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City of Bethany, Oklahoma v. Rockwell Automation, Inc.

United States District Court, W.D. Oklahoma

August 30, 2017




         Before the Court is Defendants’ Motion to Dismiss City of Bethany’s Claims for Injunctive Relief [Doc. No. 23], filed pursuant to Fed. R. Civ. P. 12(b)(1) and (b)(6). Defendants Rockwell Automation, Inc. and Gulfstream Aerospace Corp. move for partial dismissal of the Complaint, challenging a claim asserted under the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901-6981 (“RCRA”), and claims of nuisance and trespass to the extent they seek injunctive relief. Plaintiff City of Bethany has timely opposed the Motion, which is fully briefed and ripe for decision.[1]

         Factual and Procedural Background

         This case concerns the alleged contamination of soil and groundwater, and a threat to Plaintiff’s public water supply wells, caused by aircraft manufacturing operations conducted by Defendants’ predecessors on land adjacent to Wiley Post Airport owned by the Oklahoma City Airport Trust (“OCAT”). The contamination is the subject of remedial work voluntarily undertaken by OCAT and Defendants under supervision of the Oklahoma Department of Environmental Quality (“DEQ”) pursuant to a Memorandum of Agreement and Consent Order entered in October 2009 and amended in July 2013. Test data from the investigation shows a migration of toxic substances toward one of the wellfields that Plaintiff uses to supply drinking water for customers. Plaintiff first discontinued use of certain wells to avoid unsafe water and to stop further migration, and then on the advice of an environmental consultant, Plaintiff discontinued use of its entire southern wellfield.

         Plaintiff filed this action on August 31, 2016, to recover compensatory and punitive damages under various state law theories, including common law torts and statutes that protect municipal water supplies. See Okla. Stat. tit. 11, §§ 37-115 & 37-116. Plaintiff alleges it incurred numerous costs associated with responding to the contamination and was forced to purchase replacement water from the City of Oklahoma City, which increased the operating cost of its water system.[2] In addition, Plaintiff allegedly has begun efforts to develop another wellfield to meet its water needs.

         Plaintiff also asserts a claim under RCRA, which authorizes a private action to abate an “imminent and substantial endangerment to health or the environment” but does not allow a recovery of damages. See 42 U.S.C. § 6972(a)(1)(B); see also Meghrig v. KFC W., Inc., 516 U.S. 479, 484-85 (1996). Plaintiff seeks “injunctive and equitable relief to compel Defendants to comply with RCRA and to abate the continuing nuisance and trespass by removing toxic chemicals . . . from soil and groundwater.” See Compl. [Doc. No. 1] at 25 (Prayer for Relief, ¶ b).

         On October 6, 2016, approximately one month after this action was filed, DEQ, OCAT, and Defendants entered into an Amended Voluntary Consent Order for Interim Remedial Measures (the “Consent Order”), which further amended their prior agreement. The Consent Order obligates OCAT and Defendants to address the migration of certain chemical compounds from the manufacturing site to adjacent areas by performing specific activities, including the design and implementation of a remedial action plan to minimize further migration. Although undertaken through DEQ’s voluntary cleanup program, the Consent Order is enforceable as a final order of DEQ, which retains jurisdiction “for the purposes of interpreting, implementing, and enforcing the terms and conditions of this Order and for the purpose of resolving disputes.” See Consent Order [Doc. No. 24-11], ¶ 20. The requirements of the Consent Order will be satisfied only when DEQ gives written notice that OCAT and Defendants “have demonstrated that all the terms of the Order have been completed to the satisfaction of the DEQ.” Id. ¶ 26.

         Defendants first move to dismiss Plaintiff’s RCRA claim for lack of subject matter jurisdiction. They do not challenge Plaintiff’s bases of federal jurisdiction,[3] but instead invoke the doctrine of primary jurisdiction and raise an issue of mootness based on the Consent Order. On these same grounds, Defendants move to dismiss Plaintiff’s state-law tort claims of nuisance and trespass “to the extent those claims seek injunctive relief in light of the ongoing remedial efforts undertaken by [Defendants].” See Defs.’ Mot. Dismiss [Doc. No. 23] at 2. Defendants alternatively move to dismiss the RCRA action for failure to state a claim on which relief can be granted.

