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entertaining motion to reconsider after transfer under Section 1631
Summary of this case from Cureaux v. SawyerOpinion
DOCKET NO. 98-CV-0354E(H)
Opinion Filed: June 21, 2000
Francis C. Amendola, Esq., Buffalo, NY, ATTORNEYS FOR THE PLAINTIFF.
Michael D. Rowe, Esq., U.S. Dept. of Justice, Environmental Natural Resources Division Washington, D.C., Lynn S. Edelman, Esq., Asst U.S. Attorney, Buffalo, NY, ATTORNEYS FOR THE DEFENDANT.
The parties in the above-captioned action have filed motions to reconsider this Court's September 10, 1998 Order — F.A.C.T.S., Inc. v. United States Nuclear Regulatory Comm'n, No. 98-CV-0354E(H), 1998 WL 748340 (W.D.N.Y Sept. 10, 1998) ( "FACTS I") — that dismissed the Complaint as to all of the defendants except the United States Nuclear Regulatory Commission ("the NRC") and then transferred the matter to the United States Court of Appeals for the Second Circuit. Specifically, plaintiff seeks reconsideration of that part of the decision which dismissed the United States Department of Energy and transferred its claim against the NRC to the Second Circuit. The defendants seek reconsideration of the decision to transfer and argue that dismissal of the entire action is necessary and proper. For the reasons hereinbelow stated, the defendants' motion is granted.
Knowledge of the underlying facts and of the procedural history in this case is presumed. In FACTS I, the undersigned reasoned that, because section 113(h) of the Comprehensive Response, Compensation, and Liability Act ("CERCLA") precludes any challenge to an ongoing CERCLA response action, regardless of under what statute the challenge is brought, dismissal of plaintiff's First Cause of Action was required "insofar as it seeks a judgment declaring that the [United States Army] Corps [of Engineers] lacks jurisdiction over certain hazardous materials located at the Tonawanda [Sites]." FACTS I, at *1-2 see also 42 U.S.C. § 9613(h) ("[n]o Federal court shall have jurisdiction under Federal law * * * to review any challenges to removal or remedial action selected under section 9604 of this title"). "[T]he Second Cause of Action and those other portions of the Complaint which seek to enjoin the Corps from proceeding with the planned response actions and to invalidate the Record of Decision" were similarly dismissed. FACTS I, at *2 However, the undersigned did conclude that, because this Court could not exercise jurisdiction over the claim brought against the NRC, by operation of the Hobbs Act, 28 U.S.C. § 2342(4), and because the defendants did not voice any objections thereto, "the interests of justice would be served" by transferring the remaining portion of this action to the appellate court. FACTS I, at *3; see also 28 U.S.C. § 1631.
The defendants now maintain that, based on this action's previous accelerated briefing schedule, an adequate brief could not be submitted with respect to the transfer issue and that such supposed non-opposition was assumed in error. Defendants' Motion to Reconsider at 1. They further assert that, for the same reasons which previously led to the dismissal of this action as against certain of the defendants, the action against the NRC cannot continue — i.e., section 133(h) of CERCLA precludes the present exercise of jurisdiction by any court.
The nub of plaintiff's declaratory judgment action — viz., that the NRC has "exclusive regulatory jurisdiction over the radiological wastes present at the Tonawanda Sites," Plaintiff's Reply Mem. of Law at 3, seeks to "settle the regulatory responsibility of the NRC for such material," Plaintiff's Opp. Mem. of Law at 3, and secure a "safe and proper cleanup of the radioactive wastes at the Tonawanda Sites." Id. at 2. Plaintiff argues that the granting of such judgment would not constitute a challenge to the remedial work being performed at the Tonawanda Sites and is not undercut by the fact that "a declaratory judgment that the NRC has jurisdiction over such material might have provided one ground for injunctive relief enjoining the Corps' remedial activity." Plaintiff's Reply Mem. of Law at 2. Nevertheless, these assertions are unavailing. As indicated in FACTS I, it is well-settled that section 113(h) "precludes any challenge to an ongoing CERCLA response action, regardless of under what statute the challenge is brought." FACTS I, at *1. If this Court were to entertain such, it would necessarily "impact the implementation of the remedy [selected for the Tonawanda Sites] and result in the same delays Congress sought to avoid by passage" of section 113(h) — Schalk v. Reilly, 900 F.2d 1091, 1097 (7th Cir. 1990) — by implying that the Corps' response to the radioactive wastes at the Tonanwanda Sites is now dependent on some grant of authority, by license or otherwise, from the NRC under its guidelines. Such a determination and its concomitant result is what section 113(h) expressly prohibits.
