At least that may be what the defendants in Raritan Baykeeper Inc., et al. v. NL Industries, Inc. et al., are thinking after the Third Circuit gave new life to plaintiffs’ citizen suit claims seeking to compel defendants to remediate contaminants allegedly discharged into the Raritan River.  The defendants successfully argued before the district court that the court should abstain from hearing the plaintiffs’ RCRA and Clean Water Act citizen suit claims because the New Jersey Department of Environmental Protection (NJDEP) had previously entered into an administrative consent order (ACO) with NL Industries, Inc. (NL) requiring NL to investigate contamination and to perform certain remediation activities at the site.  The ACO also required NL to conduct sediment sampling in the Raritan River, which was done in 2000 and 2002.  While some of the sediment samples showed elevated levels of arsenic, copper, lead and zinc, NL concluded that off-site sources were contributing causes of the contaminated sediments.  After reviewing the sediment sample results, NJDEP issued a letter in 2004 acknowledging off-site sources were contributing to the sediment impacts, and concluding that any remedial actions directed at cleaning up the river sediments should be part of a regional clean-up effort. 

At the trial court level, District Court Judge Pisano agreed with the defendants that under the doctrine of primary jurisdiction, the court should abstain from hearing the plaintiffs’ claims, resulting in the dismissal of the lawsuit.  But on appeal, the Third Circuit distinguished the facts of the case from those cases relied upon by the defendants where the district courts deemed primary jurisdiction abstention appropriate, noting that, “by contrast, Raritan Baykeeper’s suit does not amount to a “collateral attack” on an NJDEP decision, nor does it seek a remedy that necessarily conflicts with any agency order.” In reaching its decision, the Third Circuit acknowledged that NJDEP’s prior involvement through its 2004 letter favored defendants, but because NJDEP had taken no action with respect to the cleanup of the Raritan River since that date, that NJDEP’s prior involvement did not outweigh the other factors that weighed against the application of primary jurisdiction.   

While the Third Circuit gave little guidance on how much agency involvement is necessary to justify a court’s decision to invoke abstention, and given the significant uncertainties associated with potential remedies under a CWA or RCRA citizen suit action, a PRP may very well welcome the alternative of significant agency involvement and the opportunity to negotiate over an appropriate and cost-effective remediation strategy. 

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