United States District Court, D. Colorado
COLORADO DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT, HAZARDOUS MATERIALS AND WASTE MANAGEMENT DIVISION, Plaintiff,
UNITED STATES OF AMERICA, UNITED STATES DEPARTMENT OF THE ARMY, UNITED STATES FISH AND WILDLIFE SERVICE, and SHELL OIL COMPANY, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE
Michael E. Hegarty, United States Magistrate Judge.
separate motions, Defendant Shell Oil Company
(“Shell”) and Defendants United States of
America, United States Department of the Army
(“Army”) and United States Fish and Wildlife
Service (“FWS”) (collectively “Federal
Defendants”), seek to dismiss Plaintiff Colorado
Department of Public Health and Environment's
(“CDPHE”) Complaint pursuant to Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6). The Honorable Raymond
P. Moore referred the motions to this Court for report and
Court first addresses CDPHE's state law claim, which
alleges Defendants violated the Colorado Hazardous Waste Act
(“CHWA”) by failing to obtain a post-closure
permit. The Court recommends finding that CDPHE states a
claim as to all Defendants except the United States of
America, which is entitled to sovereign immunity.
Court then analyzes CDPHE's second claim, which alleges
Defendants violated the Comprehensive Environmental Response,
Compensation and Liability Act (“CERCLA”) and
various agreements between the parties when they transferred
land at the Rocky Mountain Arsenal (“Arsenal”)
without receiving approval from Colorado. The Court first
recommends holding that CDPHE fails to assert a claim against
Shell. Then, the Court finds that the United States of
America is entitled to sovereign immunity. The Court also
finds that the Army and FWS are entitled to sovereign
immunity to the extent CDPHE seeks an injunction requiring
that they comply with the specific provisions of the Colorado
Executive Order D-013-98 (“Executive Order”) and
the CDPHE Joint Policy (“State Policy”). However,
CDPHE's claims against the Army and FWS are not subject
to dismissal in their entirety, because CDPHE also seeks an
injunction mandating that the Army and FWS comply with
provisions of CERCLA.
the Court grants in part and denies in part Shell's and
Federal Defendants' Motions to Dismiss.
following are factual allegations (as opposed to legal
conclusions, bare assertions, or merely conclusory
allegations) made by CDPHE in its Complaint, which are taken
as true for analysis under Fed.R.Civ.P. 12(b)(1) pursuant to
Holt v. United States, 46 F.3d 1000, 1002 (10th Cir.
1995) and under Fed.R.Civ.P. 12(b)(6) pursuant to
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
relevant factual background for the Arsenal spans numerous
years, many of which have been spent in litigation. In 1942,
the Army began using the Arsenal to manufacture and dispose
of chemical warfare agents and other hazardous substances.
Compl. ¶ 11, ECF No. 1. From 1946 until 1987, the Army
leased portions of the Arsenal to private companies, such as
Shell. Id. ¶ 12. Shell manufactured pesticides
at the Arsenal from 1952 to 1982. Id. ¶ 13.
Until 1981, the Army and Shell disposed of their hazardous
waste in a service impoundment called Basin F. Id.
¶¶ 14-15. Although the Army and Shell stopped using
Basin F in 1981, hazardous waste remained in the unit, and
the unit continued to discharge waste into the environment.
Id. ¶ 15.
1980, the Army submitted a permit application for the
treatment, storage, and disposal of hazardous waste at Basin
F pursuant to the Resource Conservation and Recovery Act
(“RCRA”). Id. ¶ 17. The Army
continued through the permitting process until May 1984, when
the Environmental Protection Agency (“EPA”)
issued a notice of deficiency on the Army's application.
Id. ¶¶ 17-19.
in October 1984, EPA granted the State of Colorado final
authorization to implement the CHWA in lieu of EPA enforcing
the RCRA. Id. ¶ 20. This would have required
the Army to seek an operating permit from CDPHE instead of
EPA. However, rather than issue an operating permit for Basin
F, CDPHE promulgated a final modified closure plan for Basin
F on November 14, 1986. Id. ¶ 21. CDPHE
subsequently issued various CHWA compliance orders to the
Army. Id. ¶¶ 21, 26.
