NL Industries owned a site through 2005. It entered into an administrative consent order with the State of New Jersey which required it to clean-up part of a site and investigate other portions, including sediments in an adjacent river. The sediments showed elevated metals. NL concluded that the sediments were impacted by other sources, including runoff from a nearby roadway; apparently NJ concurred and concluded that any remediation should be part of a regional strategy. NJ did not require NL to conduct any further characterization or remediation as to the impacted river sediments. After several years NJ had not set forth a regional plan nor initiated remedial activities. In the interim, EPA began to require remediation of upstream portions of the river.
The plaintiffs brought suit under the CWA and RCRA seeking injunctive relief to mandate remediation of the river sediments. The District Court, citing primary jurisdiction and Burford abstention, dismissed. In Raritan Baykeeper et al v. NL Industries et al, 2011 U.S. App. LEXIS 20021 (3rd Cir.: 10/3/11), the Third Circuit considered the issue.
The Court of Appeals ruled that neither primary jurisdiction nor the Burford doctrine called for abstention in this case. Although NJ had expertise in environmental matters, the Court noted that federal courts were nonetheless competent to decide such cases; Congress decided as much when it wrote the RCRA and CWA to authorize citizen suits in federal courts. Further, the Court found that the matter was not particularly within the discretion of NJ, there was minimal risk of inconsistent rulings, and plaintiff's suit did not amount to a "collateral attack" on a NJ decision, nor did it seek a remedy that necessarily conflicted with any agency order.
Further, the Court noted that plaintiff could not obtain adequate and timely state court review of its claims because federal courts had exclusive jurisdiction over RCRA and CWA citizen suits, the RCRA and CWA established the specific standards that plaintiff alleged defendants violated, and the Environmental Rights Act did not authorize a state court action to enforce rights under the RCRA and CWA. The Court also noted that courts should be very cautious about finding abstention is appropriate. The lack of formal state proceedings in this matter also indicated that a citizen suit would not cause a problem and thus was appropriate.
Thus, the case was remanded to the District Court.
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