challenge is factual, since Defendants contend, among other things, that the 2016
Order superseded the 2005 Order, rendering Plaintiff’s complaints arising from the 2005 Order
moot, a fact that would deprive the Court of subject matter jurisdiction. In reviewing Defendants’
factual challenges to subject matter jurisdiction, “the district court may not presume the
truthfulness of the complaint’s factual allegations.” Id. “A court has wide discretion to allow
affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional
facts under Rule 12(b)(1).” Id. “In such instances, a court’s reference to evidence outside the
pleadings does not convert the motion to a Rule 56 motion.” Id. In reviewing a factual subject
matter jurisdiction attack, the court may weigh the evidence and find facts. See Arbaugh v. Y&H
Corp., 546 U.S. 500, 514 (2006) (“if subject-matter jurisdiction turns on contested facts, the trial
judge may be authorized to review the evidence and resolve the dispute on her own.”).
ii.

Analysis of 12(b)(6) Motion

Defendants NMED and LANS also move to dismiss the Plaintiff’s action under Fed. R.
Civ. P. 12(b)(6). To survive a motion to dismiss under Rule 12(b)(6) “a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, (2009). Generally, when ruling on a 12(b)(6) motion, the court
assumes that the facts alleged in the complaint are true and draws all reasonable factual
inferences in the nonmoving party’s favor. Sylvia v. Wisler, 875 F.3d 1307, 1313–14 (10th Cir.
2017). A complaint need not provide “detailed factual allegations,” but it must “provide the
grounds of [the plaintiff’s] entitlement to relief” with “more than labels and conclusions” or “a

19

formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. In contrast
to ruling on a Rule 12(b)(1) motion, “[g]enerally, a court considers only the contents of the
complaint when ruling on a 12(b)(6) motion.” Berneike v. CitiMortgage, Inc., 708 F.3d 1141,
1146 (10th Cir. 2013). However, the court can properly consider “documents incorporated by
reference in the complaint[] [and] documents referred to in and central to the complaint, when no
party disputes its authenticity ….” Id. In addition to exhibits incorporated by reference and ones
that are central to the complaint and authentic, on a 12(b)(6) motion the court may also examine
“matters of which a court may take judicial notice.” Id.
Numerous exhibits outside of the pleadings totaling nearly 400 pages of documents are
before the Court. LANS’ Motion contains six exhibits that includes excerpts from the 2005 and
2016 Consent Orders; Plaintiff’s RCRA notice of intent to sue letters; excerpts of a letter
Plaintiff sent to NMED commenting on the 2016 CO; and a letter titled “Framework Agreement:
Realignment of Environmental Priorities” entered into by NMED and DOE. DOE’s Motion
includes two exhibits, the 2005 and the 2016 Consent Orders, both of which are lengthy and
voluminous documents. NMED’s motion includes one exhibit, the entire 2016 Order. In deciding
whether subject matter jurisdiction exists, the Court need not attach presumptive truthfulness to
the facts alleged in the Second Amended Complaint and may consider all the attached exhibits
without converting the motions to motions for summary judgment.
In the alternative, NMED and LANS move this Court to dismiss Counts III, IV, V, and
VI of the Second Amended Complaint under 12(b)(6). To the extent that this Court finds that
subject matter jurisdiction exists over these Counts, the Court’s consideration of the 12(b)(6)
motion will be limited to the pleadings and to exhibits that are incorporated by reference in the

20

Second Amended Complaint or ones that are central to the Second Amended Complaint and
authentic, or matters of which the Court may take judicial notice.
B. Standing
LANS asserts that Plaintiff lacks standing to bring this lawsuit. “Standing doctrine
addresses whether, at the inception of the litigation, the plaintiff had suffered a concrete injury
that could be redressed by action of the court.” WildEarth Guardians v. Pub. Serv. Co. of
Colorado, 690 F.3d 1174, 1182 (10th Cir. 2012). The standing requirement comes from the
requirement in Article III of the United States Constitution that a “case or controversy” exist
before a federal court can hear a case. U.S. Const. art. III, § 2, cl. 1. “The crucial question is
whether granting a present determination of the issues offered will have some effect in the real
world.” Wyoming v. United States Department of Agriculture, 414 F.3d 1207, 1212 (10th Cir.
2005). An organization can sue based on injuries to itself or to its members. See United Food
and Commercial Workers v. Brown Group, 517 U.S. 544, 577 (1996).
In this case, Plaintiff seeks to represent the interests of its members. Accordingly, the
Court must determine whether Plaintiff meets the requirements for standing to bring a RCRA
citizen suit on behalf of its members against Defendants. “An association has standing to bring
suit on behalf of its members when its members would otherwise have standing to sue in their
own right, the interests at stake are germane to the organization’s purpose, and neither the claim
asserted nor the relief requested requires the participation of individual members in the lawsuit.”
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000). To
satisfy the first requirement for associational standing – that an individual member of the
association has standing to sue in their own right – a plaintiff must show that at least one
individual member of that association meets the following requirements: (1) he or she has

