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.
RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE.
case concerns hazardous waste at the Rocky Mountain Arsenal,
which is federally-owned land. Plaintiff's complaint
alleges two claims implicating state and federal
environmental laws. The matter is before the Court on the
Recommendation of United States Magistrate Judge (the
“Recommendation”) (ECF No. 42). The
Recommendation addresses two separate motions to dismiss-one
by Defendant Shell Oil Company (ECF No. 12) and the other by
the “Federal Defendants, ” which consists of the
United States of America, United States Department of the
Army, and the United States Fish and Wildlife Service (ECF
No. 37). The Recommendation concluded that each motion be
granted in part and denied in part. (ECF No. 42 at 37-38.)
Plaintiff, Shell, and Federal Defendants each filed
objections to the Recommendation. (ECF Nos. 45, 46, 47.)
Federal Defendants responded to Plaintiff's objections.
(ECF No. 48.) Plaintiff responded to Federal Defendants'
and Shell's objections. (ECF Nos. 49, 50.)
reasons stated below, the Court SUSTAINS IN PART
Plaintiff's objections, OVERRULES Shell's objections,
OVERRULES IN PART and SUSTAINS IN PART Federal
Defendants' objections, and AFFIRMS IN PART and REJECTS
IN PART the Recommendation as provided herein. Shell's
motion to dismiss is denied as to
Plaintiff's first claim and granted as
to Plaintiff's second claim. Federal Defendants'
motion to dismiss is denied as to
Plaintiff's first claim and granted as
to Plaintiff's second claim as untimely to the extent it
is based on failing to comply with the provisions of CERCLA
120(h) and otherwise as barred by sovereign immunity as to
Review of the Magistrate Judge's Recommendation
magistrate judge issues a recommendation on a dispositive
matter, Fed.R.Civ.P. 72(b)(3) requires that the district
court judge “determine de novo any part of the
magistrate judge's [recommendation] that has been
properly objected to.” “[T]he district court
judge may accept, reject, or modify the recommendation;
receive further evidence; or return the matter to the
magistrate judge with instructions.” Id.
objection is proper if it is filed timely in accordance with
the Federal Rules of Civil Procedure and specific enough to
enable the “district judge to focus attention on those
issues - factual and legal - that are at the heart of the
parties' dispute.” United States v. One Parcel
of Real Property, 73 F.3d 1057, 1059 (10th Cir. 1996)
(quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)).
In the absence of a timely and specific objection, “the
district court may review a magistrate's report under any
standard it deems appropriate.” Summers v.
Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citations
omitted); see also Fed. R. Civ. P. 72 Advisory
Committee's Note (“When no timely objection is
filed, the court need only satisfy itself that there is no
clear error on the face of the record in order to accept the
Rule 12(b)(1) Motion to Dismiss
motion to dismiss pursuant to Rule 12(b)(1), the court tests
whether it has subject matter jurisdiction to properly hear
the case before it. The party invoking the court's
jurisdiction bears the burden to establish that federal
jurisdiction exists, and “since the courts of the
United States are courts of limited jurisdiction, there is a
presumption against its existence.” Basso v. Utah
Power & Light Co., 495 F.2d 906, 909 (10th Cir.
12(b)(1) motions generally take two forms. The first form is
a facial attack that challenges the sufficiency of the
complaint's allegations as to subject matter
jurisdiction. Holt v. United States, 46 F.3d 1000,
1002 (10th Cir. 1995). The court accepts the allegations in
the complaint as true when reviewing a facial attack.
second form is a factual attack that goes beyond the
allegations in the complaint and challenges the facts on
which subject matter jurisdiction is based. Id. at
1003. Unlike a facial attack, the court does not presume the
truthfulness of the complaint's factual allegations when
reviewing a factual attack. 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.
(citation omitted). And “a court's reference to
evidence outside the pleadings does not convert the motion to
a Rule 56 motion[, ]” unless the jurisdictional issue
is intertwined with the merits of a plaintiff's case.
