In Colorado Department of Public Health & Environment v. United States, No. 17-cv-02223-RM-SKC, 2018 U.S. Dist. LEXIS 35427 (D. Colo. Mar. 13, 2019), the court held that a lawsuit brought by the Colorado Department of Public Health and Environment (CDPHE) against Shell Oil Company (Shell) and the United States can continue, in part.
Rocky Mountain Arsenal (RMA) is a former military installation where Shell and the United States disposed of waste in an impoundment known as “Basin F.” CDPHE filed suit alleging, that 1) Shell and the United States failed to obtain a required post-closure permit for Basin F; and 2) the United States transferred a parcel of RMA to Commerce City in 2007. The Environmental Protection Agency (EPA) has delegated Resource Conservation and Recovery Act (RCRA) enforcement authority over RMA to the CDPHE.
Shell moved to dismiss arguing that it was not an “operator” at Basin F, and therefore was not required to obtain a post-closure permit. The court found that the CDPHE complaint did state a cognizable claim that Shell is an operator at Basin F, because it makes decisions related to regulatory compliance and the funding of the site cleanup.
The United States moved to dismiss, arguing that sovereign immunity prevented a claim against it for the alleged illegal land transfer to Commerce City, as well as the failure to obtain a post-closure permit. The court found otherwise on both motions. The court noted that 42 U.S.C. § 6961 expressly waived sovereign immunity for the post-closure permit claim. In finding the United States waived sovereign immunity with respect to the land transfer, the court relied on Chevron Mining Inc. v. United States, 863 F. 3d 1261 (10th Cir. 2017), which held that Section 9620 of CERCLA, 42 U.S.C. § 9620, abrogates sovereign immunity for land transfer claims arising under CERCLA.
The court, however ultimately dismissed the claim for the land transfer to Commerce City, finding that a six-year statute of limitations barred the claim, because the transfer occurred in 2007.
Brett Taylor, Taft summer associate contributed to this article.