                         UNITED STATES DISTRICT COURT
                         FOR THE DISTRICT OF COLUMBIA

 EL PASO NATURAL GAS COMPANY,                       )
                                                    )
                       Plaintiff,                   )
                                                    )
               v.                                   )   Civil Case No. 07-905 (RJL)
                                                    )
 UNITED STATES OF AMERICA, et al.,                  )
                                                    )
                       Defendants.                  )

                                              l+-
                               MEMORANDUM OPINION
                                    (March'" I , 2009) [# 19]

       PlaintiffEI Paso Natural Gas Company ("EPNG") brings this suit against the

United States, the Department of Energy ("DOE"), and DOE's Secretary, Steven Chu,

among numerous other federal defendants (collectively, "defendants"), I alleging

violations of the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701, et seq., and the

Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §§ 6901, et seq., in

connection with certain properties alleged to be contaminated with residual radioactive

waste. Presently before the Court is defendants' motion to dismiss plaintiffs APA claim

for lack of subject matter jurisdiction. Because the relevant federal statute on which




        The additional federal defendants include: the Nuclear Regulatory Commission ("NRC");
the Environmental Protection Agency ("EPA") and its Administrator, Lisa Jackson; the
Department of the Interior and its Secretary, Kenneth Salazar; the Bureau ofIndian Affairs; the
Department of Health and Human Services and its Secretary, Charles E. Johnson; the Indian
Health Service; and the Department of Defense and its Secretary, Robert Gates. (Am. CompI. at
1 [Dkt. #7].) Pursuant to Federal Rule of Civil Procedure 25( d), the Court has, where
appropriate, substituted the current secretaries for the secretaries who were named in the
Complaint but who no longer hold office.



                                               1
plaintiff s AP A claim is based expressly precludes the form of judicial review plaintiff
                                                2
seeks, the Court will GRANT defendants' motion.

                                       BACKGROUND

I.     The Uranium Mill Tailings Radiation Control Act

       Congress enacted the Uranium Mill Tailings Radiation Control Act

("UMTRCA"), Pub. L. No. 95-604, 92 Stat. 3021, codified at 42 U.S.C. §§ 7901, et seq.,

in 1978 in an effort to "stabilize and control" the radioactive waste generated by the

uranium mill operations that supported the United States' Cold War effort. 42 U.S.C. §

790 1(a)-(b). To achieve this goal, UMTRCA prescribed an ambitious and expeditious

remediation program. Pursuant to UMTRCA § 102, codified at 42 U.S.C. § 7912, DOE

was required to designate uranium mill "processing sites" for DOE remediation at or near

twenty-two specifically identified locations within one year of November 8, 1978. 42

U.S.C. § 7912(a)(1). UMTRCA defined "processing sites" to include both contaminated

uranium mill sites, id. § 7911(6)(A), and any other property "in the vicinity of such site"

that DOE determined to be contaminated with residual radioactive materials (hereinafter

a "vicinity property"), id. § 7911(6)(B).3 As part of DOE's designations, UMTRCA


2
        The defendants' motion does not seek to dismiss plaintiffs RCRA claims. (Defs.' Mem.
In Supp. at 1, n.l [Dkt. #19].) Accordingly, plaintiffs RCRA claims are not affected by this
decision.
3
       UMTRCA's definition of "processing site" provides in pertinent part:
       (6) The term "processing site" means
       (A) any site, including the mill, containing residual radioactive materials at which all or
       substantially all of the uranium was produced for sale to any Federal agency prior to
       January 1, 1971 under a contract with any Federal agency, ... unless (i) such site was
       owned or controlled as of January 1, 1978, or is thereafter owned or controlled, by any
       Federal agency, or (ii) a [NRC or State] [Atomic Energy Act] license ... for the


                                                 2
required DOE to "determine the boundaries" of each site, id. § 7912(a)(2), and include, to

the maximum extent practicable, vicinity properties, id. § 7912(e)(1). Critically,

however, UMTRCA also established in § 7912(e)(2) an exception to DOE's time-limited

designation authority, granting DOE continuing authority beyond the one-year period to

include any vicinity property as part of a processing site designated under UMTRCA if
                                                                                             4
DOE determines such inclusion to be appropriate to carry out UMTRCA's purposes. Id.

§ 7912( e )(2). With the exception of groundwater remediation restoration activities,

UMTRCA required that DOE complete all remediation at designated sites prior to the

termination of its authority under the statute, which Congress revoked on September 30,

1998. Id. § 7922(a)(1). Finally, in pertinent part here, UMTRCA also precludes judicial

review of all "designations made" under § 7912. Id. § 7912( d).

