The Nickel Report

Last week, in Residents of Gordon Plaza, Inc. v. Cantrell, the Fifth Circuit denied a petition for rehearing en banc of a recent decision affirming the dismissal of a Resource Conservation and Recovery Act (RCRA) citizen suit. The key issue in the underlying appeal, 25 F.4th 288 (5th Cir. 2022), was whether certain maintenance activities qualify as a “removal” action under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court affirmed that the maintenance activities do indeed constitute a “removal action.” Therefore, the suit was barred under 42 U.S.C. § 6972(b)(2)(B)(iv), which precludes RCRA citizen suits where a “responsible party is diligently conducting a removal action” pursuant to a CERCLA consent decree with EPA.

The plaintiff was an association of residents of Gordon Plaza, a New Orleans neighborhood located on the site of a former city-owned landfill.  In the 1990s, EPA listed the site as a Superfund site, and engaged in response actions, including removing soil and installing a soil cap and geotextile mat in certain areas.  In 2008, EPA and the city entered into a consent decree requiring the city to undertake “proper operation and maintenance practices and institutional controls” to “protect the remedy” (i.e., the soil cap and geotextile mat) that EPA had installed and “thereby, [protect] the public health or welfare or the environment” at the site. This includes maintaining a vegetative cover (e.g., mowing at least twice a year) to prevent contaminants underneath from being released.  The consent decree also provides for EPA oversight.

In 2020, the association sued under RCRA’s citizen suit provision, 42 U.S.C. § 6972(a)(1)(B), alleging that contamination at the site was causing an imminent and substantial endangerment to human health and the environment. The city moved to dismiss for failure to state a claim, arguing that the 2008 consent decree precluded the suit under § 6972(b)(2)(B)(iv) because it requires the city to perform “removal” actions. The parties agreed that the city’s obligations constitute maintenance actions, but the association argued that those maintenance obligations do not qualify as “removal” actions.  The trial court agreed with the city and dismissed the lawsuit. On appeal, the Fifth Circuit affirmed.

After rejecting the association’s argument that it should defer to an EPA statement in the preamble to a proposed rule (which, notably, did not appear in the final rule), the Fifth Circuit turned to the statutory text. The consent decree does not define “removal action” or “operation and maintenance practices,” but provides that its undefined terms “adopt the definition provided in CERCLA or in regulations promulgated thereunder.” Thus, the question was whether the maintenance activities are within the scope of CERCLA’s definition of “removal” in 42 U.S.C. § 9601(23), which includes “taking of such other actions . . . to prevent, minimize, or mitigate damage . . . , which may otherwise result from a . . . threat of release” of hazardous substances.

The court held that the city’s obligation to maintain the vegetative cover “easily falls within” the statutory definition. In particular, Congress intended the interpretation of “removal action” to have a broad definition, and removal includes “containing and cleaning up hazardous substance releases” such as mowing the vegetation.

The court also rejected the association’s argument that the lawsuit was not barred because the city was not “diligently” conducting the removal action. The court noted that the consent decree “provides a framework for [EPA’s] ongoing monitoring” of the city’s performance of its obligations and that in its most recent five-year review report, EPA concluded that the city was in compliance.  The association’s “single conclusory statement” in the complaint about overgrown vegetation and a “photo predating the EPA’s conclusion that the City is in compliance” failed to plausibly allege that the city is not diligently conducting the removal action.

This recent ruling highlights that a CERCLA consent decree with EPA that requires a “removal action” can be a powerful tool to preclude a later-filed RCRA citizen suit; however, parties should carefully consider the scope of the removal action and how key terms are defined in such consent decrees to help ensure that the statutory bar applies later, if it is needed.