Anacostia Riverkeeper v. Washington Gas Light Company ( 2012 )


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  •                               UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    )
    ANACOSTIA RIVERKEEPER, et al.,               )
    )
    )
    Plaintiffs,                  )
    )
    v.                                   )      Civil Action No. 11-1453 (RMC)
    )
    WASHINGTON GAS LIGHT                         )
    COMPANY,                                     )
    )
    )
    Defendant.                   )
    )
    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
    2
    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 1 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
    1
    DNAPL is tar or “Dense Nonaqueous Phase Liquid.”
    3
    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
    4
    required publication, receipt of comments, and consideration of comments, 2 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, 3
    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.
    2
    The notice and comment period yielded two sets of comments, one from the Plaintiffs in this
    case and one from the Historic Anacostia Boating Association.
    3
    The United States explains that the delay in filing the Final Consent Decree was caused by the
    unusually complex nature of the negotiations because of the number of agencies (federal and
    state) and because the soil remedy and the RI/FS required by the consent decree involve
    complicated technical issues.
    5
    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 CERCLA’s “timing of review”
    provision bars Plaintiffs’ Complaint.
    II. LEGAL STANDARD
    Pursuant to Federal Rule of Civil Procedure 12(b)(1), a defendant may move to
    dismiss a complaint, or any portion thereof, for lack of subject matter jurisdiction. Fed. R. Civ.
    P. 12(b)(1). When reviewing a motion to dismiss for lack of jurisdiction under Rule 12(b)(1), a
    court must review the complaint liberally, granting the plaintiff the benefit of all inferences that
    can be derived from the facts alleged. Barr v. Clinton, 
    370 F. 3d 1196
    , 1199 (D.C. Cir. 2004).
    Nevertheless, “the court need not accept factual inferences drawn by plaintiffs if those inferences
    are not supported by facts alleged in the complaint, nor must the Court accept plaintiff’s legal
    conclusions.” Speelman v. United States, 
    461 F. Supp. 2d 71
    , 73 (D.D.C. 2006).
    To determine whether it has jurisdiction over the claim, a court may consider
    materials outside the pleadings. Settles v. U.S. Parole Comm’n, 
    429 F.3d 1098
    , 1107 (D.C. Cir.
    2005). No action of the parties can confer subject matter jurisdiction on a federal court because
    subject matter jurisdiction is an Article III and a statutory requirement. Akinseye v. Dist. of
    Columbia, 
    339 F.3d 970
    , 971 (D.C. Cir. 2003). The party claiming subject matter jurisdiction
    bears the burden of demonstrating that such jurisdiction exists. Khadr v. United States, 
    529 F.3d 1112
    , 1115 (D.C. Cir. 2008); see Kokkonen v. Guardian Life Ins. Co. of America, 
    511 U.S. 375
    ,
    377 (1994) (noting that federal courts are courts of limited jurisdiction and “[i]t is to be
    presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the
    contrary rests upon the party asserting jurisdiction.”) (internal citations omitted).
    6
    III. ANALYSIS
    Section 104(a) of CERCLA authorizes the President, and, by delegation, specific
    federal agencies including the Department of the Interior (of which NPS is a part), to undertake
    removal and remedial actions when a hazardous substance is released into the environment. 
    42 U.S.C. § 9604
    (a) 4. CERCLA defines such response actions as:
    The terms “remove” or “removal” means the cleanup or removal of
    released hazardous substances from the environment, such actions
    as may be necessary taken in the event of the threat of release of
    hazardous substances into the environment, such actions as may be
    necessary to monitor, assess, and evaluate the release or threat of
    release of hazardous substances, the disposal of removed material,
    or the taking of such other actions as may be necessary to prevent,
    minimize, or mitigate damage to the public health or welfare or to
    the environment, which may otherwise result from a release or
    threat of release . . . .
    The terms “remedy” or “remedial action” means those actions
    consistent with permanent remedy taken instead of or in addition to
    removal actions in the event of a release or threatened release of a
    hazardous substance into the environment, to prevent or minimize
    the release of hazardous substances . . . .
