Chico Service Station, Inc. v. Sol Puerto Rico Ltd.

United States Court of Appeals

For the First Circuit

No. 10-1200

CHICO SERVICE STATION, INC. and JOSÉ CHICO,

Plaintiffs, Appellants,

v.

SOL PUERTO RICO LIMITED,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Lipez, Leval,* and Thompson, Circuit Judges.

Orlando Cabrera-Rodriguez for appellants.

Alejandro J. Cepeda-Díaz, with whom José R. González-Irizarry,

Mariana S. Pérez-Cordero, and McConnell Valdés LLC were on brief,

for appellee.

January 26, 2011

*

Of the Second Circuit, sitting by designation.

LIPEZ, Circuit Judge. This appeal requires us to assess

the propriety of Burford abstention in a citizen suit under the

federal Resource Conservation and Recovery Act ("RCRA").

Appellants Chico Service Station, Inc. and José Chico brought the

suit in an effort to force the cleanup of contamination caused by

leaking underground storage tanks ("USTs") at a former gasoline

filling station. Their citizen suit represents the latest in a

long-running series of proceedings aimed at addressing

contamination at the site. In addition to an investigatory

proceeding at the Puerto Rico Environmental Quality Board ("EQB")

that has been ongoing since leaks were discovered in the early

1990s, appellants have filed two lawsuits in commonwealth courts

over the past decade related to the contamination of the site.

The pendency of these parallel state administrative

proceedings led the district court to abstain from hearing the

appellants' federal citizen suit, ordering dismissal on the

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

Application of the Burford abstention doctrine to RCRA citizen

suits is an issue of first impression in this circuit. On careful

consideration, we find abstention to be inappropriate, and we

therefore vacate the district court's judgment.

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I.

A. Factual Background1

The history of the filling station at the center of this

citizen suit stretches back more than four decades. Located on a

parcel of land in Río Grande, Puerto Rico, the filling station and

associated USTs were in operation between the 1960s and 2001. The

site, which is situated on a major road and abuts a small stream,

contained five USTs: two 8,000-gallon tanks, two 5,000-gallon

tanks, and a fifth tank with a capacity of 550 gallons. Until

1987, the facility was owned and operated by The Shell Company

(Puerto Rico) Limited ("Shell"), predecessor to appellee Sol Puerto

Rico ("Sol").2 Shell sold the filling station in April 1987 to

appellants Chico Service Station, Inc. and José Chico

(collectively, "Chico").3

The UST leak at the filling station first came to light

two years after the sale, in 1989, when an environmental consultant

1

Our recitation of facts draws from the district court's

opinion as well as various documents submitted below in support of

the defendant's motion to dismiss.

2

In 2006, Sol acquired Shell in a stock purchase. The

company now operates under Sol's name, though it continues to use

Shell's trademarks pursuant to a license agreement.

3

It is not entirely clear what interests were transferred in

the sale. Chico represents that the purchase agreement did not

include the USTs and associated pipelines, nor the station's grease

trap and septic tanks, but this is neither established nor

contradicted by the record. In any event, the ownership of the

USTs does not bear on our decision here.

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for Shell found evidence of gasoline-associated contaminants such

as benzene in the soil as well as "free product" (gasoline and

related petroleum constituents) floating on top of the groundwater.

This discovery led Shell to conduct several environmental studies

of the site over the following three years, which further confirmed

the soil and groundwater contamination. Shell also installed a

skimming device to aid in recovering free product from the surface

of the groundwater.

In April 1993, Shell informed the EQB that free product

had been found in the groundwater at the filling station.4 The EQB

added the filling station to its "Leaking Underground Storage Tank

List," marking the beginning of a lengthy investigatory proceeding

that continues to this date.

B. EQB Investigation

Over the past seventeen years, there have been no formal

enforcement proceedings before the EQB concerning the contamination

at the filling station, nor has the EQB held any hearings, issued

a final order, or approved a remediation plan for the site. The

record discloses no substantive action at all by the EQB for the

first eight years after it was notified of the leak. Since then,

the EQB's investigation of the contaminated filling station has

4

Over the course of the initial investigation, Shell's

environmental consultants had twice recommended, in 1990 and 1992,

that Shell disclose the suspected release to regulators; Shell

apparently ignored these recommendations.

-4-

been conducted primarily by intermittent correspondence between the

EQB and Shell, the highlights of which we summarize here.

In February 2001, Shell wrote to the EQB to request that

the filling station be removed from the Leaking Underground Storage

Tank List, in light of the fact that no free product had been

detected in the groundwater for three years prior. The EQB denied

the request and directed Shell to conduct additional testing. When

Chico ceased active operation of the filling station in July 2001,

Shell again wrote to the EQB and requested authorization to remove

the idle USTs from the site. The EQB approved the removal, though

the five tanks were not actually removed until March 2004 due to a

dispute between Chico and Shell over access to the property.

