Bethany City of v. Rockwell Automation Inc et al

Filing 40

ORDER granting in part and denying in part 23 City of Bethany's Motion to Dismiss Claims of Injunctive Relief. Plaintiff's Ninth Claim for Relief asserted in the Complaint and prayer for injunctive relief are stayed pending completion of administrative proceedings of the Oklahoma Department of Environmental Quality. Signed by Honorable Timothy D. DeGiusti on 8/30/2017. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
CITY OF BETHANY, OKLAHOMA,
Plaintiff,
vs.
ROCKWELL AUTOMATION, INC. and
GULFSTREAM AEROSPACE CORP.,
Defendants.

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Case No. CIV-16-1005-D

ORDER
Before the Court is Defendants’ Motion to Dismiss City of Bethany’s Claims for
Injunctive Relief [Doc. No. 23], filed pursuant to Fed. R. Civ. P. 12(b)(1) and (b)(6).
Defendants Rockwell Automation, Inc. and Gulfstream Aerospace Corp. move for partial
dismissal of the Complaint, challenging a claim asserted under the Resource Conservation
and Recovery Act, 42 U.S.C. §§ 6901-6981 (“RCRA”), and claims of nuisance and
trespass to the extent they seek injunctive relief.

Plaintiff City of Bethany has timely

opposed the Motion, which is fully briefed and ripe for decision. 1
Factual and Procedural Background
This case concerns the alleged contamination of soil and groundwater, and a threat
to Plaintiff’s public water supply wells, caused by aircraft manufacturing operations
conducted by Defendants’ predecessors on land adjacent to Wiley Post Airport owned by

1

Defendants filed an opening brief with exhibits [Doc. No. 24]; Plaintiff filed a response
brief [Doc. No. 28]; Defendants filed a reply brief [Doc. No. 34]; and with permission, Defendants
filed a supplemental exhibit [Doc. No. 38-1]. See Order of June 27, 2017 [Doc. No. 39].

the Oklahoma City Airport Trust (“OCAT”). The contamination is the subject of remedial
work voluntarily undertaken by OCAT and Defendants under supervision of the Oklahoma
Department of Environmental Quality (“DEQ”) pursuant to a Memorandum of Agreement
and Consent Order entered in October 2009 and amended in July 2013.

Test data from

the investigation shows a migration of toxic substances toward one of the wellfields that
Plaintiff uses to supply drinking water for customers.

Plaintiff first discontinued use of

certain wells to avoid unsafe water and to stop further migration, and then on the advice of
an environmental consultant, Plaintiff discontinued use of its entire southern wellfield.
Plaintiff filed this action on August 31, 2016, to recover compensatory and punitive
damages under various state law theories, including common law torts and statutes that
protect municipal water supplies.

See Okla. Stat. tit. 11, §§ 37-115 & 37-116.

Plaintiff

alleges it incurred numerous costs associated with responding to the contamination and
was forced to purchase replacement water from the City of Oklahoma City, which
increased the operating cost of its water system. 2

In addition, Plaintiff allegedly has

begun efforts to develop another wellfield to meet its water needs.
Plaintiff also asserts a claim under RCRA, which authorizes a private action to abate
an “imminent and substantial endangerment to health or the environment” but does not
allow a recovery of damages.

See 42 U.S.C. § 6972(a)(1)(B); see also Meghrig v. KFC

W., Inc., 516 U.S. 479, 484-85 (1996).

Plaintiff seeks “injunctive and equitable relief to

compel Defendants to comply with RCRA and to abate the continuing nuisance and

2

Plaintiff passed an ordinance effective August 1, 2016, that permits higher water supply
costs to be charged to certain customers. See Compl. [Doc. No. 1], ¶ 80.
2

trespass by removing toxic chemicals . . . from soil and groundwater.”

See Compl. [Doc.

No. 1] at 25 (Prayer for Relief, ¶ b).
On October 6, 2016, approximately one month after this action was filed, DEQ,
OCAT, and Defendants entered into an Amended Voluntary Consent Order for Interim
Remedial Measures (the “Consent Order”), which further amended their prior agreement.
The Consent Order obligates OCAT and Defendants to address the migration of certain
chemical compounds from the manufacturing site to adjacent areas by performing specific
activities, including the design and implementation of a remedial action plan to minimize
further migration.