II.    Tuba City, Arizona

       Tuba City, Arizona was one of the locations specifically identified in UMTRCA.

Id. § 7912( a)(1). Plaintiff and its predecessor, Rare Metals Corporation, operated a


       production at such site of any uranium or thorium product derived from ores is in effect
       on January 1, 1978, or is issued or renewed after such date; and
       (B) any other real property or improvement thereon which (i) is in the vicinity of such
       site, and (U) is determined by [DOE], in consultation with the [NRC], to be contaminated
       with residual radioactive materials derived from such site.
42 U.S.C. § 7911(6)(A)-(B) (emphasis added).
4
       Section 7912(e)(2) states in full:
       Notwithstanding the one year limitation contained in this section, the Secretary may, after
       such one year period, include any area described in section 7911 (6)(B) of this title
       [defining a vicinity property] as part of a processing site designated under this section if
       he determines such inclusion to be appropriate to carry out the purposes of this
       SUbchapter.
42 U.S.c. § 7912(e)(2).


                                                3
uranium processing mill (the "Mill") near Tuba City from approximately 1956 to 1966.

(Am. Compl." 3,27 [Dkt. #7].) The Mill, which was located on the Navajo Nation

Reservation and near the Hopi Reservation, generated a significant amount of radioactive

mill tailings and other waste. (Id." 1,3.) Following UMTRCA's enactment, DOE

designated the Mill a processing site under § 7912 and subsequently undertook

remediation efforts. (Id." 58-60, 64.) While surface remedial action at the Mill site has

since ceased, DOE continues to have an active groundwater remediation system in place.

       In the early 2000s, the Navajo and Hopi Tribes identified two sites near the Mill

that allegedly also contain radioactive and other waste materials generated by the Mill.

(Id. , 68.) The first, known as the Tuba City Dump, is located on both Navajo and Hopi

Reservation land. (Id., 1.) The second, known as the Highway 160 Site, is located on

the Navajo Reservation. (Id.) Neither site was included as a vicinity property in DOE's

1979 designation of the Mill, and DOE has not taken any remedial actions in connection

with either site (hereinafter the "Properties"). (Id., 61.)

III.   DOE Correspondence & the Present Lawsuit

       Plaintiff alleges that in December 2003, the Navajo Nation wrote DOE a letter

requesting that the Properties be remediated as vicinity properties under UMTRCA. (Id.

'69.) DOE responded on April 22, 2004 in a letter in which it allegedly issued a

determination that the Properties were not vicinity properties under UMTRCA and, based

on that determination, refused to provide ground water remediation. (Id., 70.) As a

result, the Tribes have allegedly turned their sights on plaintiff, suing or threatening to

sue plaintiff in order to force plaintiff to fund the Properties' remediation and compensate


                                              4
the Tribes for personal injuries. (ld. ~~ 7, 76.) Plaintiff filed this suit in May 2007 in an

effort to avoid such liability, alleging as its primary claim that DOE's decision not to

designate the Properties as vicinity properties under UMTRCA is arbitrary and capricious

and seeking a declaration under the APA and the Declaratory Judgment Act, 28 U.S.C. §

2201, that DOE is responsible for the Properties' remediation. s (CompI. ~~ 90,93 [Dkt.

#1]; Am. CompI.    ~~   99, 102.) On April 18,2008, defendants moved to dismiss plaintiffs

APA claim. 6

                                     LEGAL STANDARD

        As courts of limited jurisdiction, federal courts "have only the power that is

authorized by Article III of the Constitution and the statutes enacted by Congress

pursuant thereto." Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). In

every case, therefore, "the jurisdictional requirements of Article III must be present

before a court may proceed to the merits." Moms Against Mercury v. FDA, 483 F.3d

824,826 (D.C. Cir. 2007) (citing Steel Co. v. Citizens/or a Better Env't, 523 U.S. 83,94-

95 (1998)). When evaluating subject matter jurisdiction, plaintiffs bear the burden of

proof. See id. at 828.