1987, EPA listed the Arsenal on a list of the nation's
most contaminated sites to be remediated pursuant to CERCLA.
Id. ¶ 22. Accordingly, a CERCLA interim
response action was initiated in 1988. Id. ¶
23. On February 17, 1989, EPA, the Army, Shell, the Agency
for Toxic Substance Disease Registry, and the Department of
the Interior entered into a Federal Facility Agreement
(“FFA”). Id. ¶ 25. The FFA
established a cooperative procedure to address the release of
hazardous substances from the Arsenal. Id.
1992, Congress created the Rocky Mountain Arsenal National
Wildlife Refuge (“Refuge”) on portions of the
Arsenal. Id. ¶ 27. Congress provided a process
for transferring control of the Refuge from the Army to FWS.
Id. FWS now manages the Refuge, which requires it to
make a variety of environmental compliance decisions, such as
ensuring that the Refuge is not used for agricultural or
residential purposes. Id. ¶ 40.
11, 1996, EPA issued its On-post Record of Decision
(“ROD”) as part of the CERCLA remedy.
Id. ¶ 30. The ROD, which the Army, EPA, and
CDPHE signed, formally established a remedy and cleanup
approach for the Arsenal. Id. Pursuant to the ROD,
the parties were to remove fixed volumes of contaminated soil
from various solid waste management units
(“SWMUs”), including Basin F. Id.
Because the success of the ROD relied on the United States
retaining ownership of the Arsenal, it placed restrictions on
land use and access. Id. ¶ 31.
October 22, 1998, EPA promulgated the RCRA
Closure/Post-Closure Rule, which allows parties to establish
the post-closure permit requirement through a variety of
alternative documents. Id. ¶ 32. Post-closure
permits detail operating requirements, groundwater monitoring
requirements, and facility-wide corrective action
requirements. Id. Colorado subsequently adopted the
rule, which gave CDPHE authority to allow alternative
documents for hazardous waste units that certified closure
after January 26, 1983. Id. ¶¶ 33-34. On
August 24, 2010, CDPHE certified Basin F closed with
hazardous materials left in place. Id. ¶ 33.
CDPHE finalized a post-closure plan for Basin F on October 6,
2011. Id. ¶ 35.
Defendants have worked cooperatively with CDPHE to develop a
variety of documents, including the ROD, the long-term
monitoring plan, and post-closure plans for various hazardous
waste units at the Arsenal. Id. ¶ 35. The Army,
Shell, and FWS continue to make decisions regarding whether
specific SWMUs comply with environmental regulations.
Id. ¶¶ 38-43.
CDPHE conducted an investigation and records review of the
Arsenal. Id. ¶¶ 43-44. The inspection
revealed that Defendants have not submitted post-closure
permit applications or alternative document requests for
multiple waste landfills and SWMUs. Id.
Additionally, CDPHE discovered that the Federal Government
transferred ownership of a portion of the Arsenal to Commerce
City, Colorado on August 20, 2007. Id. ¶¶
on these factual allegations, CDPHE filed the Complaint on
September 14, 2017. Compl., ECF No. 1. CDPHE pleads two
claims for relief. Id. ¶¶ 46-54. First,
CDPHE asserts Defendants violated 6 Colo. Code Regs. §
1007-3:100.10 by failing to submit a post-closure permit
application or a request to obtain an alternative agreement.
Id. ¶ 47. CDPHE's second claim contends
Defendants violated CERCLA §120(h), the ROD, the FFA,
the Executive Order, and the State Policy when they
transferred ownership of a portion of the Arsenal to Commerce
City without receiving authorization from CDPHE. Id.
October 6, 2017, Shell responded to the Complaint by filing
the present Motion to Dismiss, ECF No. 12-1. Although Shell
contends this Court lacks original subject matter
jurisdiction over CDPHE's state law claim as to it, Shell
does not dispute this Court's supplemental jurisdiction
to decide these claims. Id. at 5-9. Turning to the
merits, Shell argues the Court should dismiss the CERCLA
claim, because CDPHE's allegations make clear that Shell
did not own any of the allegedly transferred property.
