City of Hattiesburg v. Hercules, Inc.

• Decision Date: 27 March 2014
• Docket Number: CIVIL ACTION NO. 2:13-CV-208-KS-MTP
• Parties: CITY OF HATTIESBURG PLAINTIFF v. HERCULES, INC., et al. DEFENDANTS
• Court: U.S. District Court — Southern District of Mississippi

CITY OF HATTIESBURG PLAINTIFF v. HERCULES, INC., et al. DEFENDANTS

CIVIL ACTION NO. 2:13-CV-208-KS-MTP

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI EASTERN DIVISION

SO ORDERED: March 27, 2014

ORDER

For all the reasons stated below, the Court denies Defendants' Motion to Dismiss [30]. Within twenty-one (21) days of the entry of this opinion, Plaintiff shall file a Second Amended Complaint in which it alleges the specific Mississippi regulatory violations underlying its citizen-suit under 42 U.S.C. § 6972(a)(1)(A).

I. BACKGROUND

Defendant Hercules, Inc. owned and operated a plant in Hattiesburg, Mississippi for almost ninety years.¹ During that time, Hercules conducted a variety of operations, including the production of rosins, paper chemicals, and agricultural insecticide. The facility covers 168 acres and contains offices, a laboratory, a powerhouse, a wastewater treatment plant, settling ponds, a landfill, and an impoundment basin and "sludge pits" for the disposal of industrial waste.

The facility is surrounded by residential, commercial, and industrial properties. City water and sewer lines run under, around, and adjacent to the facility, and a creekruns through it. Plaintiff, the City of Hattiesburg, alleges that Defendants knowingly and improperly disposed of hazardous industrial waste - including known or suspected carcinogens - on the facility, that the industrial waste has contaminated the soil and groundwater on and beneath the facility, and that they failed to limit and/or control the spread of industrial waste to the public easements and properties surrounding the facility. Plaintiff contends that the industrial waste contaminated soil, groundwater, and air on, beneath, and around the facility, damaging both the City and its citizens, and that it continues to spread.

Plaintiff filed this citizen-suit pursuant to Sections 6972(a)(1)(A)-(B) of the Resources Conservation and Recovery Act ("RCRA").² Plaintiff also alleged various state-law torts, and it requests a wide variety of injunctive and monetary relief. Defendants filed a motion to dismiss [30] the RCRA claims, and it is ripe for review.

II. DISCUSSION

A. Primary Jurisdiction

Defendants first argue that the Court should abstain from consideration of Plaintiff's RCRA claims under the doctrine of primary jurisdiction. This doctrine:

. . . applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views.

Local Union No. 189, Amalgamated Meat Cutters, & Butcher Workmen of N. Am., AFL-

CIO v. Jewel Tea Co., 381 U.S. 676, 684-85, 85 S. Ct. 1596, 14 L. Ed. 2d 640 (1965). The Fifth Circuit provided the following prerequisites for a district court's abstention under the doctrine of primary jurisdiction:

(1) the court has original jurisdiction over the claim before it; (2) the adjudication of that claim requires the resolution of predicate issues or the making of preliminary findings; and (3) the legislature has established a regulatory scheme whereby it has committed the resolution of those issues or the making of those findings to an administrative body.

Northwinds Abatement, Inc. v. Employers Ins. of Wausau, 69 F.3d 1304, 1311 (5th Cir. 1995). "No fixed formula exists for applying the doctrine," but "agency referral is favored when (a) it will promote even-handed treatment and uniformity in a highly regulated area, or when sporadic action by federal courts would disrupt an agency's delicate regulatory scheme; or (b) the agency possesses expertise in a specialized area with which the courts are relatively unfamiliar." Elam v. Kan. City S. Ry. Co., 635 F.3d 796, 811 (5th Cir. 2011).

The doctrine's purpose is to promote "proper relationships between the courts and administrative agencies charged with particular regulatory duties." Nader v. Allegheny Airlines, Inc., 426 U.S. 290, 303, 96 S. Ct. 1978, 48 L. Ed. 2d 643 (1976). It is particularly applicable where a case involves technical fact questions within the scope of an administrative agency's experience and expertise. Id. at 304. However, "primary jurisdiction is not a doctrine of futility; it does not require resort to an expensive and merely delaying administrative proceeding when the case must eventually be decided on a controlling legal issue wholly unrelated to [agency] determinations . . . ." Jewel Tea Co., 381 U.S. at 686.