21

“suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical”; (2) his or her injury is “fairly traceable to the challenged action of
the defendant”; and (3) “it is likely, as opposed to merely speculative, that [his or her] injury will
be redressed by a favorable decision.” Laidlaw, 528 U.S. at 180–81 (citing Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560–61 (1992)). LANS disputes all aspects of the associational and
individual standing requirements. However, the two requirements that “the interests at stake are
germane to the organization’s purpose, and neither the claim asserted nor the relief requested
requires the participation of individual members in the lawsuit,” Laidlaw, 528 U.S. 167, 181
(2000), are handily met. First, Plaintiff’s mission is to promote environmental protection and
cleanup at nuclear facilities and thus its interest in filing this lawsuit is germane to its purpose.
Second, LANS has made no argument that this lawsuit would require the participation of any
individual member of Nuclear Watch.
Concerning injury in fact, “environmental plaintiffs adequately allege injury in fact when
they aver that they use the affected area and are persons for whom the aesthetic and recreational
values of the area will be lessened by the challenged activity.” Laidlaw, 528 U.S. at 183. Here,
Plaintiff has shown injury in fact by maintaining that Mr. Coghlan, its executive director, hiked
and rock climbed in the adjacent national monuments, forests, and towns, and that his ability to
do so has been impaired by LANS’ and DOE’s discharge of legacy waste into downstream
canyon and its streambeds. This sort of recreational impairment constitutes injury in fact.
The next question is whether Plaintiff’s injury is fairly traceable to LANS’ and DOE’s
conduct. To satisfy the traceability requirement, the defendant’s conduct must have caused the
injury. Lujan, 504 U.S. at 560. Plaintiff contends that a variety of dangerous pollutants from the
Laboratory’s legacy waste are contained in a downstream canyon and its intermittent streambed,

22

that water supply wells in Los Alamos County and on San Ildefonso Pueblo property withdraw
water from the regional aquifer beneath the Pajarito Plateau, and Mr. Coghlan stopped climbing
in the area immediately adjacent to the Laboratory because of the area’s dangerous quality. The
2005 Order itself states that DOE and the Regents of the University of California “have
discharged industrial wastewater and other waste from outfalls into many of the canyon systems
at the [Laboratory].” Doc. 51-1, p. 6. These facts sufficiently demonstrate that Mr. Coghlan’s
injury is fairly traceable to DOE’s and LANS’ actions. Plaintiff has standing.
To analyze the redressability requirement of standing, the Court next examines the
interrelated doctrine of mootness.
C. Mootness
Constitutional mootness, “like standing, is a jurisdictional doctrine originating in Article
III’s ‘case’ or ‘controversy’ language.” WildEarth Guardians, 690 F.3d at 1181-82. “Mootness
usually results when a plaintiff has standing at the beginning of a case, but, due to intervening
events, loses one of the elements of standing during litigation; thus, courts have sometimes
described mootness as ‘the doctrine of standing set in a time frame.’” Id. The defendant bears the
burden to show mootness. Id. at 1183. “[M]ootness doctrine is subject to an exception that
sometimes allows courts to retain jurisdiction even if one or more of the elements of standing is
lost; namely, when defendant’s allegedly unlawful activity is capable of repetition, yet evading
review.” Id. at 1182-83. “Such situations arise, for example, when a plaintiff has been subjected
to multiple instances of unlawful action in the past, and can demonstrate a likelihood of future
repetition.” Id. at 1183.
In Rio Grande Silvery Minnow, 601 F.3d 1096, 1111 (10th Cir. 2010) the Tenth Circuit
addressed whether the plaintiffs’ claims under the Endangered Species Act challenging two

