• Federal Court Abstains From Hearing Case Where NJDEP Heavily Involved
  • November 11, 2010 | Authors: George W. Crimmins; Jay P. Eversman; Michele Julie Glass; Marilynn R. Greenberg; Dennis J. Krumholz; Jillian Mooney; Samuel P. Moulthrop; Alexa Richman-La Londe; Steven T. Senior; Jeffrey B. Wagenbach
  • Law Firm: Riker Danzig Scherer Hyland & Perretti LLP - Morristown Office
  • In this decision by the United States District Court for the District of New Jersey, a citizen suit brought under the Resource Conservation and Recovery Act ("RCRA") and the Federal Water Pollution Control Act ("CWA") by two environmental groups, Raritan Baykeeper, Inc. d/b/a NY/NJ Baykeeper and Edison Wetlands Association (collectively, "Baykeeper"), was dismissed without prejudice on the basis of abstention, the principle that the United States federal courts must abstain from hearing a case where federal review would be disruptive of a state regulatory scheme. See Raritan Baykeeper, Inc. v. NL Industries, Inc., 713 F.Supp.2d. 448 (D.N.J. 2010). In reaching its decision, the court recognized the split in authority regarding whether or not abstention is appropriate in RCRA and CWA cases, but ultimately applied the doctrine in defendant NL Industries, Inc.'s favor, thereby dismissing the suit brought by Baykeeper. The court elected not to disrupt an ongoing remediation and redevelopment scheme with considerations that could have been raised under other circumstances and earlier in the process.

    NL Industries manufactured titanium dioxide at the site (the "NL Site") from 1935 until 1982. It began investigating the NL Site in 1988 in accordance with the Environmental Cleanup Responsibility Act (now known as the Industrial Site Recovery Act), later entering into an Administrative Consent Order ("ACO'). The investigation and cleanup are proceeding under the ACO. The NL Site was later designated as in need of redevelopment, acquired by the Sayreville Economic and Redevelopment Agency via eminent domain, and an agreement was negotiated governing the sale and responsibilities for environmental liabilities. Pursuant to this agreement, NL Industries retained responsibility only for remediation of the Raritan River sediments adjacent to the NL Site, and responsibility for remediation of the NL Site itself was assumed by others. Despite the fact that the terms of these arrangements were made available to the public, no comments were received regarding their adequacy.

    NL Industries performed under the ACO, sampling the river sediments in the vicinity of the site, reporting to the NJDEP and responding to comments as needed. NJDEP ultimately concluded that off-site sources identified by NL Industries and past industrial activity at the NL Site itself contributed to the contamination, but that no remedial action was required because, without a "regional approach," efforts by NL Industries would be "short lived and of little ecological significance." No further investigation of conventional contaminants in the sediments was required, although NJDEP did require further investigation of radionuclides. Subsequent to NJDEP's findings, the United States Environmental Protection Agency ("EPA") issued a Record of Decision requiring remediation of the Raritan River sediments at two sites upstream of the NL Site. This remediation will require dredging and off-site disposal of contaminated river sediments.

    Baykeeper brought suit for an injunction requiring immediate remediation of the river sediments adjacent to the NL Site and for a determination regarding the source of the contamination. The relief sought, however, was contrary to previous findings of the NJDEP, namely that immediate remediation is not necessary given the off-site sources and requirement for a regional remedial approach, an existing pre-approved redevelopment plan for one of the on-site source areas and a determination regarding the lack of impact from another alleged on-site source area. The Agency findings were the driving force behind the Court's decision to dismiss the matter on abstention grounds.

    This case is significant because it demonstrates that where the plans for remediation and redevelopment of a property have been subject to extensive public oversight and opportunity to comment, a federal court may decline to retain jurisdiction where federal adjudication could result in rulings that contradict those of the agency with superior expertise in the applicable field.