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Anacostia Riverkeeper, et al v. Washington Gas Light Company

September 24, 2012

ANACOSTIA RIVERKEEPER, ET AL.,
PLAINTIFFS,
v.
WASHINGTON GAS LIGHT COMPANY,
DEFENDANT.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

OPINION

Plaintiffs Anacostia Riverkeeper and Anacostia Watershed Society bring a citizen suit under the Resource Conservation and Recovery Act to abate the endangerment to the environment caused by the Washington Gas Light Company's former gas manufacturing plant at a site adjacent to the Anacostia River in Southeast, Washington, D.C. Because the United States has already selected and is implementing removal and remedial actions at the same site under the

Comprehensive Environmental Response, Compensation, and Liability Act, Plaintiffs' Complaint is barred by CERCLA's "timing of review" provision. Washington Gas' motion to dismiss will be granted, and the Complaint will be dismissed for lack of subject matter jurisdiction.

I. FACTS

The Complaint addresses recognized contamination to land and sediments in and around the Anacostia River and alleges the following facts. The Anacostia River is approximately 8.5 miles long and flows through the District of Columbia before it enters the Potomac River. The Anacostia Watershed is home to approximately 800,000 urban residents. The East Station Site, where Washington Gas manufactured gas for nearly a century, consists of 18.8 acres of land located in the lower area of the watershed. Washington Gas owns approximately 11.4 acres of the East Station Site. Prior to 2008, the United States owned roughly 4.5 of the remaining acres, of which all but .35 acres were managed by the National Park Service ("NPS"). This area, except for the .35 acres, is referred to by the parties and this Court as the "NPS Site." In 2008, ownership of the NPS Site was transferred to the District of Columbia. The .35- acre portion of the property is held by the United States and managed by the U.S. Army Corps of Engineers; the Army Corps uses this small section as a station for debris collection boats that patrol the Anacostia and Potomac Rivers.

Washington Gas owned and operated a gas manufacturing plant on the East Station Site. The plant was closed in 1983 and demolished by 1988. As a result of the gas manufacturing and disposal practices at the Site, Washington Gas had contaminated the Site's "surface soil, subsurface soil, groundwater, and the water and sediment in the Anacostia River." Compl. [Dkt. 1] ¶ 53. In 1999, the Environmental Protection Agency ("EPA") issued a Record of Decision (the "EPA ROD") for the East Station Site under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §§ 9601, et seq. ("CERCLA"). The EPA ROD noted that the East Station Site "was the subject of six major environmental investigations" which "characterized the land and river contamination, assessed the human-health and ecological risks, and evaluated the remedial alternatives." Id. ¶¶ 61-62. The EPA ROD determined that "several human exposure scenarios . . . exceeded threshold risk levels, requiring elimination or management of the contamination." Id. ¶ 64. The EPA ROD found danger in the risk of exposure to surface soil at the NPS Site, subsurface soil across the East Station Site, and contamination of the Anacostia River and its sediment due to chemicals found at the NPS Site. The EPA ROD concluded that if the release of hazardous substances into the environment were not addressed by implementing the remedies selected in the EPA ROD, it could pose a threat to public health or the environment. Id. ¶ 68. The EPA ROD "set out a selected remedy for the entire East Station Site but indicated that a separate record of decision would be issued for the NPS Site." Id. ¶ 71.

NPS issued a ROD for the NPS Site in August 2006 (the "NPS ROD") that selected a response action for that site, but, according to the Complaint, deferred identifying any response action for the contaminated sediment in the Anacostia River. See Mot. to Dismiss, Ex. A [Dkt. 8-2] (NPS ROD). It is the NPS Site and this contaminated river sediment that are at the heart of Plaintiffs' complaint.