    
    42 U.S.C. § 9601
    (23) - (24). The relevant agency may choose to order or negotiate with the
    party to implement the selected response actions. See 
    42 U.S.C. §§ 9606
    (a), 9622(d).
    4
    The statute reads:
    Whenever (A) any hazardous substance is released or there is a substantial
    threat of such a release into the environment, or (B) there is a release or
    substantial threat of release into the environment of any pollutant or
    contaminant which may present an imminent and substantial danger to the
    public health or welfare, the President is authorized to act . . . to remove or
    arrange for the removal of, and provide for remedial action relating to
    such hazardous substance, pollutant, or contaminant at any time (including
    its removal from any contaminated natural resource), or take any other
    response measure consistent with the national contingency plan which the
    President deems necessary to protect the public health or welfare or the
    environment.
    
    42 U.S.C. § 9604
    (a).
    7
    CERCLA itself shields pending CERCLA response actions from lawsuits that
    might otherwise interfere with an “expeditious cleanup effort.” New Mexico v. Gen. Elec. Co.,
    
    467 F.3d 1223
    , 1249 (10th Cir. 2006). It accomplishes this through its timing of judicial review
    provision, § 113(h). See 
    42 U.S.C. § 9613
    (h). Section 113(h) states: “No Federal court shall
    have jurisdiction under Federal law . . . to review any challenges to removal or remedial action
    selected under section [104 of CERCLA], in any action except one of the following
    [exceptions].” 
    Id.
     § 9613(h). “A suit challenges a remedial action within the meaning of
    [§]113(h) if it interferes with the implementation of a CERCLA remedy.” Broward Gardens
    Tenants Ass'n v. EPA, 
    311 F.3d 1066
    , 1072 (11th Cir. 2002).
    A. Application of § 113(h) to RCRA Suits
    Plaintiffs argue that § 113(h) does not apply to this RCRA endangerment action
    and that the Court should find that Congress barred only additional CERCLA enforcement
    actions in § 113(h). They base their argument on the statute’s list of exceptions to the § 113(h)
    bar, which allows certain suits under CERCLA to go forward despite response actions, but does
    not address suits under other statutes. Section 113(h) lays out five exceptions to its jurisdictional
    bar: (1) actions to recover costs and damages or for contribution under CERCLA; (2) actions to
    enforce orders issued under CERCLA; (3) actions for reimbursement of compliance costs in
    connection with a CERCLA action; (4) citizen suits alleging that a removal or remedial action
    violated CERCLA; and (5) actions by the United States to compel a CERCLA remedial action.
    
    42 U.S.C. § 9613
    (h)(1) - (5).
    Plaintiffs’ argument is logically strained: exceptions to the jurisdictional bar that
    advance CERCLA enforcement can hardly be said to authorize lawsuits under other statutes. In
    addition, the plain language of § 113(h) runs counter to the argument. Congress very clearly
    8
    stated that no action in federal court may proceed to challenge CERCLA enforcement. Id.
    § 9613(h). Thus § 113(h) “effectuates a ‘blunt withdrawal of federal jurisdiction.’” Oil, Chem.
    & Atomic Workers Int'l Union, AFL-CIO v. Richardson, 
    214 F.3d 1379
    , 1382 (D.C. Cir. 2000)
    (quoting N. Shore Gas Co. v. EPA, 
    930 F.2d 1239
    , 1244 (7th Cir. 1991)). “[T]he unqualified
    language of the section precludes any challenges to CERCLA Section 104 clean-ups, not just
    those brought under other provisions of CERCLA.” McClellan Ecological Seepage Situation v.
    Perry, 
    47 F.3d 325
    , 328 (9th Cir. 1995) (internal quotation marks and citation omitted); see also
    Boarhead Corp. v. Erickson, 
    923 F.2d 1011
    , 1020 (3d Cir. 1991) (“Congress could hardly have
    chosen clearer language to express its intent generally to deprive the district court of jurisdiction
    over claims based on other statutes when the EPA undertakes the clean-up of toxic wastes . . .
