Tuesday, October 4, 2011

Raritan Baykeeper v. NL Industries, Inc.

Oct 3: In the U.S. Court of Appeals, Third Circuit, Case No. 10-2591. Appealed from the United States District Court for the District of New Jersey. Raritan Baykeeper and the Edison Wetlands Association (collectively, Raritan Baykeeper) brought the suit under the Resource Conservation and Recovery Act (RCRA) and the Clean Water Act (CWA) to bring about the remediation of contaminated sediments in the Raritan River. The District Court, citing the involvement and expertise of the New Jersey Department of Environmental Protection, dismissed the action on abstention grounds. The Appeals Court said it concluded that "this case does not call for abstention, and we will vacate the judgment of the District Court."
     From the 1930s until 1982, NL Industries (NL) manufactured titanium dioxide pigments on a 440-acre plot of land (the site) surrounded on three sides by the Raritan River. Although NL ceased its operations on the site in 1982, it retained ownership of the property and leased portions of it to other companies, who manufactured sulfuric acid on the site. NL continued to own the site until 2005, when the Sayreville Economic and Redevelopment Agency (SERA) acquired the site by eminent domain. SERA chose O'Neill Properties Group, L.P. (O'Neill) as the site's developer and O'Neill, in turn, formed Sayreville Seaport Associates, L.P. (SSA) to purchase and redevelop the site. SERA, O'Neill, SSA, and the County of Middlesex entered into an agreement controlling the sale of the site. Although the agreement made SSA responsible for most environmental issues at the site, it provided that NL would retain liability for contamination of sediments in the Raritan River. The agreement does not, however, call for any remediation of the sediments.
    In 2009, however, the United States Environmental Protection Agency (EPA) ordered remediation of river sediments upstream from the site. Shortly after the EPA action, Raritan Baykeeper brought this suit against NL, SERA, SSA, O'Neill, and an array of government officials and agencies. Under RCRA and CWA Raritan Baykeeper sought injunctive relief requiring the Defendants to remediate sediments in the Raritan River.
    The Appeals Court said, "In sum, we conclude that neither primary jurisdiction nor the Burford doctrine calls for abstention in this case. This outcome is consistent with the decisions of our sister circuits. The First Circuit explained that federal courts must ' exercise great caution in considering abstention, ' and that ' the circumstances justifying abstention will be exceedingly rare, ' because declining to hear a case for a reason not enumerated in the RCRA ' would substitute our judgment for that of Congress about the correct balance between respect for state administrative processes and the need for consistent and timely enforcement of RCRA. ' Chico Serv. Station, Inc., 633 F.3d at 31, 32. Similarly, the Seventh Circuit observed that, while ' there may be room for applying the doctrines of abstention or primary jurisdiction . . . in cases in which a state has a formal administrative proceeding in progress that the citizens' suit would disrupt, ' abstention in RCRA ordinarily would amount to ' an end run around the RCRA.' PMC, Inc. v. Sherwin-Williams Co., 151 F.3d 610, 619 (7th Cir. 1998).
    "The same logic also applies to CWA actions, since that statute similarly provides for citizen suits except under specific, enumerated circumstances, none of which apply here. Raritan Baykeeper asks us to go a step further and hold that primary jurisdiction and Burford abstention never apply to RCRA and CWA actions. Like our sister circuits, we decline to impose such a general rule. As Judge Posner noted in PMC, Inc., 151 F.3d at 619, abstention might be appropriate in cases with heightened state involvement as evidenced by ' a formal administrative proceeding in process that the citizens' suit would disrupt. ' But such a case is truly the exception, not the rule, and is not present here."
    Access the complete opinion (click here). [#Haz, #Water, #CA3]
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