The parties agree on the following facts. The NPS ROD contained four response actions for the NPS Site: a groundwater remedy, a DNAPL*fn1 remedy, a surface soil remedy, and a subsurface soil remedy. The groundwater and DNAPL remedies, which included pumping and treating the groundwater at the Site and capture of DNAPL in all groundwater extraction wells, were the same as those selected in the EPA ROD. Washington Gas is continuing to implement these remedies across the entire East Station Site. The NPS ROD also required two additional soil remedies: (a) removal of contaminated surface soil to the a depth of one foot; and (b) removal of subsurface soil contaminated with tar down to clean fill or to a maximum depth of three feet. NPS ROD at 2. Finally, the NPS ROD required "participation by Washington Gas in a watershed-wide study of sediment quality." Id. It stated that this study would be led by EPA and required that it be partially funded by Washington Gas. The "study is intended to lead to recommendations for a comprehensive and coordinated remedial plan for the watershed in which Washington Gas will participate." Id. The NPS ROD also stated that the "NPS will evaluate actions to reduce any sediment contamination . . . . This may lead to the implementation of remedial action to mitigate existing contamination in river sediments." Id. at 62.

The parties dispute whether the NPS ROD selected a response action for contaminated sediment in the Anacostia River. Defendant asserts that the sediment remedy consists of "further study of the sediments and participation in a regional study." Reply [Dkt. 11] at 11. While Plaintiffs concede that such studies do count as response actions under CERCLA, they argue that any sediment study at the NPS Site has already been completed or should be deemed completed because of the passage of time.

CERCLA authorizes NPS to implement the NPS ROD either by issuing a unilateral administrative order or by entering into a consent decree with Washington Gas. 42 U.S.C. §§ 9606(a), 9622(d). To date, no such order or consent decree has been entered.

Before this Court is a related case titled United States v. Washington Gas Light Company, No. 11-2199 (RMC), filed on December 12, 2011, in which the United States proposes a consent decree that would cover the entire East Station Site: the two terrestrial parcels, the groundwater under both parcels, and the sediments and water of the Anacostia River where hazardous substances from the Washington Gas Property are located. One terrestrial parcel is the approximately 11.4 acres owned by Washington Gas; the second terrestrial parcel is the 4.2-acre plot now owned by the District (except for the .35-acre area retained by the United States). The United States lodged its proposed consent decree on December 13, 2011. Washington Gas Light Co., No. 11-2199, Notice of Proposed Consent Decree [Dkt. 3]. After required publication, receipt of comments, and consideration of comments,*fn2 the United States filed its unopposed motion for entry of final judgment consent decree on August 29, 2012. See id., Mot. for Entry of Final J. [Dkt. 11]. The Plaintiffs in this case filed a motion to intervene in Case No. 11-2199, but withdrew their motion on September 18, 2012. Unlike this suit, which is limited to the NPS Site, the proposed final consent decree covers the entire area. It provides for implementing the soil and subsoil remedies and a Remedial Investigation/Feasibility Study ("RI/FS") for "groundwater, surface water, and the sediments of the Anacostia River." Id.

Due to the delay in actual implementation of response actions at the NPS Site,*fn3

Plaintiffs ask the Court to enter judgment declaring that Washington Gas "has contributed and/or is contributing to the past and/or present handling, storage, treatment, transportation, and/or disposal of solid or hazardous waste containing coal tar and other contaminants that presents or may present an imminent and substantial endangerment to human health or the environment, in violation of . . . § 7002(a)(1)(B)" of the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et. seq., (RCRA) and order Washington Gas to take all measures to eliminate the endangerment. Compl. at 15 (Relief Requested). Section 7002(a)(1)(B) of RCRA allows suit against "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 which may present an imminent and substantial endangerment to health or the environment." 42 U.S.C. § 6972(a)(1)(B). These actions are known as endangerment suits.

Washington Gas moves to dismiss the Complaint, arguing that the Court lacks subject matter jurisdiction over Plaintiffs' claims because the United States already is engaged in a CERCLA response action at the NPS Site and therefore ...


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