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Need for Hazardous Waste Remediation Moot?

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In its ongoing battle for a cleaner, safer environment, Nuclear Watch New Mexico sued the Department of Energy (DOE) and Los Alamos National Security, LLC (LANS) in U.S. District Court for the District of New Mexico alleging violations of the Resource Conservation and Recovery Act (RCRA) for the failure to complete cleanup and remediation of nuclear wastes at Los Alamos National Laboratory (LANL). It alleged the defendants failed to submit investigation reports, remedy completion report for material disposal areas, and install monitoring wells and documentation associated with the wells. DOE, LANS, and the New Mexico Environment Department (NMED), an intervenor, all cross filed for summary judgment claiming the civil penalty claims were moot.

Resource Conservation and Recovery Act

This important federal environmental act empowers the Environmental Protection Agency (EPA) with the authority to control hazardous waste. The EPA regulates the generation, transport, treatment, storage, and disposal of hazardous waste. RCRA has a “violation” provision that allows any person to file a citizen lawsuit against a person or entity who allegedly is in “violation of any permit, standard, regulation, condition, requirement, prohibition or order” of the act. District courts that hear citizen lawsuits have the statutory authority to grant the equitable relief necessary to address violations or endangerment and impose civil penalties.

RCRA also grants states the ability to develop hazardous waste programs that are at least as stringent as RCRA. In 1985, New Mexico was authorized by the EPA to implement its own hazardous waste program in place of the federal one. NMED provides hazardous waste permits to owners/operators of hazardous waste facilities to treat, dispose, and store waste. NMED also issues compliance orders, civil penalties, or enjoins permit violators.

Background

The LANL is a DOE owned national laboratory located outside Santa Fe, New Mexico. It was created during World War II to protect the U.S. against nuclear threats and “solve national security challenges through scientific excellence.” Initially the laboratory was used to design and test nuclear weapons. It produced plutonium pits, test explosives and material science, and design lasers. The laboratory generated hazardous waste as a result of its operations. In 2002, NMED determined the hazardous waste produced by Los Alamos' operations “presented an imminent and substantial endangerment to health or the environment and ordered a series of corrective tasks. The order by NMED resulted in a 2005 Consent Order between NMED, DOE, and the Regents of the University of California (LANS’ predecessor). The Order provided the details on how the hazardous waste was to be cleaned up. It included an investigation of individual Technical Areas (TAs) as well as a schedule for completing specific corrective action tasks for the investigation and cleanup.

In 2006, LANS was awarded a contract to manage, operate, and remediate the waste at the laboratory. However, DOE hired a new waste clean-up contractor prompting it to enter into a “Bridge Contract” in 2015. The contract directed how the clean-up activities were to be performed until a successor remediation contractor would be hired. In November 2018, DOE selected Triad National Security, LLC to replace LANS as the management and operating contractor. Newport News Nuclear BWXT replaced LANS’s waste remediation contract, leaving LANS with no responsibilities for the remediation

Mootness

Article III of the Constitution grants federal courts the power to hear only “actual ongoing cases or controversies.” The case, City of Erie v. Pap's A.M., 529 U.S. 277, 120 S. Ct. 1382, 146 L. Ed. 2d 265 (2000) notes a case is moot if “the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” The one exception available for a claim of mootness is a defendant’s voluntary cessation of an illegal practice which the defendant is free to resume at any time. This exception prevents defendants from ceasing illegal action to render a lawsuit moot and resume the illegal conduct once again.

The defendants argued the case was moot because the 2016 Order superseded the 2005 Order by changing the compliance requirements for corrective clean-up. However, the District Court noted the two orders had similarities. The 2005 Order and 2016 Order for example, subjects DOE to its obligation of cleaning up hazardous waste at the site. Also, apart from the requirements to install two wells, both orders address requirements Plaintiffs identified as alleged violations. The District Court noted a new compliance regime “does not necessarily moot a claim for civil penalties.

In a November, 13, 2019 decision,  the District Court concluded the civil penalty claims against LANS were moot because it had no operational or cleanup role at the laboratory. Also, supporting the mootness of the claims was the fact, that as of November 2018, LANS was no longer the co-permittee and co-operator on the RCRA-permit for the laboratory. This is supported by the holdings in the case, Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 192, 120 S. Ct. 693, 710, 145 L. Ed. 2d 610 (2000). The Supreme Court in Laidlaw found that “a defendant’s cessation of illegal conduct following the commencement of a suit “ordinarily does not suffice to moot a case.” The Supreme Court came to this conclusion even though the facility in Laidlaw had been “permanently closed, dismantled, and put up for sale.”

Holding

The United States District Court found the Plaintiff’s evidence raised no triable issue and was moot because of LANS’s removal from the RCRA-permit and its lack of responsibilities for the site. The court stated, there is “no reasonable expectation that the wrong will be repeated.”  It granted Motion for Summary Judgment for the Defendant, Los Alamos National Security, LLC and and dismissed all of Plaintiff’s claims for RCRA civil penalties. The Motions for Summary Judgment filed by the Plaintiff, NMED, and DOE were all denied. For more information on this case, or if you find yourself in a similar predicament contact Whitcomb Selinsky PC. at (303) 534-1958.

About the AuthorRaymundo Ribota

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