23

Biological Opinions issued by Fish and Wildlife Service were mooted by the Fish and Wildlife
Service’s issuance of superseding Biological Opinion. The plaintiffs sought a declaration that the
FWS and another federal agency violated the Endangered Species Act by failing to fully consult
with each other about decision making activities before issuing two previous Biological
Opinions, and also sought an injunction ordering the agencies to consult with each other. Id. at
1107. However, while the litigation was ongoing, FWS issued another Biological Opinion that
superseded the previous Biological Opinions and that “establishe[d] a new regulatory framework
under which” the federal agencies did not have to consult in the manner mandated by the
previous Biological Opinions. Id. at 1118. Recognizing that “[w]ithdrawal or alteration of
administrative policies can moot an attack on those policies,” id. at 1117, the Tenth Circuit held
that it was “not situated to issue a present determination with real-world effect because those
regulations no longer are operational—for all material purposes, they no longer exist.” Id. at
1113.
The Rio Grande Silvery Minnow court relied extensively on a previous Tenth Circuit
case, Wyoming, 414 F.3d at 1212 to support its reasoning that an agency’s amendment of a
challenged policy can moot an attack on that policy. In that case, the State of Wyoming
challenged a rule issued by the United States Forest Service that prohibited certain road
construction, reconstruction, and timber harvesting within the National Forest System lands. Id.
at 1210. Wyoming also alleged that the rule was unlawfully promulgated. Id. at 1211. While the
litigation was ongoing, however, the Forest Service then replaced the challenged rule with a new
one, and the new rule abandoned the old one’s prohibitions on road construction, etc., and
established a new rule making process. Id.. On appeal, the Tenth Circuit dismissed Wyoming’s
challenge to the old rule, holding that “the new rule has mooted the issues in th[e] case,” because

24

the challenged portions no longer existed and that “the alleged procedural deficiencies of the [old
rule]” that Wyoming contested “are now irrelevant because the replacement rule was
promulgated in a new and separate rulemaking process.” Id. The court declined “to render a
decision on the validity of the now nonexistent [old rule]” since to do so “would constitute a
textbook example of advising what the law would be upon a hypothetical state of facts rather
than upon an actual case or controversy as required by Article III of the Constitution.” Id. at
1212-13.
i.

Plaintiff’s Requests for Injunctive and Declaratory Relief are Moot

Plaintiff points out that the 2005 Order anticipated citizen lawsuits such as this one
because it expressly incorporated the RCRA citizen suit enforcement provisions, stating that
“each requirement of this Consent Order is an enforceable ‘requirement’ … of RCRA within the
meaning of” § 6972(a)(1)(A). See Doc. 51-1, p. 20. The problem, though, is that the 2005 Order
is gone because the 2016 Order replaced it. As in Wyoming, the challenged “portions of the
[2005 Order] that were substantively challenged … no longer exist,” 414 F.3d at 1212, thereby
mooting Plaintiff’s request for injunctive and declaratory relief under that order. The 2016 Order
expressly stated that it “supersede[d] the 2005 Compliance Order on Consent (2005 Consent
Order) and settle[d] any outstanding alleged violations under the 2005 Consent Order.” Compl.
Doc. 42, ¶ 51. Because consent orders are generally “to be construed for enforcement purposes
basically as a contract,” meaning that “the terms of the decree and the respective obligations of
the parties must be found within the four corners of the consent decree,” Sinclair Oil Corp. v.
Scherer, 7 F.3d 191, 194 (10th Cir. 1993), the superseding 2016 Order altered the parties’
obligations by means of a campaign approach that does not follow the remediation schedule in
the 2005 Order that is the basis of Plaintiff’s lawsuit.

