Thomas J. King

March 20, 2011

On January 26, 2011, the United States Court of Appeals for the First Circuit vacated an order of the United States District Court for the District of Puerto Rico granting the Defendant's motion to dismiss the Plaintiff's Resource Conservation and Recovery Act ("RCRA") citizen suit under the doctrine of abstention. The applicability of the doctrine of abstention, as set forth in Burford v. Sun Oil Co., to RCRA citizen suits was an issue of first impression in the First Circuit.

According to the First Circuit's opinion, the Appellee, Sol Puerto Rico Limited, a licensee of Shell, ("Shell") owned and operated a gas station in Rio Grande, Puerto Rico from the early 1960s until 1987 when the station was sold to Appellant, Chico Service Station, Inc., and Jose Chico (collectively, "Chico"). The gas station contained five underground storage tanks ("USTs") which were used to store various fuels. Two years later, in 1989, Shell detected soil and groundwater contamination. Shell conducted follow-up tests which verified the finding of contamination, and in 1993, Shell notified the Puerto Rico Environmental Quality Board ("EQB"). The EQB received authorization to administer and enforce its own UST program in 1991. The EQB took no action for the first eight years after receiving notification. It was not until the Chico ceased operating the station in July of 2001 that Shell suggested to the EQB that the five leaking USTs be removed. The EQB approved Shell's proposal and the tanks were removed in March 2004. Samples taken during the removal of the five USTs indicated that significant soil and groundwater contamination remained. The EQB then ordered Shell to create a characterization plan to discern the nature and extent of the contamination and to follow up with the necessary remediation. Shell submitted a primary report to the EQB in 2007, supplemented by another report submitted in 2008. In 2009, the EQB rejected the primary and supplemental reports and ordered the Appellee to create a new characterization plan.

In April of 2009, Chico filed a RCRA citizen suit against Shell alleging three violations. Chico sought civil penalties and an order requiring the Defendants to take corrective action to remediate the site. In December of 2009 the District Court granted Shell's motion to dismiss, holding that the Burford doctrine of abstention demanded such a result because of ongoing commonwealth `administrative proceedings aimed at addressing the issue. The District Court cited the Supreme Court's two-prong abstention analysis in New Orleans Pub. Serv., Inc. v. Coucil of City of New Orleans to determine whether abstention was proper: "Where timely and adequate state-court review is available, a federal court sitting in equity must decline to interfere with the proceedings ... of state administrative agencies: (1) when there are 'difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar'; or (2) where the 'exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.'" Applying this test, the District Court abstained from hearing the case reasoning that the EQB was attempting to create a coherent UST policy.

Chico appealed the District Court's determination to the First Circuit which determined that the District court erred in its application of the Burford Doctrine and vacated the order. The Court of Appeals reasoned that in passing RCRA, Congress specifically provided a bar to citizen suits where the state or federal agency was diligently prosecuting the alleged violations or the plaintiff failed to provide said agencies with proper notice of the suit. The Court of Appeals stated that "[t]o abstain in situations other than those identified in the statute thus threatens an 'end run around RCRA.'" The Court of Appeals also found that the lack of formal action on behalf of the EQB over seventeen years indicated a slim risk of interfering with whatever commonwealth process was indeed underway. Additionally, the Court of Appeals determined that the facts of the case indicated that Chico could not obtain timely review of the EQB's ultimate decision in the courts of the commonwealth. The First Circuit found that the failure to abstain would not result in federal interference with state policy-making as the state regulations at issue were practically identical to their federal counterparts. Finally, the Court of Appeals concluded that abstention is only proper in rare cases and almost always improper in situations where Congress has spoken on the matter. Here, the First Circuit notes that RCRA bars citizen suits when the matter is being diligently prosecuted by a state or federal agency or when the plaintiff failed to provide the requisite notice to both state and federal agencies.

The First Circuit's treatment of the issue in this case illustrates an unwillingness on the part of federal courts to abstain where Congress expressly indicated circumstances in which federal jurisdiction is improper. Moreover, the decision illuminates the high hurdle that litigants must clear in order to convince a court to abstain from a RCRA citizen suit.

Sources:

Burford v. Sun Oil Co., 319 U.S. 315 (1943).

Chico Service Station, Inc., v. Sol Puerto Rico Ltd., 677 F.Supp.2d 523 (D. Puerto Rico, 2009).

New Orleans Pub. Serv., Inc. v. Coucil of City of New Orleans, 491 U.S. 350 (1989).