Although undertaken through DEQ’s voluntary cleanup program, the

Consent Order is enforceable as a final order of DEQ, which retains jurisdiction “for the
purposes of interpreting, implementing, and enforcing the terms and conditions of this
Order and for the purpose of resolving disputes.”
¶ 20.

See Consent Order [Doc. No. 24-11],

The requirements of the Consent Order will be satisfied only when DEQ gives

written notice that OCAT and Defendants “have demonstrated that all the terms of the
Order have been completed to the satisfaction of the DEQ.”

Id. ¶ 26.

Defendants first move to dismiss Plaintiff’s RCRA claim for lack of subject matter
jurisdiction. They do not challenge Plaintiff’s bases of federal jurisdiction, 3 but instead
invoke the doctrine of primary jurisdiction and raise an issue of mootness based on the
Consent Order.

On these same grounds, Defendants move to dismiss Plaintiff’s state-law

tort claims of nuisance and trespass “to the extent those claims seek injunctive relief in

3

See Compl. [Doc. No. 1], ¶¶ 21-22 (invoking 28 U.S.C. § 1332 and 42 U.S.C. § 6972).
3

light of the ongoing remedial efforts undertaken by [Defendants].”
Dismiss [Doc. No. 23] at 2.

See Defs.’ Mot.

Defendants alternatively move to dismiss the RCRA action

for failure to state a claim on which relief can be granted.
Standard of Decision
The jurisdictional aspects of Defendants’ Motion are governed by Rule 12(b)(1).
Under this rule, where “the movant goes beyond the allegations in the complaint and
challenges the facts upon which subject matter jurisdiction depends . . . , the court must
look beyond the complaint and has wide discretion to allow documentary and even
testimonial evidence.”

Paper, Allied-Indus., Chem. & Energy Workers Int’l Union v.

Continental Carbon Co., 428 F.3d 1285, 1292 (10th Cir. 2005); see Holt v. United States,
46 F. 3d 1000, 1002-03 (10th Cir. 1995).

A court may consider these materials without

converting the motion to one for summary judgment under Rule 56 unless “the
jurisdictional question is intertwined with the merits of the case.” Holt, 46 F. 3d at 1003;
see Pringle v. United States, 208 F.3d 1220, 1222 (10th Cir. 2000); see also Los Alamos
Study Group v. U. S. Dep’t of Energy, 692 F.3d 1057, 1063-64 (10the Cir. 1012).

The

issues are considered to be intertwined where “resolution of the jurisdictional question
requires resolution of an aspect of the substantive claim.”

Pringle, 208 F.3d at 1223; see

Sizova v. Nat’l Inst. Standards & Tech., 282 F.3d 1320, 1324 (10th Cir. 2002).
In the present Motion, Defendants rely on matters outside the Complaint and so
raise a factual attack on jurisdiction.

See E.F.W. v. St. Stephen’s Indian High Sch., 264

F.3d 1297, 1303 (10th Cir. 2001) (factual attacks “go beyond the allegations contained in
the complaint”).

Defendants raise an issue of primary jurisdiction that does not challenge
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the merits of Plaintiff’s underlying claims, and this aspect of the Motion may properly be
decided under Rule 12(b)(1). Regarding mootness, however, the Court finds for reasons
discussed infra that this issue is intertwined with the merits of Plaintiff’s RCRA claim and
must be decided under Rule 56.

The Court declines to convert the Motion to one for

summary judgment on the present briefs and the existing record, and reserves this issue for
decision after further factual development.
Mootness
“Mootness is a threshold issue because the existence of a live case or controversy is
a constitutional prerequisite to federal court jurisdiction.”

Ind v. Colorado Dep’t of Corr.,

801 F.3d 1209, 1213 (10th Cir. 2015) (internal quotation omitted); accord Rio Grande
Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1109 (10th Cir. 2010). 4
“[M]ootness is ‘the doctrine of standing set in a time frame:

The requisite personal

interest that must exist at the commencement of the litigation (standing) must continue
throughout its existence (mootness).’”

S. Utah Wilderness All. v. Smith, 110 F.3d 724,

727 (10th Cir. 1997) (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 68
n.22 (1997)).