         Standard of Decision

         The jurisdictional aspects of Defendants’ Motion are governed by Rule 12(b)(1). Under this rule, where “the movant goes beyond the allegations in the complaint and challenges the facts upon which subject matter jurisdiction depends . . ., the court must look beyond the complaint and has wide discretion to allow documentary and even testimonial evidence.” Paper, Allied-Indus., Chem. & Energy Workers Int’l Union v. Continental Carbon Co., 428 F.3d 1285, 1292 (10th Cir. 2005); see Holt v. United States, 46 F. 3d 1000');">46 F. 3d 1000, 1002-03 (10th Cir. 1995). A court may consider these materials without converting the motion to one for summary judgment under Rule 56 unless “the jurisdictional question is intertwined with the merits of the case.” Holt, 46 F. 3d at 1003; see Pringle v. United States, 208 F.3d 1220, 1222 (10th Cir. 2000); see also Los Alamos Study Group v. U. S. Dep’t of Energy, 692 F.3d 1057, 1063-64 (10the Cir. 1012). The issues are considered to be intertwined where “resolution of the jurisdictional question requires resolution of an aspect of the substantive claim.” Pringle, 208 F.3d at 1223; see Sizova v. Nat’l Inst. Standards & Tech., 282 F.3d 1320, 1324 (10th Cir. 2002).

         In the present Motion, Defendants rely on matters outside the Complaint and so raise a factual attack on jurisdiction. See E.F.W. v. St. Stephen’s Indian High Sch., 264 F.3d 1297, 1303 (10th Cir. 2001) (factual attacks “go beyond the allegations contained in the complaint”). Defendants raise an issue of primary jurisdiction that does not challenge the merits of Plaintiff’s underlying claims, and this aspect of the Motion may properly be decided under Rule 12(b)(1). Regarding mootness, however, the Court finds for reasons discussed infra that this issue is intertwined with the merits of Plaintiff’s RCRA claim and must be decided under Rule 56. The Court declines to convert the Motion to one for summary judgment on the present briefs and the existing record, and reserves this issue for decision after further factual development.


         “Mootness is a threshold issue because the existence of a live case or controversy is a constitutional prerequisite to federal court jurisdiction.” Ind v. Colorado Dep’t of Corr., 801 F.3d 1209, 1213 (10th Cir. 2015) (internal quotation omitted); accord Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1109 (10th Cir. 2010).[4]“[M]ootness is ‘the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).’” S. Utah Wilderness All. v. Smith, 110 F.3d 724, 727 (10th Cir. 1997) (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n.22 (1997)). The central inquiry is whether “circumstances [have] changed since the beginning of litigation that forestall any occasion for meaningful relief.” Id. (internal quotation omitted); see Nat’l Advert. Co. v. City of Denver, 912 F.2d 405, 411 (10th Cir. 1990) (“The relief sought must be capable of addressing the alleged harm.”) (internal quotation omitted). Where a plaintiff seeks prospective injunctive relief, for purposes of the mootness inquiry, “his susceptibility to continuing injury is of particular importance – ‘[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.” Jordan v. Sosa, 654 F.3d 1012, 1024 (10th Cir. 2011) (quoting O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974)) (emphasis in original); see Citizen Ctr. v. Gessler, 770 F.3d 900, 906 (10th Cir. 2014). “A party claiming that there is no longer a live case or controversy bears the burden of demonstrating mootness.” In re Paige, 584 F.3d 1327, 1336 (10th Cir. 2009) (internal quotation omitted).

         In this case, Defendants assert that Plaintiff’s claims for injunctive relief are moot because the Consent Order serves the same purpose and has the same effect as the mandatory injunction sought by the Complaint. Defendants contend the Consent Order and their abatement activities provide the same relief that Plaintiff could obtain under RCRA or the tort claims for injunctive relief. The injunction sought by Plaintiff would “compel Defendants to comply with RCRA and to abate the continuing nuisance and trespass by removing toxic chemicals, including TCE [Trichloroethene] and PCE [Tetrachloroethene], from soil and groundwater.” See Compl. [Doc. No. 1] at 25 (Prayer for Relief, ΒΆ b). Defendants do not contend that abatement of these chemicals has occurred, but that the Consent Order requires abatement and provides the relief Plaintiff seeks. In ...

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