Sierra Club v. U.S. Department of Energy

No. 89-B-181 (D. Colo. February 28, 1990)

The court holds that a former government contractor is potentially liable for closure, under the Resource Conservation and Recovery Act (RCRA), of an incinerator at a federal facility, notwithstanding the fact that the contractor is no longer an operator of the facility. The contractor moved to be dismissed, on grounds of mootness, from a citizen enforcement suit for injunctive relief to address alleged RCRA violations at the facility. The plaintiff had filed a motion to amend its complaint, seeking to add a claim under RCRA § 7002(a)(1)(B). The court holds that under RCRA § 7002, it may enforce RCRA to the full extent of its legal and equitable powers. The court grants the contractor's motion to dismiss the plaintiff's request that the court enjoin the contractor from operating an incinerator at the facility, but denies dismissal as to the plaintiff's claim against the operator for closure of the facility.

Counsel for Plaintiff
Reed Zars
Sierra Club Legal Defense Fund
1631 Glenarm Pl., Ste. 300, Denver CO 80202
(303) 623-9466

Counsel for Defendants
Mary E. Ward
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

[24 ELR 20181]

Babcock, J.:

Order

Pending before me is defendant Rockwell International Corporation's (Rockwell) motion for dismissal of plaintiff's claims for injunctive relief pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). Rockwell contends that because it is no longer an "operator" at Rocky Flats Plant and would be unable to effectuate or implement any injunctive relief that could be granted, plaintiff's claims for injunctive relief against Rockwell are moot. The parties have briefed the issue and Rockwell has moved for an expedited ruling on its motion. Having reviewed the parties' briefs and the relevant case law, I conclude that oral argument would not materially assist in determining this matter. I grant in part and deny in part Rockwell's motion to dismiss.

In its complaint, filed February 1, 1989, plaintiff seeks certain injunctive and declaratory relief against Rockwell and an award of civil penalties for Rockwell's alleged violations of various provisions of the Resource Conservation and Recovery Act of 1976(RCRA), as amended, 42 U.S.C. §§ 6901 et seq. On February 9, 1990, I granted plaintiff's motion to dismiss its civil penalties claims, and on February 20, 1990, plaintiff moved for leave to amend the prayer for relief in its complaint accordingly. Plaintiff apparently concedes that its claim to enjoin Rockwell from operating the Special Nuclear Material Recovery Incinerators is moot, because the prayer for relief in plaintiff's proposed First Amended Complaint refers to defendant Department of Energy (DOE) specifically rather than to defendants generally. See Plaintiff's Proposed First Amended Complaint Prayer for Relief, p. 11-12, A.i., B.i., B.ii., and C.i. Plaintiff's motion for leave to amend complaint presently is pending before Magistrate Donald E. Abram.

The citizen suit provision of the RCRA provides, in pertinent part, that:

[A]ny person may commence a civil action on his own behalf —

(1)(B) against any person . . . including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment . . .

. . . [T]he district court shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties . . . to restrain any person who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste referred to in paragraph (1)(B), to order such person to take such other action as may be necessary, or both. . . .

42 U.S.C. § 6972(a)(1)(B). (Emphasis added.)

I interpret this language to provide a claim for injunctive relief based upon Rockwell's past conduct, notwithstanding the fact that Rockwell is no longer an "operator" of the Rocky Flats Plant. Tanglewood East Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568, 1575-76 [18 ELR 21348] (5th Cir. 1988); United States v. Price, 688 F.2d 204, 213-14 [12 ELR 21020] (3d Cir. 1982). Further, under § 6972, "the district court is authorized to enforce RCRA regulations or orders, presumably to the full extent of its legal and equitable powers." Environmental Defense Fund, Inc. v. Lamphier, 714 F.2d 331, 337 [13 ELR 21094] I therefore conclude that plaintiff's claim for injunctive relief against Rockwell for closure of the Rocky Flats Plant and its claim for attorneys fees and costs is not moot.

Accordingly, IT IS

ORDERED that Rockwell's motion for partial dismissal is granted in part and denied in part.

Rockwell's motion for partial dismissal is GRANTED as to plaintiff's request for injunctive relief for Rockwell's operation of the Special Nuclear Material Recovery Incinerators and from conducting trial burns. (Plaintiff's Complaint, Prayer for Relief, A.i., B.i., B.ii., [and] C.i.).

Rockwell's motion for partial dismissal is DENIED as to plaintiff's claim for injunctive relief against Rockwell for closure of the incinerators (Prayer for Relief, A.ii.) and for attorneys fees and costs (Prayer for Relief, E.).