Soil sampling results conducted in conjunction with the

removal of the tanks revealed contaminant levels in excess of the

applicable limits under the EQB's regulations. In response, the

EQB asked Shell to prepare a site characterization plan5 to define

the plume of contamination at the site and submit a remediation

plan for approval. Shell prepared a characterization plan, which

the EQB approved on the condition that Shell conduct additional

analysis to determine the direction of water flow at the site.

Shell's testing pursuant to the characterization plan

stretched over the following several years, with results reported

5

Generally speaking, a site characterization plan is a road

map for gathering information about the extent and nature of

contamination at a site.

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to the EQB in two installments. In January 2007, defendant Sol --

having purchased Shell in the interim -- submitted the first and

primary report, which provided details on the extent and migration

of contamination in soil and groundwater at the site.6 Sol

submitted a supplemental report in May 2008 disclosing the results

of additional testing, which purportedly showed a decrease in soil

contaminant levels. Based on these results, Sol contended that no

soil remediation would be necessary, and it proposed that the

lingering groundwater contamination be addressed through aerobic

bioremediation (a technique to accelerate contaminant breakdown by

natural processes).

The submission of these results did not, however, signal

an end to the investigation. Chico wrote the EQB in May 2008,

taking issue with, inter alia, Sol's failure to take samples in the

vicinity of the stream abutting the property and the absence of

approved guidelines for risk assessment in cases involving USTs.

The EQB apparently agreed with the latter point. It wrote to Sol

in November 2008 and explained that the EQB was working with the

federal Environmental Protection Agency ("EPA") to develop

guidelines for evaluating UST risk assessment studies, and that

until those guidelines were finalized -- which would necessitate

6

The report itself is not in the record. Chico describes the

report as concluding that the plume of contamination appears to

have migrated outside the property limits to the north; Sol has not

disputed this characterization.

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approval by both agencies and a public hearing process -- the EQB

could not accept Sol's original report. The EQB also identified

certain quality control issues with Sol's sampling process that

required rejection of the report.

The EQB sent a follow-up letter in January 2009 calling

for Sol to prepare a new characterization plan to outline

additional testing. Sol met with the EQB in February to discuss

the EQB's requests. In April 2009, Sol submitted to the EQB new

testing plans, a compiled report summarizing the testing conducted

at the filling station to date, and a proposed remediation plan.

In the accompanying letter, Sol argued that a plan for additional

sampling was unnecessary. There is no indication of further action

taken by Sol or the EQB between April 2009 and the present.

C. Commonwealth Legal Proceedings

In August 2003, Chico filed in a commonwealth court the

first of three lawsuits relating to the filling station. Primarily

a contract action, the suit sought declaratory relief and damages

related to Shell's alleged breach of its site improvement

obligations under a lease agreement with Chico. Among the remedies

requested in the action, however, was an injunction requiring Shell

to conduct an environmental site assessment, carry out any

necessary remediation, and reimburse Chico for costs attributable

to environmental degradation at the site. After Shell moved to

dismiss, the parties settled and stipulated to dismissal of the

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portion of the suit requesting injunctive relief related to the

environmental condition of the site. Pursuant to the settlement

agreement, Chico agreed to allow Shell access to the filling

station to remove the USTs and conduct sampling activities.

Chico amended the complaint in May 2005 to allege the

discovery of contamination during removal of the USTs at the

filling station, and to request damages for environmental harm and

operational losses stemming from the contamination. In 2010,

recognizing that the question of the environmental condition of the

filling station was before the EQB, the commonwealth court stayed

the action pending final EQB action. The stay was subsequently

upheld on interlocutory appeal to a commonwealth appeals court.

Chico filed its second action, a mandamus petition

directed to the EQB, in a commonwealth court in October 2008. The

petition sought an order directing the EQB to require testing for

lead at the filling station, in light of evidence that Shell had

sold leaded gasoline on the premises up until the 1980s.7 Chico

and the EQB quickly reached a settlement in January 2009, under

which the EQB agreed to hear Chico's evidence of lead

contamination, conduct the "necessary administrative hearings," and

7

Chico had sent a letter to the EQB containing an identical

request in September 2008, shortly before the mandamus petition was

filed, but the record discloses no response.

-8-

"issue the final resolution" in the case within sixty days.8 In

turn, Chico agreed to have its concerns heard by the EQB rather

than the commonwealth courts. Pursuant to the parties' agreement,

the mandamus petition was dismissed as moot.