The central inquiry is whether “circumstances [have] changed since the

beginning of litigation that forestall any occasion for meaningful relief.”

4

Id. (internal

In addition to mootness based on Article III of the Constitution, there is a prudential
mootness doctrine that considers the propriety of granting relief in a case where comity concerns
arise. See Jordan v. Sosa, 654 F.3d 1012, 1024 (10th Cir. 2011). The doctrine of prudential
mootness “has particular applicability in cases . . . where the relief sought is an injunction against
the government.” S. Utah Wilderness All., 110 F.3d at 727. Defendants primarily rely on
constitutional mootness, mentioning prudential mootness only in a footnote. See Defs.’ Mem.
Supp. Mot. Dismiss [Doc. No. 24] at 16-17 n.18. The Court finds this argument is not sufficiently
developed, and declines to address it.
5

quotation omitted); see Nat’l Advert. Co. v. City of Denver, 912 F.2d 405, 411 (10th Cir.
1990) (“The relief sought must be capable of addressing the alleged harm.”) (internal
quotation omitted).

Where a plaintiff seeks prospective injunctive relief, for purposes of

the mootness inquiry, “his susceptibility to continuing injury is of particular importance –
‘[p]ast exposure to illegal conduct does not in itself show a present case or controversy
regarding injunctive relief . . . if unaccompanied by any continuing, present adverse
effects.”

Jordan v. Sosa, 654 F.3d 1012, 1024 (10th Cir. 2011) (quoting O’Shea v.

Littleton, 414 U.S. 488, 495-96 (1974)) (emphasis in original); see Citizen Ctr. v. Gessler,
770 F.3d 900, 906 (10th Cir. 2014).

“A party claiming that there is no longer a live case

or controversy bears the burden of demonstrating mootness.”

In re Paige, 584 F.3d 1327,

1336 (10th Cir. 2009) (internal quotation omitted).
In this case, Defendants assert that Plaintiff’s claims for injunctive relief are moot
because the Consent Order serves the same purpose and has the same effect as the
mandatory injunction sought by the Complaint. Defendants contend the Consent Order
and their abatement activities provide the same relief that Plaintiff could obtain under
RCRA or the tort claims for injunctive relief. The injunction sought by Plaintiff would
“compel Defendants to comply with RCRA and to abate the continuing nuisance and
trespass by removing toxic chemicals, including TCE [Trichloroethene] and PCE
[Tetrachloroethene], from soil and groundwater.”
for Relief, ¶ b).

See Compl. [Doc. No. 1] at 25 (Prayer

Defendants do not contend that abatement of these chemicals has

occurred, but that the Consent Order requires abatement and provides the relief Plaintiff
seeks.

In support of this contention, Defendants provide evidence that their efforts to
6

comply with the Consent Order have already resulted in DEQ’s approval of a remedial
action plan and meaningful progress toward implementation of the plan.
Plaintiff responds to Defendants’ mootness argument by arguing that the Consent
Order directs a voluntary effort and lacks any assurance of timely or effective abatement
of the contamination.

Plaintiff argues that the delay often encountered in administrative

proceedings is antithetical to its RCRA remedy because “[t]he primary goal of the RCRA’s
citizen suit provision is the prompt abatement of imminent and substantial endangerments
[to health and the environment].”
quotation omitted).

See Pl.’s Resp. Br. [Doc. No. 28] at 17 (internal

Further, Plaintiff argues, “a federal court may order a more extensive

or complete remedy under RCRA than that imposed by a state agency.” Id.

Plaintiff

contends the cases cited by Defendants in support of a finding of mootness “are not
persuasive” and were primarily decided by summary judgment.

See id. at 18-19.

Upon consideration, the Court finds that a determination of whether Defendants
have carried their burden to establish that Plaintiff’s RCRA claim is moot, requires an
examination of the merits of the claim.

The Court is mindful that “RCRA is not

principally designed to effectuate the cleanup of toxic waste sites” but “to reduce the
generation of hazardous waste and to ensure the proper treatment, storage, and disposal of
that waste which is nonetheless generated, ‘so as to minimize the present and future threat
to human health and the environment.’” See Meghrig, 516 U.S. at 483 (quoting 42 U.S.C.
§ 6902(b)); see also Trinity Indus., Inc. v. Chicago Bridge & Iron Co., 735 F.3d 131, 140
(3d Cir. 2013).

