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A recent decision from the Third Circuit further confirms that state remediation standards, while instructive, are not dispositive of a claim under the federal Resource Conservation and Recovery Act (“RCRA”). Raritan Baykeeper v. NL Industries, Inc., No. 10-2591, 2011 U.S. App. LEXIS 20021 (Oct. 3, 2011), is at least the third decision in our jurisdiction that addresses the viability of a RCRA cause of action. In this case, Raritan Baykeeper and others brought a suit under RCRA and the Clean Water Act (CWA) to bring about the remediation of contaminated sediments in the Raritan River. (Sediments are those naturally occurring materials, broken down by processes of weathering and erosion, which come to be deposited in rivers, lakes, streams, and elsewhere.)
The primary defendant in this case, NL Industries (NL), manufactured titanium dioxide pigments on a 440-acre parcel bordering the Raritan River from the 1930s to 1982. While it sold the site in 2005, it retained liability for contamination of Raritan River sediments. The New Jersey Department of Environmental Protection (“NJDEP”), the entity responsible for overseeing the remediation of the NL site, agreed with a 2004 analyses that suggested that off-site sources were contributing to the contamination of river sediments. The NJDEP concluded that any remedial actions should be part of a broader “regional approach.” With no such approach having been proposed, Raritan Baykeeper filed a lawsuit seeking, among other things, injunctive relief requiring the defendants to remediate contaminated Raritan River sediments. On the defendants’ motion, the District Court dismissed the case on abstention grounds (i.e., that the District Court did not have primary jurisdiction to hear the case).
On appeal, the Third Circuit concluded that “while the NJDEP has expertise in environmental matters, federal courts are nonetheless competent to decide cases such as th[is] one,” and that “Congress decided as much when it wrote the RCRA and CWA to authorize citizen suits in federal courts.” Although the NJDEP “generally has discretion over environmental matters,” the Third Circuit found that “neither the RCRA nor the CWA charges NJDEP with enforcing those particular statutes.” Thus, the “matter [was] not particularly within the discretion of NJDEP.” Importantly, the Third Circuit further found that judicial review presented minimal risk of a ruling inconsistent with the NJDEP, particularly in light of agency inaction. Nevertheless, the Court held that even if “the District Court orders remediation that imposes an additional burden on NL, a more stringent remediation standard is not a reason to invoke the doctrine of primary jurisdiction.”
Finally, the Third Circuit found it doubtful that Raritan Baykeeper could obtain timely and adequate state court review of its claims. Specifically, because federal courts have exclusive jurisdiction over RCRA and CWA citizen suits, the case could not have been brought in state court. In addition, the Third Circuit concluded that the case posed no risk of disruption of New Jersey’s efforts to establish a coherent policy on a matter of public concern. There being no need for judicial abstention, the Third Circuit remanded the case to the District Court for further proceedings.
You can read a full copy of the decision here: https://www.ca3.uscourts.gov/opinarch/102591p.pdf
The Third Circuit’s decision follows the recent case of Interfaith Community Organization v. PPG Industries, where Lieberman Blecher & Sinkevich along with the Natural Resources Defense Council and Public Justice, successfully pursued a RCRA claim to remedy the impact of chromium contamination in Jersey City. In that case, PPG Industries (PPG) challenged the RCRA claim under the theories of mootness, res judicata, and full faith and credit, because PPG had entered into a Consent Judgment with the NJDEP and the City of Jersey City that required, among other things, that PPG remediate chromium levels to the NJDEP’s current standard of 20 ppm. In allowing the RCRA claim to go forward despite the Consent Judgment, the Court held that it has the power to order a remediation to a standard lower than 20 ppm. In a powerful footnote, the Court reiterated the Third Circuit’s RCRA jurisprudence by stating “[w]hile state standards may be ‘relevant and useful’ information in the determination of whether an endangerment exists, the Third Circuit has clearly articulated that they are not controlling for purposes of liability in a RCRA imminent and substantial endangerment suit.” The environmental litigators at Lieberman Blecher & Sinkevich prosecute and defend a broad range of matters on behalf of individual and industrial clients. More information concerning our environmental litigation services are available by following this link.
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