    .”). 5
    For example, the D.C. Circuit has found that a suit for violation of the National
    Environmental Policy Act, 
    42 U.S.C. § 4321
     et. seq., was barred when the Department of Energy
    had already begun a CERCLA removal action. Oil, Chem. & Atomic Workers, 
    214 F.3d at
    1382-
    83. Other circuits have likewise found RCRA enforcement actions barred by § 113(h).
    McClellan, 
    47 F.3d at 329
     (“Although judicial review is an important element in the enforcement
    of laws such as RCRA and the Clean Water Act, Congress has determined that the need for swift
    execution of CERCLA cleanup plans outweighs this concern”); Clinton Cnty. Comm'rs v. EPA,
    5
    Plaintiffs emphasize that § 113(h)(4) allows CERCLA citizen suits only after a remedial or
    removal action is complete. See Schalk v. Reilly, 
    900 F.2d 1091
    , 1095 (7th Cir. 1990). They
    argue that this means the litigation bar in § 113(h) applies only to CERCLA. “However, the
    method of section 113(h) is not to toll judicial remedies, and leave it at that; it is to specify the
    remedies that survive.” N. Shore Gas, 
    930 F.2d at 1245
    . Thus, by specifying timing for
    CERCLA citizen suits to after government remediation, Congress was not limiting the scope of
    the § 113(h) jurisdictional bar. See New Mexico, 467 F.3d at 1249 (“[T]he obvious meaning of
    [§ 113(h)] is that when a remedy has been selected, no challenge to the cleanup may occur prior
    to completion of the remedy.”). Most actions “challenging” a CERCLA response will be moot
    at the point the cleanup process is completed. N. Shore Gas, 
    930 F.2d at 1245
    .
    9
    
    116 F.3d 1018
    , 1027 (3d Cir. 1997) (holding that § 113(h) precludes jurisdiction “over any
    challenge to a CERCLA action based on a violation of any other federal law.”); Ark. Peace Cntr.
    v. Ark. Dep’t of Pollution Control & Ecology, 
    999 F.2d 1212
    , 1217-18 (8th Cir.1993) (holding
    that plain wording of § 113(h) requires that a suit under RCRA is barred if it challenges a
    CERCLA response action); OSI, Inc. v. United States, 
    525 F.3d 1294
    , 1297-98 (11th Cir. 2008)
    (If a “remedial action was selected under [§ 104], then the district court lacked jurisdiction over
    the RCRA citizen suit until the cleanup action was complete.”); N. Shore Gas, 
    930 F.2d at 1244
    (finding a suit under RCRA barred by § 113(h)). 6
    Despite this precedent, Plaintiffs argue that applying § 113(h) here would “repeal
    by implication” RCRA’s own claim preclusions. RCRA itself bars citizen endangerment suits
    when the federal government (1) has commenced and is prosecuting a RCRA enforcement action
    under § 7002, 
    42 U.S.C. § 6973
    , or a CERCLA abatement action under § 106 of CERCLA, 
    42 U.S.C. § 9606
    ; (2) “is actually engaging in a removal action under [CERCLA]”; (3) “has
    incurred costs to initiate a Remedial Investigation and Feasibility Study . . . and is diligently
    proceeding with a remedial action under [CERCLA]”; or (4) “has obtained a court order
    (including a consent decree) or issued an administrative order” under § 106 of CERCLA. 
    42 U.S.C. § 6972
    (b)(2)(B)(i) - (iv). Plaintiffs assert that “where a federal agency has undertaken
    and completed some initial study or other removal action but not actually moved forward with a
    final remedial plan, RCRA allows [a citizen] suit, but CERCLA does not.” Pls.’ Opp’n [Dkt. 9]
    at 14. According to Plaintiffs, RCRA allows citizen suits before the federal government has
    begun to implement a CERCLA remediation plan “diligently.” 
    Id.
     Since RCRA itself would
    6
    But see United States v. Colorado, 
    990 F.2d 1565
     (10th Cir. 1993), in which the Tenth Circuit
    allowed a RCRA enforcement action brought by a State under § 7002(a)(1)(B), relying in part on
    the section of CERCLA that states, “[n]othing in [CERCLA] shall be construed or interpreted as
    preempting any State from imposing any additional liability or requirements with respect to the
    release of hazardous substances within [the] State.” 
    990 F.2d at
    1575 (citing 42 U.S.C. 9614(a)).