However, federal appellate courts addressing the issue of mootness of

RCRA claims due to remedial action taken under state regulatory oversight, have affirmed
7

a denial of relief where a consent order is in place and appears to be effective.

See Trinity,

735 F.3d at 140; see also Ctr. for Biological Diversity, Inc. v. BP Am. Prod. Co., 704 F.3d
413, 431 (5th Cir. 2013) (remediation under the Clean Water Act).
Here, Plaintiff contends the question of timely and effective abatement remains
unresolved by the Consent Order, particularly in light of DEQ’s past involvement at the
site for more than seven years.

Although the Court is not entirely persuaded by Plaintiff’s

argument, the Court finds that it is not clear from the existing record whether Plaintiff’s
RCRA and nuisance claims regarding abatement will be fully resolved in a timely and
effective manner by Defendants’ current activities under the Consent Order.

Therefore,

the Court reserves the issue of mootness for decision under Rule 56 following further
factual development.
Primary Jurisdiction
The doctrine of primary jurisdiction allows a district court with subject matter
jurisdiction over a claim to stay or dismiss the claim until the appropriate administrative
agency has ruled on the matter. See Reiter v. Cooper, 507 U.S. 258, 268-69 (1993). The
purpose of the doctrine is “‘to allow an agency to pass on issues within its particular area
of expertise before returning jurisdiction to the federal district court for final resolution of
the case.’” See TON Servs., Inc. v. Qwest Corp., 493 F.3d 1225, 1238 (10th Cir. 2007)
(quoting Crystal Clear Commc’ns, Inc. v. Sw. Bell Tel. Co., 415 F.3d 1171, 1179 (10th Cir.
2005)). The Tenth Circuit has provided the following guidance:
In this circuit, a district court’s decision to invoke the primary
jurisdiction doctrine “require[s] it to consider whether the issues of fact in
the case: (1) are not within the conventional experience of judges; (2)
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require the exercise of administrative discretion; or (3) require uniformity
and consistency in the regulation of the business entrusted to the particular
agency. Crystal Clear Commc’ns, 415 F.3d at 1179. Additionally, when
the regulatory agency has actions pending before it which may influence the
instant litigation, invocation of the doctrine may be appropriate.
Id. at 1239 (citation omitted) (alteration by the court in TON Servs.). The decision to
invoke the doctrine is discretionary, and should be made on a case-by-case basis after
considering “whether ‘the reasons for the existence of the doctrine are present and whether
the purposes it serves (i.e., uniformity and resort to administrative expertise) will be aided
by its application in the particular litigation.’”

Id. (quoting United States v. W. Pac. R.R.,

352 U.S. 59, 64 (1956)).
In this case, Defendants assert that DEQ has primary jurisdiction over the
remediation sought by Plaintiff’s RCRA claim.

Defendants ask the Court to dismiss this

claim, or bar Plaintiff from proceeding on its claims for injunctive relief, because DEQ is
responsible for enforcing environmental regulations in Oklahoma, including RCRA, and
Plaintiff’s pursuit of these claims will interfere with remedial measures being taken under
the Consent Order.
Plaintiff asserts that its RCRA claim is a citizens suit expressly authorized by
42 U.S.C. § 6972(a)(1)(B) to abate an imminent and substantial endangerment to health
and the environment by persons who have generated, stored, treated, or disposed of
hazardous waste, such as the toxic chemicals at issue in this case.

Plaintiff contends that

Congress provided this remedy to permit immediate judicial relief as a supplement to other
environmental laws, that federal courts have exclusive jurisdiction over RCRA claims, and
that federal courts should not defer to regulatory agencies under these circumstances.
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See

Pl.’s Resp. Br. [Doc. No. 28] at 6-9.

Plaintiff also relies on Marshall v. El Paso Natural

Gas Co., 874 F.2d 1373 (10th Cir. 1989), for the proposition that courts routinely deal with
pollution issues and there is no need for agency deference or judicial abstention on these
issues.
Upon consideration of the appropriate factors in this case, the Court finds that the
doctrine of primary jurisdiction applies and that judicial action on Plaintiff’s RCRA claim
and tort claims seeking a mandatory injunction should be deferred.