25

Plaintiff argues that citizen suits can proceed against a state enforcement agency if the
agency improperly uses a consent decree to dispense with public participation requirements
needed to modify a permit. See Citizens for a Better Environment–Cal. v. Union Oil Co. of Cal.
(UNOCAL), 83 F.3d 1111, 1120 (9th Cir.1996) (state enforcement agency’s attempted
modification of permit with consent order ineffective when agency failed to comply with federal
and state regulations govern[ing] the modification of … permits”); Proffitt v. Rohm & Haas, 850
F.2d 1007, 1012 (3d Cir.1988) (stay of enforcement of permit conditions void because there was
“no opportunity for public participation” and the applicable regulations did not “permit
dispensing with public notice when an amendment effects a substantial change in the terms of a
permit”); Riverkeeper, Inc. v. Mirant Lovett, LLC, 675 F. Supp. 2d 337, 345–46 (S.D.N.Y. 2009)
(“[a]n action alleging violations of the [Clean Water Act] cannot be dismissed where the state
enforcement agency, acting without the benefit of public input, attempts to modify a permit.”)
However, this is not a case of permit modification. This is a case of one consent order
replacing another. The record does not show, and Plaintiff has not alleged, that Defendants
attempted to modify DOE’s hazardous waste permit without the public participation required for
a formal permit modification. This case is not analogous to those cases previous cited where it
was found that defendants circumvented public participation requirements for modifying binding
permit by means of consent orders. In this case, Plaintiff’ based its claims on alleged violations
of the 2005 Order itself – which Plaintiff has not alleged is a permit – along with what Plaintiff
perceives as DOE’s and NMED’s non-compliance with the 2005 Order’s modification rules that
required public participation. But as in Wyoming, any “alleged procedural deficiencies”
involving the 2005 Order’s modifications are now “irrelevant because the replacement rule [i.e.
the 2016 Order] was promulgated in a new and separate rulemaking process.” 414 F.3d at 1212.

26

Thus, Plaintiff’s argument that the 2016 Order could not have superseded the 2005 Order
because it did not comply with the 2005 Order’s modification rules fails because those rules no
longer exist.
In a different vein, Plaintiff cites another line of authority to argue that the 2016 Order
did not render its citizen suit moot because Plaintiff seeks remedies outside of the 2005 Order’s
scope. For example, the court in Borough of Upper Saddle River, N.J. v. Rockland Cty. Sewer
Dist. #£1, 16 F. Supp. 3d 294, 325–26 (S.D.N.Y. 2014) held that the defendant’s compliance
with a 2006 consent order regulating sewage discharges did not moot the plaintiffs’ Clean Water
Act citizen lawsuit where the plaintiffs asserted violations that were not covered by the 2006
consent order and thus outside of its scope. See id. at 325. Other courts have similarly found that
“consent orders do not preclude citizen suits under RCRA, where the consent order did not
remediate all of the harm.” Little Hocking Water Ass’n, Inc. v. E.I. du Pont Nemours & Co., 91
F. Supp. 3d 940, 957 (S.D. Ohio 2015) (EPA consent order to reduce quantity of hazardous
wastes in water did not moot plaintiff’s lawsuit where plaintiff sought remediation of
contaminated property); Cmty. Ass’n for Restoration of the Env't, Inc. v. George & Margaret
LLC, 954 F. Supp. 2d 1151, 1160 (E.D. Wash. 2013) (noting that “relief may be available when a
government plan does not address the same substance or activity, or where there is ample room
for injunctive relief beyond [the agency’s] efforts.”); A–C Reorg. Trust v. E.I. DuPont de
Nemours & Co., 968 F.Supp. 423, 430–31 (E.D. Wis. 1997) (RCRA claim regarding
groundwater contamination not moot where EPA consent order only covered surface
contamination). Here, however, Plaintiff identifies no violations independent of the 2005 Order’s
remediation schedule. That order is gone. Plaintiff’s claims for injunctive and declaratory relief
are moot.