    10
    allow their suit – the federal government having not been diligent – Plaintiffs argue that applying
    § 113(h) to bar their suit would repeal RCRA’s preclusion provisions by implication.
    Plaintiffs rely on legal maxims to support their argument. “It is a cardinal
    principle of construction that repeals by implication are not favored. When there are two acts
    upon the same subject, the rule is to give effect to both if possible.” United States v. Borden Co.,
    
    308 U.S. 188
    , 198 (1939). “In the absence of some affirmative [congressional] showing of an
    intention to repeal, the only permissible justification for a repeal by implication is when the
    earlier and later statutes are irreconcilable.” Morton v. Mancari, 
    417 U.S. 535
    , 550 (1974).
    Repeals by implication are “never [permitted] . . . when the former act can stand together with
    the new act.” Ex parte Yerger, 
    75 U.S. 85
    , 105 (1868).
    Contrary to Plaintiff’s fundamental argument, the preclusion provisions of RCRA
    and CERCLA are not irreconcilable. Both statutes preclude RCRA suits under specified
    conditions, but CERCLA § 113(h) is broader and bars suits under multiple statutes. RCRA’s
    terms clearly apply when two or more RCRA endangerment actions are at issue. CERCLA
    “trumps” RCRA and other statutes when CERCLA remediation is under question or attack. This
    Court can easily recognize separate effects from each statute. 7
    Plaintiffs also cite the principle that a more general statute should not overcome
    specific statute. This principle does not pertain here. These two statutes may overlap in certain
    respects but may also readily co-exist. “[W]hen two statutes are capable of co-existence, it is the
    duty of the courts . . . to regard each as effective.” Radzanower v. Touche Ross & Co., 
    426 U.S. 148
    , 155 (1976) (quoting Morton, 
    417 U.S. at 551
    ) (ellipses in original). Section 113(h) and
    7
    For this reason, Plaintiffs’ argument that the coexistence of CERCLA and RCRA’s preclusion
    provisions makes RCRA meaningless also has no traction. “[R]edundancies across statutes are
    not unusual events in drafting, and so long as there is no positive repugnancy between the two
    laws . . . a court must give effect to both.” Conn. Nat’l Bank v. Germain, 
    503 U.S. 249
    , 253
    (1992) (internal citation and quotation marks omitted).
    11
    RCRA’s preclusion provisions do not cover all of the same circumstances; even so, they reach
    the same result where they overlap. The statutes do not conflict and the Court may find both
    effective.
    Finally, Plaintiffs argue that CERCLA § 302(d), 
    42 U.S.C. § 9652
    (d), shows that
    RCRA citizen suits are not barred by § 113(h). Section 302(d) states that nothing in CERCLA
    “shall affect or modify in any way the obligations or liabilities of any person under other Federal
    or State law, including common law, with respect to releases of hazardous substances or other
    pollutants or contaminants.” 
    42 U.S.C. § 9652
    (d). Plaintiffs overlook the more applicable
    CERCLA savings clause, at § 310(h), which states:
    [CERCLA] does not affect or otherwise impair the rights of any
    person under Federal, State, or common law, except with respect to
    the timing of review as provided in section [113](h) . . . .
    
    42 U.S.C. § 9659
    (h) (emphasis added). In this comparison, the specific does overcome
    the general and § 310(h) makes the primacy of CERCLA § 113(h) explicit.
    B. CERCLA Response Action
    Plaintiffs seek to avoid CERCLA on the basis that there is no ongoing CERCLA
    response action at the NPS Site. In advancing this argument, Plaintiffs argue that the response
    actions selected for the other four aspects of the overall site should be deemed constructively
    complete and therefore § 113(h) should not apply to their suit. They further dispute whether the
    NPS ROD actually selected a response action under CERCLA for contaminated sediments in the
    Anacostia River.
    With respect to the groundwater and DNAPL remedies, Plaintiffs argue that
    “[b]ecause both systems will be left in place indefinitely, completeness is measured not by
    whether they continue to operate but by whether they were installed and brought online.” Pls.’
    12
    Opp’n at 24. Plaintiffs agree that both of these remedies are “‘underway’ in a literal sense.” Id.