Under the

circumstances, however, where further judicial proceedings are contemplated and pending
administrative action may affect Plaintiff’s action, a stay rather than dismissal is
appropriate.

See TONS Servs., 493 F.3d at 1243.

First, while Plaintiff correctly argues that federal district courts routinely deal with
pollution issues, that is not the real point.

Plaintiff’s RCRA and injunction claims, if

successful, would require the Court to fashion a remedy to abate the alleged contamination
in a timely and effective manner. In Oklahoma, this task is assigned by federal and state
law to DEQ, which is uniquely equipped with the expertise and means to evaluate, design,
monitor, and effectuate the necessary remedial work.

In this case, DEQ already has a

substantial head start toward abating the alleged contamination on the subject property
affecting Plaintiff’s water supply wells.

Plaintiff does not dispute this fact, but seeks to

distinguish the Consent Order because it was issued under DEQ’s voluntary cleanup
program rather than its RCRA authority.

In fact, Plaintiff concedes (albeit in a footnote)

that a stay of judicial action is appropriate where DEQ is exercising proper regulatory
authority.

See Pl.’s Resp. Br. [Doc. No. 18] at 12 n.3 (“If Defendants were to agree to
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enter into the DEQ’s RCRA Corrective Action program, Plaintiff would voluntarily request
that this Court stay the RCRA cause of action (only) pending completion of the RCRA
Corrective Action process.”).

The Court finds insufficient reason to interfere in an

ongoing abatement process simply because DEQ’s exercise of authority began voluntarily
rather than as a part of an RCRA enforcement action. 5
Closely linked to the expertise factor, the factors of administrative discretion and
regulatory consistency also weigh in favor of deference to DEQ’s existing proceeding to
abate the contamination affecting Plaintiff’s water wells.

Plaintiff argues that RCRA

authorizes this Court to determine its own abatement plan and to “order a more extensive
or complete remedy under RCRA than that imposed by a state agency.”

Id. at 12.

Any

such order would necessarily subject Defendants to different requirements and interfere
with DEQ’s approved plan, and could undermine the uniformity and consistency needed
for DEQ to implement an effective remedial program.

Further, Plaintiff’s contention that

the Consent Order does not guarantee a permanent or complete remedy ignores the fact
that RCRA requires prompt abatement of an immediate threat.
designed to effectuate the cleanup of toxic waste sites.”

“RCRA is not principally

See Meghrig, 516 U.S. at 483.

Finally, Plaintiff does not disagree with Defendants that DEQ has already made
substantial progress in evaluating the immediate threat to Plaintiff’s water wells, approving
a remedial work plan, and overseeing its implementation.
seems to be that the DEQ proceeding has taken too long.

5

Plaintiff’s main complaint
But Plaintiff fails to explain

Indeed, where a state enforcement action has been initiated, RCRA prohibits federal
courts from hearing an RCRA citizen’s suit. See 42 U.S.C. § 6972(b)(2)(C).
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how this RCRA action could accomplish a speedier or more effective abatement remedy
than the existing administrative proceeding.

In summary, the Court finds that Plaintiff’s

RCRA and abatement action should be stayed to permit DEQ to exercise its primary
jurisdiction over the alleged contamination in this case.
Conclusion
For these reasons, the Court finds that Plaintiff’s RCRA claim and its demands for
injunctive relief are barred by the doctrine of primary jurisdiction and that Plaintiff’s action
should proceed at the present time only on Plaintiff’s tort claims for damages.
IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss City of
Bethany’s Claims for Injunctive Relief [Doc. No. 23] is GRANTED in part and DENIED
in part, as set forth herein.

Further proceedings on Plaintiff’s Ninth Claim for Relief

asserted in the Complaint and the prayer for injunctive relief are STAYED pending the
completion of administrative proceedings of the Oklahoma Department of Environmental
Quality in In re Former Aero Commander Facility at Wiley Post Airport, Case No. 09-301.
IT IS SO ORDERED this 30th day of August, 2017.

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