27

Accordingly, the Court must determine what relief, if any, remains available to Plaintiff
based on Defendants’ alleged violations of the 2005 Order or the alleged invalidity of the 2016
Order. “[A] plaintiff must demonstrate standing separately for each form of relief sought.”
Laidlaw, 528 U.S. 167, 185 (2000). “Declaratory judgment actions must be sustainable under the
same mootness criteria that apply to any other lawsuit.” Rio Grande Silvery Minnow, 601 F.3d at
1109. “[I]t is well established that what makes a declaratory judgment action a proper judicial
resolution of a case or controversy rather than an advisory opinion is the settling of some dispute
which affects the behavior of the defendant toward the plaintiff.” Id. at 1109-1110. “The crucial
question is whether granting a present determination of the issues offered will have some effect
in the real world.” Id. Because the Court concludes that the 2016 Order moots Plaintiff’s claims
for injunctive and declaratory relief based on the 2005 order, there essentially is no declaratory
or injunctive relief for the Court to order. See id. at 1111-12 (“We must conclude that the [Fish
and Wildlife Service’s] issuance of the 2003 [Biological Opinion] mooted the Environmental
Groups’ prayer for both injunctive and declaratory relief. If we issued an injunction directing
[Bureau of] Reclamation to consult concerning the biological opinions at issue in this litigation,
it would have no effect in the real world because those biological opinions have been
superseded.”) To the extent that Counts I – VI of Plaintiff’s Second Amended Complaint seeks
declaratory and injunctive relief declaring the 2016 Order invalid and ordering LANS and DOE
to comply with the 2005 Order, those counts are dismissed.4

4

LANS and DOE assert that following the 2016 Order’s supersession of the 2005 Order, any
remaining challenges to the 2016 Order’s validity or the manner in which it was executed are
questions of state law that Plaintiff should have addressed to the New Mexico Court of Appeals –
the court with direct reviewability of decisions by NMED’s Secretary. See N.M. Stat. Ann. § 744-14. Essentially LANS and DOE contend that Plaintiff is without a federal cause of action under
RCRA because the only RCRA-based mandate was the 2005 Order itself. They therefore
contend that this Court lacks subject matter jurisdiction over Plaintiff’s claims because the

28

Upon finding that Plaintiff’s claims for injunctive and declaratory relief are moot, the
Court next considers whether the doctrine of voluntary cessation applies. “One exception to a
claim of mootness is a defendant’s voluntary cessation of an alleged illegal practice which the
defendant is free to resume at any time.” Rio Grande Silvery Minnow, 601 F.3d at 1115. A party
cannot “evade judicial review, or to defeat a judgment, by temporarily altering questionable
behavior.” Id. “In other words, this exception exists to counteract the possibility of a defendant
ceasing illegal action long enough to render a lawsuit moot and then resuming the illegal
conduct.” Id. “Courts therefore view voluntary cessation ‘with a critical eye,’ lest defendants
manipulate jurisdiction to ‘insulate’ their conduct from judicial review.” Brown v. Buhman, 822
F.3d 1151, 1166 (10th Cir. 2016).
“The plaintiff bears the burden to establish standing at the time the suit is filed, and if the
defendant’s offending conduct has ceased by that time,” a court should dismiss for lack of
redressability. WildEarth Guardians, 690 F.3d at 1185. “But if the offending conduct ceases
after the suit is filed, the defendant must establish mootness by showing that its offending

Complaint no longer presents any federal causes of action, nor does it invoke the Court’s subject
matter jurisdiction on the basis of diversity or supplemental jurisdiction. Rather, LANS and DOE
assert that Plaintiff’s Complaint presents only issues of state law that are not reviewable by this
Court.
The Court does not agree. As explained infra, p. 31, a finding of mootness can prevent
maintenance of a RCRA lawsuit for injunctive relief as long as there is no reasonable likelihood
that the wrongful behavior will recur. But the mooting of injunctive relief will not moot a request
for civil penalties. Therefore, Plaintiff’s request for civil penalties for past violations of the 2005
Order makes this a federal case actionable under RCRA. Concerning LANS’ and DOE’s
argument that Plaintiff could have but did not challenge the 2016 Order’s validity in the New
Mexico Court of Appeals, while this appears correct it is not germane to this Court’s subject
matter jurisdiction over Plaintiff’s request for civil penalties for Defendants’ alleged past
violations of the 2005 Order. Even if Plaintiff had challenged the 2016 Order and its manner of
execution in the New Mexico Court of Appeals, such a challenge would not affect its federal
RCRA claims in this Court for civil penalties for alleged past violations of a RCRA-based
mandates. It is undisputed that the 2005 Order was a RCRA-based mandate.

