381 F. Supp. 3d 1300
D. Colo.2019Background
- Rocky Mountain Arsenal (federally owned) contains major hazardous-waste contamination; Basin F certified closed in 2010 and is alleged to require a CHWA post-closure permit.
- Plaintiff sues asserting two claims: (1) defendants (Army, USFWS, and Shell) failed to obtain required Colorado post-closure permits under CHWA/RCRA; (2) defendants illegally transferred Arsenal property to Commerce City in violation of CERCLA §120(h) and related obligations.
- Shell moved to dismiss arguing it is not an “operator” and CERCLA’s permit-waiver preempts state permit requirements; Federal Defendants moved to dismiss on statute-of-limitations and sovereign-immunity grounds and argued CERCLA preempts the state remedy.
- The magistrate judge recommended partially granting and partially denying both motions; all parties filed objections. The district court conducted de novo review of objections.
- The district court: (a) denied Shell’s motion as to Claim 1 (Shell plausibly alleged to be an operator) and granted it as to Claim 2; (b) denied Federal Defendants’ motion as to Claim 1 (including finding a RCRA waiver of immunity applies) and granted it as to Claim 2 to the extent based on CERCLA §120(h) transfers as time-barred under 28 U.S.C. §2401(a).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Complaint plausibly alleges Shell is an “operator” required to obtain post-closure permit | Shell makes and participates in environmental compliance and funding decisions for the Facility, so it is an operator | Shell: operator defined in present tense; no factual basis that Shell manages Basin F; Bestfoods and other authority do not support operator status here | Court: Overrules Shell; accepts magistrate finding that allegations plausibly plead operator status under Bestfoods standard |
| Whether CERCLA permit-waiver bars state permit claim | Plaintiff: CERCLA’s savings/relationship provisions allow state post-closure permit requirements to apply where units were regulated under RCRA/CHWA before CERCLA action | Shell/Federal Defs: CERCLA §9621(e) preempts state permitting for onsite CERCLA remedial actions | Court: Overrules preemption argument; permit waiver does not apply to units regulated under RCRA/CHWA prior to CERCLA; state permit claim can proceed |
| Whether United States waived sovereign immunity for RCRA/CHWA claim | Plaintiff: RCRA §6961 waives sovereign immunity for federal agencies and the United States and subjects them to state permitting and injunctive relief | Federal Defs/Magistrate: waiver applies to agencies/departments but not to the United States as a whole for some claims | Court: Sustains Plaintiff; reads §6961 to waive immunity as to the United States and obligate federal agencies to comply with state hazardous-waste requirements |
| Whether CERCLA §120(h) property-transfer claim is time-barred under 28 U.S.C. §2401(a) | Plaintiff: accrual may be tied to when the State Director requested a permit or when Plaintiff knew of transfer; factual dispute prevents dismissal | Federal Defs: Claim accrued on date of transfer (Aug. 20, 2007); §2401(a) six-year bar applies | Held: Claim accrues when right of action first accrues; transfer claim accrued on transfer date and is time-barred to the extent based on §120(h) noncompliance (filed after six years) |
Key Cases Cited
- United States v. Bestfoods, 524 U.S. 51 (defining “operator” for environmental liability purposes)
- Chevron Mining Inc. v. United States, 863 F.3d 1261 (interpreting CERCLA §9620 waiver and United States’ liability under CERCLA)
- Sierra Club v. Oklahoma Gas & Elec. Co., 816 F.3d 666 (limitations/accrual analysis for continuing violations and claim accrual)
- Colorado Dep't of Pub. Health & Env't v. United States, 693 F.3d 1214 (Tenth Circuit on federal compliance with state hazardous-waste programs and waiver implications)
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading standard: labels and conclusions insufficient)