5
        Plaintiff also alleges as part of its APA claim that, in connection with DOE's decision not
to designate the Properties as vicinity properties, DOE, EPA and the NRC failed to comply with
UMTRCA's public participation provision, 42 U.S.c.§ 7921, which requires the agencies to
"encourage public participation and, where appropriate, ... hold public hearings" when carrying
out UMTRCA. (Am. CompI. ~~ 74, 100.) Plaintiff characterizes its RCRA claims as secondary,
(Am. CompI. ~ 2), and, as noted above, they are not relevant to this decision.
6
        In addition to contending that plaintiff s AP A claim is precluded by UMTRCA,
defendants contend that plaintiff lacks prudential standing and has failed to identify a reviewable
final agency action. (Defs.' Mot. to Dismiss at 1-2 [Dkt. #19].)


                                                 5
                                        ANALYSIS

        While the AP A provides a limited waiver of the United States' sovereign

immunity with respect to certain agency actions, that waiver does not apply where a

statute explicitly precludes judicial review. 5 U.S.C. §§ 701(a)(I), 702, 704; Heckler v.

Chaney, 470 U.S. 821, 828 (1985). Courts, however, must carefully analyze statutory

provisions precluding review, because there is "strong presumption that Congress intends

judicial review of administrative action." Bowen v. Mich. Acad. of Family Physicians,

476 U.S. 667, 670 (1986) (noting that courts should not cut off judicial review of agency

actions "unless there is persuasive reason to believe that such was the purpose of

Congress" (citing Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967)). In this case,

UMTRCA expressly provides in § 7912(d) that "[t]he designations made ... by [DOE]

under this section shall be final and not be subject to judicial review." 42 U.S.C. §

7912(d). Accordingly, whether plaintiffs APA claim is precluded turns on whether

DOE's purported decision to not include the Properties as part of the Mill processing site

pursuant to § 7912( e)(2) constituted a "designation made." Based on a plain reading of

the statute, I find that it did.

       Plaintiff attempts to draw a distinction between "designations made" in the year

following November 8, 1978 pursuant to § 7912(a) and DOE's authority under §

7912( e)(2) to "include" vicinity properties "as part of a processing site designated under

[§ 7912]" after the expiration of the one-year period. (Pl.'s Mem. In Opp'n at 20-22

[Dkt. #20].) Plaintiff, however, parses § 7912 too narrowly. As an initial matter, it is

clear that § 7912( d) itself imposes no temporal or other limitation on its application, but


                                              6
rather applies to any "designation made," whether before or after November 8, 1979. 42

U.S.C. § 7912(d) (precluding judicial review of "designations made ... under this

section" (emphasis added)). More importantly, a plain reading ofUMTRCA indicates

that a DOE decision to "include" a vicinity property within a processing site is, in fact,

part and parcel of DOE's "designation" of the processing site itself. Rather than define

"vicinity property" as an entity unto itself, UMTRCA includes the definition of vicinity

property within its definition of "processing site." 42 U.S.C. § 791 I (6)(B). As a result,

to "include" a vicinity property within a processing site is nothing more than to designate

the scope - or boundaries - of the processing site. See id. § 7912(a)(2) (directing DOE to

"determine the boundaries" of each processing site "as part of [its] designation" of

processing sites in the year immediately following November 8, 1978). This conclusion

is exemplified by the use of the word "include" in § 7912( e)( 1), which provides that

"[t]he designation of processing sites within one year after November 8, 1978, ... shall

include, to the maximum extent practicable, the areas referred to in section 7911(6)(B)

[defining vicinity properties]." Id. § 7912(e)(I) (emphasis added). And finally, the fact

that § 7912( e)(2) explicitly authorizes DOE to "include" vicinity properties as part of

designated processing sites after the one-year designation limitation similarly buttresses

this conclusion. Surely the language in § 7912( e)(1) referencing the one-year designation

limitation would be superfluous if including a vicinity property in a processing site was

not a component of the designation of the site itself. Accordingly, plaintiff's attempt to




                                             7
distinguish the inclusion of a vicinity property as part of a processing site after November

8, 1979, from the "designation" of the processing site itself is unavailing. 7

        Plaintiff next argues that even if DOE's purported decision to not include the

Properties as part of the Mill processing site was in fact a designation, it was not a

designation "made," but a designation "not made," and therefore § 7912( d) is

inapplicable. I disagree. While facially appealing, plaintiffs argument fails upon closer

inspection. To begin with, to read § 7912(d) in such a constrained manner would be to

ignore the reality that any decision to take an affirmative action necessarily is a decision

to not take its inverse. See, e.g., 5 U.S.C. § 551(13) (defining "agency action" under the

AP A to include not only affirmative actions taken, but also the "denial thereof' and the