    Nonetheless they argue that the Court should treat these actions as now complete because neither
    has a discernible termination date (which would allow a RCRA suit thereafter). Id.
    Likewise, Plaintiffs urge the Court to deem all soil remedies at the NPS Site
    “constructively complete” because NPS has selected but failed to implement a remedial plan,
    despite the passage of several years. Id. at 29. This approach is necessitated, according to
    Plaintiffs’ argument, or § 113(h) would become an absolute bar to judicial review. Plaintiffs
    insist that the “neglect” shown by the United States to the NPS Site should lift the insulation that
    CERCLA actions enjoy from review. Id. at 30.
    In essence, Plaintiffs argue that § 113(h)’s withdrawal of federal court jurisdiction
    may not indefinitely bar judicial review. Faced with a remedy of lengthy but uncertain duration,
    which they consider wholly inadequate, Plaintiffs advance a theory of “constructive completion”
    to void CERCLA’s litigation bar. The Court cannot accept the theory on this record. It is true
    that the application of § 113(h) “may in some cases delay judicial review for years, if not
    permanently . . . . Whatever its likelihood, such a possibility is for legislators, and not judges, to
    address.” McClellan, 
    47 F.3d at 329
    ; see also Schalk, 
    900 F.2d at 1095
     (“The obvious meaning
    of [§ 113(h)] is that when a remedy has been selected, no challenge to the cleanup may occur
    prior to completion of the remedy.”). While there may be cases where government inaction may
    cause a court to look more closely at whether a CERCLA response action has been selected or is
    being pursued diligently, this is not that case. Cf. Frey v. EPA, 
    403 F.3d 828
    , 835 (7th Cir.
    2005) (addressing a situation where CERCLA environmental studies had been ongoing for years
    but no remedial action had been selected). Whatever might be said about the years it took for
    13
    the United States to take CERCLA actions vis-à-vis the NPS Site, there can be no doubt that it is
    moving ahead diligently now.
    Plaintiffs focus particularly on an alleged gap in remedial actions to address
    contaminated sediments in the Anacostia River. They characterize the “intent for future action”
    described in the NPS ROD as lacking sufficient specificity to constitute remedial or removal
    action under CERCLA and thus insufficient to foreclose judicial review. But, as Plaintiffs
    reluctantly recognize, CERCLA includes “such actions as may be necessary to monitor, assess,
    and evaluate the release or threat of release of hazardous substances” within the meaning of
    “remove” or “removal.” 
    42 U.S.C. § 9601
    (23). The NPS ROD calls for exactly this type of
    action. See Razore v. Tulalip Tribes of Washington, 
    66 F.3d 236
    , 239 (9th Cir. 1995) (holding
    that a RI/FS whose objective was to make an informed choice amongst possible cleanup
    alternatives satisfied the definition of a removal action under CERCLA); Broward Gardens, 
    311 F.3d at 1071
     (stating CERCLA removal actions “include actions to study and clean up
    contamination”); Jach v. Am. Univ., 
    245 F. Supp. 2d 110
    , 113 (D.D.C. 2003) (CERCLA cleanup
    process is divided into short term “removal” actions (actions to study and clean up
    contamination) and permanent or long term “remedial” actions (actions taken instead of or in
    addition to removal)). The consent decree proposed in Case No. 11-2199 includes specifics on
    such an investigation and study.
    Frey v. EPA, 
    403 F.3d 828
    , in which the Seventh Circuit rejected EPA’s plan to
    study river sediment and water contamination as a CERCLA “removal action” sufficient to
    trigger § 113(h), is not convincing. In that case, EPA had completed excavation of contaminated
    soil but continued water and sediment investigations, without more, for at least another five
    years. The Seventh Circuit became impatient and decided that EPA could not “preclude review
    14
    by simply pointing to ongoing testing and investigation, with no clear end in sight.” 
    403 F.3d at 835
    . This Court is not persuaded to follow Frey, especially when the proposed consent decree is
    so close to fruition. Plaintiffs do not dispute that active remediation efforts have been on-going
    by Washington Gas for years. They concentrate their concerns on the alleged neglect of the
    sediment in the Anacostia River. The proposed consent decree addressed the sediment which is,
    in truth, but a part of the overall recovery effort.