Id. at 7. Regarding CDPHE's first claim for
relief, Shell contends the CHWA does not require it to obtain
a post-closure permit, because it is not an operator of Basin
F. Id. at 8-16. Regardless, Shell argues that CERCLA
waives state permit requirements when a CERCLA remedial
action is ongoing at the facility. Id. at 17-18.
filed a response brief on October 27, 2017. Resp. to
Shell's Mot. to Dismiss, ECF No. 19. CDPHE argues it
sufficiently pleads its CERCLA claim, because it alleges
Shell allowed Arsenal property to be transferred out of
federal ownership. Id. at 7. Regarding its state law
claim, CDPHE contends Shell is an operator of the Arsenal,
because Shell regularly makes environmental compliance
decisions and funds the CERCLA remedy. Id. at 8-16.
Finally, CDPHE contends the CERCLA permit waiver does not
apply to the Arsenal. Id. at 17-19. On November 13,
2017, Shell filed a Reply in Support of its Motion to
Dismiss, ECF No. 24.
November 27, 2017, the Court permitted Shell and CDPHE to
file supplemental briefs addressing Shell's argument that
CERCLA waives CHWA's post-closure permit requirement.
Minute Order, ECF No. 25. Shell and CDPHE filed their
supplemental briefs on December 5, 2017. ECF Nos. 26-27. The
Court held oral argument on Shell's motion on December
15, 2017. ECF No. 35.
December 18, 2017, Federal Defendants filed the present
Motion to Dismiss, ECF No. 37. Federal Defendants first
contend that two applicable statutes of limitations bar
CDPHE's CHWA claim. Id. at 7-8. Similar to
Shell, Federal Defendants next argue that CERCLA's permit
waiver precludes any requirement that they obtain a
post-closure permit. Id. at 8-13. Federal Defendants
then assert that the United States of America, as a whole, is
entitled to sovereign immunity, and FWS is not an operator of
any landfill or service impoundment at which a post closure
permit is required. Id. at 13-16.
to CDPHE's CERCLA claim, Federal Defendants contend the
six-year statute of limitations applicable to all civil
actions against the United States bars this claim.
Id. at 17-19. Alternatively, Federal Defendants
assert that the section of CERCLA on which CDPHE relies does
not allow injunctive relief. Id. at 19. Lastly,
Federal Defendants argue they are entitled to sovereign
immunity to the extent CDPHE seeks that they comply with the
Executive Order and State Policy. Id. at 19-20.
filed a response on January 18, 2018. Resp. to Federal
Defs.' Mot. to Dismiss, ECF No. 40. CDPHE first contends
the statute of limitations does not bar its state law claim,
because the two- and five-year limitations periods
contemplate continuing violations. Id. at 4-7.
Additionally, CDPHE contends the CERCLA permit waiver does
not preclude this claim, the United States of America has
waived sovereign immunity, and it sufficiently alleges FWS is
an operator of the Arsenal. Id. at 8-13. With regard
to the federal claim, CDPHE first argues that disputed issues
of fact exist as to when the claim accrued. Id. at
14-17. Then, CDPHE contends CERCLA contemplates injunctive
relief, and the Federal Government has waived its sovereign
immunity for CERCLA violations. Id. at 18-20. On
February 8, 2018, Federal Defendants filed a Reply in Support
of Their Motion, ECF No. 41.
Dismissal under Fed.R.Civ.P. 12(b)(1)
12(b)(1) empowers a court to dismiss a complaint for
“lack of subject matter jurisdiction.”
Fed.R.Civ.P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a
judgment on the merits of a plaintiff's case, but only a
determination that the court lacks authority to adjudicate
the matter. See Pueblo of Jemez v. United States,
790 F.3d 1143, 1151 (10th Cir. 2015) (recognizing that
federal courts are courts of limited jurisdiction and may
only exercise jurisdiction when specifically authorized to do
so). A court lacking jurisdiction “must dismiss the
cause at any stage of the proceeding in which it becomes
apparent that jurisdiction is lacking.” Id.