Plaintiff asserts that Atomic Energy Act of 1954, 42 U.S.C. § 2011 et seq., requires the NRC to assume responsibility for all "by product materials" as defined by the Act and "insure that the management of any byproduct material * * * is carried out" in an appropriate manner. 42 U.S.C. § 2114(a). The Act also states that "[i]n carrying out its authority," the NRC is authorized to
"(1) by rule, regulation, or order require persons, officers, or instrumentalities exempted from licensing under section 81 of this Act to conduct monitoring, perform remedial work, and to comply with such other measures as it may deem necessary or desirable to protect health or to minimize danger to life or property, and in connection with the disposal or storage of such byproduct material; and
(2) make such studies and inspections and to conduct such monitoring as may be necessary." 42 U.S.C. § 2114(b).
McClellan Ecological Seepage Situation v. Perry, 47 F.3d 325 (9th Cir. 1995), is particularly on point. Therein a citizens group sought to require McClellan Air Force Base to comply with various environmental laws during its cleanup of hazardous wastes that had been deposited into earthen pits and then had leached into the groundwater. An integral part of this cleanup involved installation of a groundwater extraction system which first allowed contaminants to leach into the groundwater before such water was extracted and treated. The citizens group claimed, inter alia, that such extraction and treatment violated the "individual reporting and permitting requirements" of the Resource Conservation and Recovery Act — 42 U.S.C. § 6601-6692 — and that imposing such requirements would not "challenge the CERCLA cleanup plan." McClellan, at 329-330. Rejecting the plaintiff's characterization, the court found that the action was a prohibited "challenge" under section 113(h) inasmuch as it sought to interfere with and improve on the actual cleanup. Id. at 330.
Turning to the present matter, regardless of how plaintiff characterizes its action against the NRC, it is clear that mandating NRC jurisdiction over the radioactive wastes at the Tonawanda Sites is likewise violative of section 113(h) because the NRC would then be obligated to carry out its regulatory jurisdiction in accordance with the Atomic Energy Act and in supplementation to the remedy already selected under CERCLA. As was found in McClellan, such a determination would undoubtedly interfere with the Corps' cleanup and is barred by section 113(h).
A determination in favor of plaintiff would also necessarily entail this Court's issuance of merely an advisory opinion inasmuch as section 113(h) would preclude enforcement of that decision. In this regard, it is dispositive to note this Court's — or, for that matter, any court's — "inability to fashion any remedy that would not interfere" with the Corps' remedial activities. Id. at 331. Consequently, transfer of this claim to the appellate court pursuant to 28 U.S.C. § 1631 is inappropriate because no federal court may exercise jurisdiction over plaintiff's declaratory judgment action until the response at the Tonawanda Sites is complete. See General Atomics v. U.S. Nuclear Regulatory Com'n, 75 F.3d 536, 540 (9th Cir. 1996) ("If the transferee court lacks jurisdiction, the transfer is obviously improper.").
Accordingly, it is hereby ORDERED that defendants' motion to seek reconsideration of the decision to transfer is granted, that the Complaint is dismissed against the United States Regulatory Commission, that plaintiff's motion for reconsideration is denied as moot and that this case shall be closed but subject to renewal when the United States Army Corps of Engineers response at the Tonanwanda Sites is complete.