Id. “The jurisdictional question is
intertwined with the merits of the case if subject matter
jurisdiction is dependent on the same statute which provides
the substantive claim in the case.” Id.
Rule 12(b)(6) Motion to Dismiss for Failure to State a
purpose of a motion pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure is to test “the sufficiency of
the allegations within the four corners of the complaint
after taking those allegations as true.” Mobley v.
McCormick, 40 F.3d 337, 340 (10th Cir. 1994). “The
court's function on a Rule 12(b)(6) motion is not to
weigh potential evidence that the parties might present at
trial, but to assess whether the plaintiff's complaint
alone is legally sufficient to state a claim for which relief
may be granted.” Sutton v. Utah State Sch. for the
Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999)
(internal quotation marks and citation omitted).
survive a Rule 12(b)(6) motion, “[t]he complaint must
plead sufficient facts … to provide ‘plausible
grounds that discovery will reveal evidence to support the
plaintiff's allegations.” Shero v. City of
Grove, Okl., 510 F.3d 1196, 1200 (10th Cir. 2007)
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). Plausibility in this context “must refer
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.”
Robbins v. Oklahoma, 519 F.3d 1242, 1247-48 (10th
Cir. 2008) (internal quotation marks and citation omitted).
The “allegations must be enough that, if assumed to be
true, the plaintiff plausibly (not just speculatively) has a
claim for relief.” Id. This requirement of
plausibility “serves not only to weed out claims that
do not have a reasonable prospect of success, [but also to]
provide fair notice to defendants of the actual grounds of
the claim against them.” Id. at 1248;
accord Twombly, 550 U.S. at 582.
pleading that offers labels and conclusions or a formulaic
recitation of the elements of a cause of action will not do.
Nor does a complaint suffice if it tenders naked assertions
devoid of further factual enhancement.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
marks and citation omitted).
FACTUAL AND PROCEDURAL HISTORY
parties do not object to the factual or procedural background
discussed in the Recommendation. Accordingly, the Court
adopts and incorporates the factual and procedural background
included within the Recommendation as if set forth herein. To
put the Court's analysis in context, a brief overview
Rocky Mountain Arsenal is a hazardous waste treatment,
storage, and disposal facility located near Commerce City,
Colorado. The United States government has owned the facility
since 1942 with the Army operating it from that time until
the mid-1980's. Being one of the nation's most
contaminated sites, a CERCLA interim response action was
initiated in 1988 to remediate the contamination. Basin F of
the facility was certified closed on August 24, 2010.
Plaintiff's claims are twofold: (1) that defendants have
failed to obtain a post-closure permit (or substitute
document) as required by 6 Colo. Code Regs. §
1007-3:100.10-the Colorado Hazardous Waste Act
(“CHWA”); and (2) that defendants transferred a
parcel of Arsenal land outside the federal government (to
Commerce City, Colorado) in violation of various agreements
and laws. Plaintiff's second claim relies on the
Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. § 9601 et seq.
(“CERCLA”), an On-Post Record of Decision
(“ROD”) pursuant to CERCLA, and Colorado
Executive Order D-013-98.
moves to dismiss Plaintiff's complaint on several grounds
pursuant to Fed.R.Civ.P. 12(b)(1) and (6). First, Shell
argues that the Court lacks subject matter jurisdiction. (ECF
No. 12-1 at 7-9.) Next, Shell contends that Plaintiff's
second claim for the transfer of land should be dismissed
because it never owned any portion of the Arsenal.
(Id. at 9.) With regard to the first claim, Shell
argues that it is not an “operator” of the
Arsenal and, therefore, has no obligation to obtain a
post-closure permit as Plaintiff alleges. (Id. at
10-18.) Finally, Shell argues that imposing any permit
requirement on it conflicts with CERCLA's permit waiver
provision. (Id. at 19-20.)
Defendants separately move to dismiss Plaintiff's
complaint on several grounds pursuant to Fed.R.Civ.P.