29

conduct “could not reasonably be expected to recur.” Id. at 1185-86. This is a “formidable
burden” on the defendant’s part. Brown, 822 F.3d at 1167. “But the burden is not
insurmountable, especially in the context of government enforcement. In practice, [this] heavy
burden frequently has not prevented governmental officials from discontinuing challenged
practices and mooting a case.” Id. “Most cases that deny mootness following government
officials’ voluntary cessation rely on clear showings of reluctant submission [by governmental
actors] and a desire to return to the old ways.” Id. (emphasis in original).
In Rio Grande Silvery Minnow, 601 F.3d at 1118 the Tenth Circuit concluded that there
was no reasonable expectation that the alleged violation in that case – a federal agency’s
consulting process – would recur because a superseding order “established a new regulatory
context” for the agency’s consulting process. Here, Counts I-IV of Plaintiff’s Second Amended
Complaint allege violations stemming from task deadlines under the 2005 Order that have been
altered by the issuance of the 2016 Order that uses a different approach to accomplish waste
clean-up at the Laboratory. As in Rio Grande Silvery Minnow, the Court is not presented “with a
mere informal promise or assurance on the part of the [governmental] defendants that the
challenged practice will cease.” Id. It contains enforceable milestones for numerous corrective
actions. In Rio Grande Silvery Minnow, the court could “identify no lingering effects from the
federal agencies’ alleged violations” concerning their decision making process based on previous
biological opinions, because those opinions were superseded and replaced. Similarly, the 2005
Order is superseded and replaced by the 2016 Order that contains a different remediation
schedule. The voluntary cessation exception of the mootness doctrine does not apply.
ii.

Plaintiff’s Requests for Civil Penalties are not Moot

30

That leaves the portions of Counts I and II – Plaintiff’s request for civil penalties against
Defendants LANS and DOE for their failure to complete 13 corrective tasks under the 2005
Order, making them liable for a maximum penalty of $37,500 per day for each of its violations
of RCRA.5 In Laidlaw, the Supreme Court held that civil penalties “serve, as an alternative to an
injunction, to deter future violations and thereby redress the injuries that prompted a citizen
suitor to commence litigation.” Laidlaw, 528 U.S. at 174. A defendant’s cessation of illegal
conduct following the filing of a lawsuit “ordinarily does not suffice to moot a case” because
civil penalties still deter future violations. Id; accord WildEarth Guardians, 690 F.3d at 1186
(stating that “in most citizen suits, a plaintiff’s claim for civil penalties is not rendered moot by
the defendant’s compliance with the law because the plaintiff retains a concrete interest in
deterring the defendant from future violations.”). Therefore, post-lawsuit compliance may moot
claims for injunctive relief, but district courts can still impose civil penalties for violations that
have already taken place. Laidlaw, 528 U.S. at 192. Only when it is “absolutely clear that the
allegedly wrongful behavior could not reasonably be expected to recur” will events following the
filing of a suit moot a claim for civil penalties. Id. at 189.
In WildEarth Guardians, the Tenth Circuit addressed the “rare exception” where a
defendant’s later compliance with the law mooted a plaintiff’s claim for civil penalties. The
defendant, a public utility company, was initially compliant with all applicable laws when
construction of its power plant began. But then a decision of the District of Columbia Circuit
Court of Appeals required regulators to impose additional Clean Air Act requirements on power
plant construction, thereby making the defendant non-compliant with the law. Id. at 1178. After
the decision, the defendant worked with the relevant state agencies to comply with the modified

5
  District courts independently assess the amount of penalties on violators under RCRA and are

not bound by a plaintiff’s requested relief. See Ekco Housewares, Inc., 62 F.3d at 814.

31

regulatory regime while construction of the plant continued. Noting that “in most citizen suits, a
plaintiff’s claim for civil penalties is not rendered moot by the defendant’s compliance with the
law because the plaintiff retains a concrete interest in deterring the defendant from future
violations,” id. at 1186, the Tenth Circuit nevertheless found that the defendant’s actions did “not
suggest a likelihood of future unlawful conduct needing to be deterred” because the defendant
had previously gone above and beyond what was required in attempting to accommodate
environmental interests, its non-compliance was due to events outside of its control (the D.C.
Circuit’s opinion), and the defendant did not have a “history or pattern” of violations, and the
particular violation alleged was unlikely to be repeated. Id. at 1186–87.
At this stage, the Court cannot say that LANS and DOE have carried their “formidable”
burden to show that it is “absolutely clear that its conduct” challenged here could not reasonably
be expected to recur. Here, “the alleged wrongful behavior,” Laidlaw, 528 U.S. at 189, at issue is
LANS’ and DOE’s failure to complete 13 remediation tasks described in Counts I and II under
the 2005 Order that have remained unfinished since either 2014 or 2015. Those tasks include
submitting numerous remedy completion reports, investigation reports, work plans, and
installing two groundwater monitoring wells to address groundwater contaminants and toxic
pollutants at and around the Laboratory. According to Plaintiff, many of these tasks went
unfinished because of LANS’ and DOE’s pattern of delaying. Although LANS contends that by
2012 NMED avoided enforcing the 2005 Order because the parties viewed it as increasingly
inefficient, Plaintiff has sufficiently alleged that as late as 2014 and 2015, NMED was enforcing
the 2005 Order against LANS and DOE, finding no good cause to extend certain deadlines, thus
setting them apart from the defendant in WildEarth Guardians that had previously gone above
and beyond what was required in attempting to accommodate environmental interests.