    Lastly, Plaintiffs argue that the transfer of the NPS Site to the District of
    Columbia, through which the District of Columbia and NPS agreed to reassess the
    appropriateness of the NPS ROD, renders all remedies selected in the NPS ROD so transient that
    they should be deemed “constructively complete.” Whatever the value of Plaintiffs’
    constructive completion theory in other situations, it fails here. Were it applicable, it was at a
    time before the proposed final consent decree containing specific selected remedies came before
    the Court for review and approval.
    C. The River Site
    Plaintiffs allege that the Anacostia River itself is adjacent to the NPS Site and that
    no CERCLA response actions are selected or ongoing for that site. This is wrong as a matter of
    fact, as a review of the proposed final consent decree makes immediately obvious. The Site that
    is covered by the proposed consent decree includes property adjacent to, under, and in the
    Anacostia River, and the river’s sediments are an identified focus of the study and further
    selection of remediation methods.
    D. Non-Challenge to CERCLA Response Action
    As a final argument, Plaintiffs contend that this law suit is not a challenge to any
    CERCLA response actions within the meaning of § 113(h). The question is whether Plaintiffs’
    15
    complaint would “interfere[] with the implementation of a CERCLA [response],” Broward
    Gardens, 
    311 F.3d at 1072
    , or is related to the goals of the cleanup. Razore, 
    66 F.3d at 239
    .
    “To determine whether a suit interferes with, and thus challenges, a cleanup, courts look to see if
    the relief requested will impact the . . . action selected.” Broward Gardens, 
    311 F.3d at 1072
    .
    “[L]itigation which interferes with even the most tangential aspects of a cleanup action is
    prohibited.” Oil, Chem. & Atomic Workers Int'l Union, AFL-CIO v. Pena, 
    62 F. Supp. 2d 1
    , 10
    (D.D.C. 1999), aff'd sub nom. Oil, Chem. & Atomic Workers Int'l Union, AFL-CIO v.
    Richardson, 
    214 F.3d 1379
    .
    Plaintiffs claim that “granting [their requested] relief would not require the Court
    to interfere with the selected remedial plan in any way — either by adding, changing, or
    removing actions, by disrupting ongoing selection processes, or by altering the timeline” because
    it “would require only that the Court implement the NPS ROD.” Pls.’ Opp’n at 34. Plaintiffs
    mischaracterize their own complaint, which asks the Court to order “Washington Gas to take all
    such actions as may be necessary to eliminate any endangerment” from hazardous contamination
    at the site. Compl. at 15 (Relief Requested). Such a remedy fashioned and ordered by the Court
    would most certainly interfere with the implementation of the proposed CERCLA remedies.
    Broward Gardens, 
    311 F.3d at 1073
     (“Because the complaint seeks to have the court modify or
    replace the remedial plan . . . , it clearly is a challenge to the selected remedial plan.”).
    Even if Plaintiffs’ characterization of the complaint were to be credited, the relief
    they seek would still constitute a “challenge” to a CERCLA response action. “[C]hallenges to
    the procedure employed in selecting a remedy nevertheless impact the implementation of the
    remedy and result in the same delays Congress sought to avoid by passage of [CERCLA] . . . .
    The judicial review itself slows the process down.” Schalk, 
    900 F.2d at 1097
     (dismissing suit by
    16
    which plaintiff sought a court order requiring EPA to conduct studies and conduct public
    hearings); see also Boarhead, 
    923 F.2d at 1019
     (“Congress enacted CERCLA so that the
    [executive] would have the authority and the funds necessary to respond expeditiously to serious
    hazards without being stopped in its tracks by legal entanglement before or during the hazard
    clean-up.”). Plaintiffs fail to distinguish their suit from those barred by CERCLA.
    IV. CONCLUSION
    Because the Complaint is barred by § 113(h) of CERCLA, Washington Gas’
    motion to dismiss [Dkt. 8] will be granted, and the case will be dismissed. A memorializing
    Order accompanies this Opinion.
    Date: September 24, 2012                                     /s/             _
    ROSEMARY M. COLLYER
    United States District Judge
    17