12(b)(1) and (6). Federal Defendants maintain that both of
Plaintiff's claims are barred by the applicable statute
of limitations-claim one by Colo. Rev. Stat. §
25-15-308(4)(a) and claim two by 28 U.S.C. §
2401(a)-Federal Defendants argue that Section 2401(a) also
poses a jurisdictional bar. (ECF No. 37 at 7-8, 17-19.) As to
the first claim, Federal Defendants also insist that the
United States (as a whole-distinct from its departments and
agencies) is entitled to sovereign immunity and that
CERCLA's permit waiver provision bars the claim.
(Id. at 8-16.) According to Federal Defendants,
claim two must also be dismissed because the United States is
entitled to sovereign immunity (together with its departments
and agencies) and because CERCLA § 121(e)(2) does not
provide for injunctive relief. (Id. at 19-20.)
motions were referred to the magistrate judge. (ECF Nos. 20,
37.) A hearing on the motions was held on December 15, 2017.
(ECF No. 39.) Supplemental briefing was filed before the
hearing. (ECF Nos. 26, 27.) On March 5, 2018, the magistrate
judge issued a Recommendation that each motion be denied in
part and granted in part. (ECF No. 42.) Plaintiff, Federal
Defendants, and Shell filed objections to the Recommendation.
(ECF Nos. 45, 46, 47.)
Recommendation advised that the claims, in some permutation
of defendants and claims, should go forward. As should always
be the case, the parties filed focused objections to some-but
not all-findings and conclusions of the magistrate judge.
Rather than set forth the magistrate judge's
Recommendation as to all matters and how each objection
implicates (if at all) the overall recommendations, the Court
concludes that the magistrate judge's analysis was
thorough and sound, and that there is no clear error on the
face of the record with regard to portions of the
Recommendation to which neither party objected. See
Fed. R. Civ. P. 72(b) advisory committee's note
(“When no timely objection is filed, the court need
only satisfy itself that there is no clear error on the face
of the record in order to accept the recommendation.”);
see also Summers, 927 F.2d at 1167. And having so
said, the Court proceeds directly to the objections.
Does the complaint allege that Shell is an
“Operators” of hazardous waste management units
must have permits during the closure period of a unit. 6
Colo. Code Regs. § 1007-3:100.10. The Recommendation
concludes that Plaintiff states a cognizable claim against
Shell as an operator of the Arsenal because the complaint
alleges that Shell “makes decisions regarding funding
of the CERCLA remedy and participates in environmental
compliance decisions[.]” (ECF No. 42 at 10-13.)
Shell's objection contends that the Recommendation erred:
(1) by disregarding CHWA's use of the present tense of
the word operator; (2) by “failing to engage”
with caselaw cited in its brief; and (3) by making
“unsupported factual findings regarding Shell's
activities at the Arsenal.” (ECF No. 47 at 3-6.)
Plaintiff responds that the Recommendation correctly
concludes Shell is an operator under controlling law. (ECF
No. 49 at 3-4.) The Court agrees with the Recommendation.
alleges that “Shell makes environmental compliance
decisions concerning ongoing funding of the [CERCLA] remedy
and participates in decisions regarding the Facility's
compliance with environmental regulations.” (ECF No. 1
at ¶ 39.) CHWA's definition of operator does not
answer the question at hand: “‘Operator'
means the person operating a hazardous waste management
facility or site either by contract or permit.” Colo.
Rev. Stat. § 25-15-101. The Court finds the analysis of
CERCLA's “operator” definition helpful. Just
like CHWA's tautological definition, the Supreme Court
“rue[d] the uselessness of CERCLA's definition of a
facility's ‘operator' as ‘any person . .
. operating' the facility[.]” United States v.
Bestfoods, 524 U.S. 51, 66 (1998). In an attempt to give
the term its ordinary and natural reading, the
Bestfoods court defined operator as “someone
who directs the workings of, manages, or conducts the affairs
of a facility.” Id. “To sharpen the
definition for purposes of CERCLA's ...