(citing Full Life Hospice, LLC v. Sebelius, 709 F.3d
1012, 1016 (10th Cir. 2013)). A Rule 12(b)(1) motion to
dismiss “must be determined from the allegations of
fact in the complaint, without regard to mere [conclusory]
allegations of jurisdiction.” Groundhog v.
Keeler, 442 F.2d 674, 677 (10th Cir. 1971). The burden
of establishing subject matter jurisdiction is on the party
asserting jurisdiction. Pueblo of Jemez, 790 F.3d at
1151. Accordingly, CDPHE bears the burden of establishing
that this Court has jurisdiction to hear its claims.
Dismissal Pursuant to Fed.R.Civ.P. 12(b)(6)
survive a motion to dismiss, 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, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Plausibility, in the context of a motion to dismiss,
means that the plaintiff pleaded facts which allow “the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
Twombly requires a two prong analysis. First, a court
must identify “the allegations in the complaint that
are not entitled to the assumption of truth, ” that is,
those allegations which are legal conclusions, bare
assertions, or merely conclusory. Id. at 679-80.
Second, the court must consider the factual allegations
“to determine if they plausibly suggest an entitlement
to relief.” Id. at 681. If the allegations
state a plausible claim for relief, such claim survives the
motion to dismiss. Id. at 680.
refers “to the scope of the allegations in a complaint:
if they are so general that they encompass a wide swath of
conduct, much of it innocent, then the plaintiffs ‘have
not nudged their claims across the line from conceivable to
plausible.'” Khalik v. United Air Lines,
671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)).
“The nature and specificity of the allegations required
to state a plausible claim will vary based on context.”
Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210,
1215 (10th Cir. 2011). Thus, while the Rule 12(b)(6) standard
does not require that a plaintiff establish a prima facie
case in a complaint, the elements of each alleged cause of
action may help to determine whether the plaintiff has set
forth a plausible claim. Khalik, 671 F.3d at 1191.
Court first recommends holding that CDPHE's state law
claim plausibly asserts a cause of action against Shell, the
Army, and FWS. However, the Court recommends finding that the
United States of America is entitled to sovereign immunity
over this claim. Next, the Court recommends holding that
Shell and the United States of America are entitled to
dismissal of CDPHE's second claim for relief, but CDPHE
states a claim as to the Army and FWS.
CDPHE's First Claim for Relief: Violation of a CHWA
first cause of action alleges Defendants violated 6 Colo.
Code Regs. § 1007-3:100.10 by failing to obtain a
post-closure permit. Compl. ¶¶ 46-47, ECF No. 1.
That regulation provides in relevant part:
RCRA requires a permit for the “treatment”,
“storage”, and “disposal” of any
“hazardous waste” as identified or listed in Part
261 of these regulations. . . . Owners and operators of
surface impoundments, landfills, land treatment units, and
waste pile units that received waste after July 26, 1982, or
that certified closure (according to § 265.115 of these
regulations) after January 26, 1983, must have post-closure
permits, unless they demonstrate closure by removal or
decontamination as provided under § 100.10(b) and (c),
or obtain an enforceable document in lieu of a post-closure
permit, as provided under paragraph (d) of this section.
6 Colo. Code Regs. § 1007-3:100.10. CDPHE alleges
Defendants did not obtain a post closure permit for the
following impoundments and units at the Arsenal: Basin F, the
Hazardous Waste Landfill, the Enhanced Hazardous Waste
Landfill, and several SWMUs. Compl. ¶¶ 43-44. The
Court will separately address liability as to Shell and the
Claim as to Shell
Court recommends holding that CDPHE states a violation of 6
Colo. Code Regs. § 1007-3:100.10 against Shell. CDPHE
alleges Shell is an operator of Basin F, and CERCLA §
121(e)(1) does not ...