"failure to act"). In the UMTRCA context, for example, a DOE decision to designate a

given parcel of property as a processing site inherently includes a decision to not

designate whatever property lies just outside the site's boundaries. Moreover, where, as

here, plaintiffs challenge is to a failure to include certain properties as vicinity properties

after the initial designation of the processing site, the challenge is necessarily a challenge

to the initial "designation made." As discussed above, UMTRCA makes clear that the

inclusion of a vicinity property as part of a processing site is not an isolated event, but

7
         Notably, plaintiffs argument on this point is also belied by plaintiffs own allegations.
The Amended Complaint's first numbered paragraph begins: "This is a civil action relating to ..
 . DOE's decision not to deSignate certain sites containing residual radioactive materials ... as
 'vicinity properties' pursuant to [UMTRCA], 42 U.S.C. §§ 7912(a) & (e)." (Am. CompI. ~ 1
(emphasis added).) Moreover, the Amended Complaint states that plaintiff "requests a judicial
determination that ... DOE failed to designate vicinity properties of the Mill ... prior to and
following November 8, 1979 to the maximum extent practicable as required by Section 7912 of
UMTRCA, 42 U.S.C. §§ 7912(a) & (e)." (Am. CompI. ~ 8 (emphasis added); see also id ~~ 14,
67, 74, 75, 96, 97, 99.)


                                                8
rather is a component of the processing site's designation, even if temporally separate.

Plaintiffs distinction between designations "made" and designations "not made,"

therefore, is illusory. See Sierra Club v. Edwards, No. 81-1368, 1983 U.S. Dist. LEXIS

17625, at   * 9-10 (D.D.C. Apr.   18, 1983) (contrasting a challenge to the rate at which

DOE was considering designations of vicinity properties, which § 7912(d) did not bar,

with challenging the "appropriateness of designating or refusing to designate a particular

location as a vicinity property" (emphasis added)). Accordingly, for the foregoing

reasons, the plain language and structure of UMTRCA provide "clear and convincing

evidence" that Congress intended to preclude judicial review over plaintiffs APA claim,

                                                                                         8
Abbott Labs., 387 U.S. at 141, and therefore the Court must, and will, dismiss it.



8
         Defendants also move to dismiss plaintiff s AP A claim on prudential standing grounds,
arguing that plaintiff s economic interests in avoiding liability do not fall within the zone of
interests protected by UMTRCA. (Defs.' Mem. In Supp. at 11-14.) Because the Court finds, at
a minimum, that it lacks subject matter jurisdiction over plaintiff s AP A claim because it is
precluded under UMTRCA, the Court need not address the closer question of whether plaintiff
has prudential standing. Finally, to the extent the public participation portion of plaintiffs APA
claim, see supra note 5, is not foreclosed by UMTRCA's limitation on judicial review, the Court
also determines that plaintiff fails to identify a reviewable "final agency action." See Bennett v.
Spear, 520 U.S. 154, 177-78 (1997) (establishing two conditions that must be met in order for
agency action to be sufficiently final for review under the APA). First, the context and text of
the April 22, 2004 DOE letter on which plaintiff relies make clear that DOE did not issue a
"definitive" determination as to whether the Properties were vicinity properties under UMTRCA.
Instead, DOE's only conclusive act in the letter was its acceptance of the Navajo Nation's
request for a meeting. (Defs.' Mot. to Dismiss, Ex. 4, DOE Letter 2). Moreover, the letter did
not set, or reject, any DOE obligations, but instead only informed the Navajo Nation of DOE's
understanding of the relevant state of affairs. And finally, whatever potential liability plaintiff
faces flows not from the DOE letter, but from the status quo, which the DOE letter identified but
did not definitively affirm or alter. Simply stated, the DOE letter "left the world just as it found
it," Indep. Equip. Dealers Ass 'n v. EPA, 372 F.3d 420, 428 (D.C. Cir. 2004), and therefore it was
not a final agency action. Accordingly, plaintiffs APA claim, including its public participation
component, must also be dismissed under Rule 12(b)(6) for failure to state a claim. John Doe,
Inc. v. Drug Enforcement Admin., 484 F.3d 561, 565 (D.C. Cir. 2007) ("When judicial review is
sought under the APA, ... the requirement of 'final agency action' is not jurisdictional.").



                                                 9
                                   CONCLUSION

      Thus, for all the foregoing reasons, the Court GRANTS defendants' motion to

dismiss plaintiff s AP A claim. An appropriate Order will issue with this Memorandum

Opinion.

                                                      A



                                              ~
                                              United States District Judge




                                         10