Primary jurisdiction "is a flexible doctrine to be applied at the discretion of the district court." Wagner & Brown v. ANR Pipeline Co., 837 F.2d 199, 201 (5th Cir. 1988). The Court "must weigh the benefits of obtaining the agency's aid against the need to resolve the litigation expeditiously and may defer only if the benefits of agency review exceed the costs imposed on the parties." Id. "The advisability of invoking primary jurisdiction is greatest when the issue is already before the agency." Miss. Power & Light Co. v. United Gas Pipe Line Co., 532 F.2d 412, 420 (5th Cir. 1976). But "in those cases where Congress has determined by statute that the courts should decide the issue in the first instance, primary jurisdiction should not be invoked." Id. at 419.

The Fifth Circuit has not addressed the applicability of primary jurisdiction to RCRA citizen suits, but a neighboring district court, the United States District Court for the Eastern District of Louisiana, provided the following analysis:

Congress expressly defined the limited circumstances under which . . . RCRA suits may be barred. . . . RCRA citizen suits are barred only if the plaintiff fails to provide adequate notice before filing suit or if the EPA or a State "has commenced and is diligently prosecuting a civil or criminal action in a court of the United States or a State to require compliance with such permit, standard, regulation, condition, requirement, prohibition, or order." 42 U.S.C. § 6972(b)(2)(C).

* * *

The primary jurisdiction doctrine is not listed among the specifically delineated circumstances under which . . . RCRA [suits] may be barred. Where Congress creates specific exceptions to a broadly applicable provision, the proper inference . . . is that Congress considered the issue of exceptions and, in the end, limited the statute to the ones set forth. If Congress had intended for the primary jurisdiction doctrine to bar citizen suits, it would have included the doctrine among the specifically delineated circumstances under which citizen suits are barred. That Congress did not do so means the doctrine is not included among the bars to a citizen suit.

Apalachicola Riverkeeper v. Taylor Energy Co., LLC, 954 F. Supp. 2d 448, 459-60 (E.D. La. 2013) (some citations and punctuation omitted).³ This reasoning aligns with the Fifth Circuit's general admonition that "in those cases where Congress has determined by statute that the courts should decide the issue in the first instance, primary jurisdiction should not be invoked." Miss. Power & Light Co., 532 F.2d at 419; see also College Park Holdings v. Racetrac Petroleum, 239 F. Supp. 2d 1322, 1328 (N.D. Ga. 2002).

The majority of courts addressing the issue have found that the doctrine of primary jurisdiction does not apply to citizen suits under the RCRA.⁴ At least two other district courts in this Circuit concur with the majority position. See Apalachicola Riverkeeper, 954 F. Supp. 2d at 459-60; LWC Mgmt. Co., 2007 U.S. Dist. LEXIS 97186 at *22-*23. Absent contrary authority from the Fifth Circuit, the Court believes it prudent to do the same. Accordingly, the Court declines to apply the doctrine ofprimary jurisdiction to Plaintiff's RCRA claims.

B. RCRA Citizen Suits & EPA-Approved State Programs

Next, Defendants argue that Plaintiff has no viable RCRA claim because Mississippi adopted its own EPA-approved regulatory program which supersedes federal regulations, and the RCRA's citizen-suit provision can not be used to enforce state regulations.

The RCRA provides:

[A]ny person may commence a civil action on his own behalf -

(1) (A) against any person . . . who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this Act; or

(B) 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)(A)-(B). "Suits under subsection (a)(1)(A) are often referred to as citizen 'enforcement' actions, while suits under subsection (a)(1)(B) are sometimes called citizen 'imminent hazard' suits." Stewart-Sterling One, 2002 U.S. Dist. LEXIS 15746 at *5. "Subsection (a)(1)(A) applies to ongoing violations and does not provide redress for violations that occurred in the past. Subsection (a)(1)(B) . . . was designed to create RCRA liability for past acts presenting a present danger." Id. at *5-*6.

The RCRA allows states to adopt their own hazardous waste regulatory programs, subject to approval by the EPA. It provides: "Any State which seeks toadminister and enforce a hazardouse waste . . . program pursuant to this subtitle may develop and . . . submit to the [EPA] an application . . . for authorization of such program." 42 U.S.C. § 6926(b). If the EPA approves the program, the "State is authorized to carry out such program in lieu of the Federal program under this subtitle in such State and to issue and enforce permits for the storage, treatment, or disposal of hazardous waste . . . ." Id. "Based on this provision, a few courts have held that in states where this has occurred, private citizens' enforcement suits are no longer...