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LANS and DOE contend that the 2016 Order’s campaign approach makes violations of
the sort Plaintiff complains unlikely to recur, but both fail to explain how this is so. DOE
contends that under the 2016 Order each campaign has “units,” which are discrete corrective
tasks with projected completion dates. There are 1,395 units in all. However, DOE does not
explain if any one of these units or campaigns address the specific corrective actions Plaintiff
complained of in Counts I and II. Indeed, DOE has provided virtually no clarity on whether the
2016 Order even addresses Plaintiff’s grievances at all. It is not the Court’s job to pore through
the numerous units in the record to determine if any of them address those violations. LANS
argues in a similarly conclusory manner that the 2016 Order’s new campaign approach, backed
by NMED’s enforcement power “ameliorates the concern that DOE will miss future deadlines
and militates against speculating about future violations.” But like DOE, LANS also fails to
explain how the 2016 Order will abate the specific violations Plaintiff identified. It is
theoretically possible that under the 2016 Order’s campaign approach, which prioritizes
remediation tasks based on risk, resources, and geography, the violations Plaintiff identified
could, say, be deemed low-risk or want for resources, and thus remain uncorrected under the
campaign approach.
Essentially, LANS and DOE have done nothing more than tell the Court that a new
system is in place, have described its general workings, and promised that violations will not
recur. But their legal and factual analysis purporting to show that the 2016 Order ensures that the
specific grievances Plaintiff identified in Counts I and II are unlikely to recur is inadequate. They
have failed to carry their formidable burden to show that this case is the rare exception where a
defendant’s compliance with the law moots a plaintiff’s claim for civil penalties. Defendants’
motions to dismiss Plaintiff’s claims for civil penalties as to Counts I and II are denied.

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F. Abstention
LANS argues, in the alternative, that the Court should abstain from exercising
jurisdiction in this case. “The doctrine of abstention, under which a District Court may decline to
exercise or postpone the exercise of its jurisdiction, is an extraordinary and narrow exception to
the duty of a District Court to adjudicate a controversy properly before it.” Colorado River Water
Conservation Dist. v. United States, 424 U.S. 800, 813 (1976). Given the narrowness of the
abstention doctrine and given that DOE and LANS have inadequately explained how the 2016
Order makes violations of the sort Plaintiff complained of unlikely to recur, the Court believes
that a ruling on abstention would be premature. Without sufficiently knowing how the 2016
Order impacts Plaintiff’s specific grievances and requested relief, the Court cannot weigh the
factors bearing on abstention.
IT IS THEREFORE ORDERED that Intervenor New Mexico Environment
Department’s Second Motion to Dismiss [Doc. 45], Defendant United States Department of
Energy’s Motion to Dismiss the Second Amended Complaint [Doc. 47] and Defendant Los
Alamos National Security, LLC’s Motions to Dismiss Plaintiff’s Second Amended Complaint or
Alternatively for Court Abstention [Doc. 48] are GRANTED in part and DENIED in part as
follows:
1. To the extent that Counts I – VI of Plaintiff’s Second Amended Complaint seeks
declaratory and injunctive relief, Defendants’ motions to dismiss are GRANTED;
2. To the extent that Counts I – II of Plaintiff’s Second Amended Complaint seeks civil
penalties, Defendants’ motions to dismiss are DENIED.
3. IT IS SO ORDERED.
___________________________
United States District Court Judge

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