D. Federal Legal Proceedings

Chico filed the present suit, its third, in the United

States District Court for the District of Puerto Rico in April

2009. Brought under RCRA's citizen suit provision, 42 U.S.C. §

6972, the suit rests on three core allegations. First, Chico

alleges that Sol is in ongoing violation of a number of Puerto

Rico's UST regulations, including those that mandate reporting of

a suspected release of contaminants, require investigation and

remediation following such a release, and prohibit the

contamination of underground sources of drinking water. Second,

Chico alleges that conditions at the filling station may present an

imminent and substantial endangerment to the environment or public

health actionable under RCRA. Third, Chico alleges that Sol has

disposed of or abandoned gasoline, diesel, and their constituents

at the filling station in violation of RCRA's solid waste disposal

requirements. The suit seeks civil penalties under RCRA, in

addition to an order enjoining further releases at the site and

8

The record does not confirm whether any hearings were held

or evidence presented within the prescribed time period, but it is

clear that the EQB did not issue the "final resolution" within that

time, nor has it done so to date.

-9-

requiring Sol to conduct whatever corrective or remedial actions

are necessary.

In accordance with RCRA's requirements, Chico provided

pre-filing notice of its intent to file a citizen suit to Sol, the

EQB, the regional and national EPA administrators, and the

commonwealth and federal attorneys general via letter in October

2008. See 42 U.S.C. § 6972(b). RCRA requires such notice

primarily to afford regulators a chance to initiate an enforcement

suit or take other formal action to address the conditions targeted

by the intended citizen suit; here, no such action was taken

between October 2008 and the filing of suit the next April.

Sol moved to dismiss within a month of the complaint's

filing, proffering three alternative grounds for dismissal. Sol's

leading argument was that RCRA's diligent prosecution bar, which

precludes citizen suits where federal or state regulators are

taking certain enumerated enforcement actions (see 42 U.S.C. §

6972(b)(1)(B), (b)(2)(B), (b)(2)(C)), divested the court of subject

matter jurisdiction over Chico's claims. Alternatively, Sol

contended that Chico's claims were moot, and separately asked the

-10-

court to abstain from hearing the suit under the Burford9 and

Colorado River10 doctrines.

In a December 2009 opinion and order, the district court

granted dismissal under Burford. Among several "compelling reasons

to abstain" cited by the district court were Puerto Rico's interest

in uniform and coherent regulation of USTs and the availability of

adequate judicial review of a final administrative decision under

Puerto Rico law. Chico immediately moved for reconsideration,

which the court denied. This timely appeal followed.

II.

A. Statutory and Regulatory Background

We have previously described RCRA as "a cradle-to-grave

statute providing a full range of remedies designed to protect both

health and the environment." United States v. Borowski, 977 F.2d

27, 31 (1st Cir. 1992). More particularly, the Act regulates the

9

As discussed in full below, the Burford doctrine counsels

abstention in situations where a federal suit will interfere with

a state administrative agency's resolution of difficult and

consequential questions of state law or policy. See New Orleans

Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 361

(1989).

10

This doctrine, derived from the Supreme Court's opinion in

Colorado River Water Conservation District v. United States, 424

U.S. 800 (1976), addresses situations in which there are parallel

state and federal proceedings and "'considerations of wise judicial

administration' . . . counsel against duplicative lawsuits."

Jiménez v. Rodríguez-Pagán, 597 F.3d 18, 27 (1st Cir. 2010)

(citation omitted). Because the district court based its decision

solely on the Burford strain of abstention and Sol has not argued

for abstention under Colorado River in this appeal, we do not

address the applicability of the Colorado River doctrine here.

-11-

"handling, treatment and storage of hazardous substances" and solid

waste. Id. In enacting RCRA, Congress acknowledged these

activities to be "primarily the function of State, regional, and

local agencies," but found that, due to technological progress,

increases in industrial production, and population growth, "the

problems of waste disposal . . . have become a matter national in

scope and in concern and necessitate Federal action." 42 U.S.C. §

6901(a)(4).

RCRA's approach to regulating solid and hazardous waste

is one of cooperative federalism, of which the UST program is a

paradigmatic example. Subchapter IX of RCRA creates a

comprehensive federal regulatory framework for USTs, see 42 U.S.C.

§§ 6991-6991m, pursuant to which the EPA has promulgated numerous

specific regulations governing UST registration, leak detection,

notification, and cleanup requirements. See 40 C.F.R. Pt. 280

(2010); see also Francisco Sánchez v. Esso Standard Oil Co., 572

F.3d 1, 6 (1st Cir. 2009). However, a state may, with federal

approval, implement its own regulatory program for USTs. Congress

expressly authorized the EPA to approve state UST regulations for

operation "in lieu of the Federal program" where the state program

sets requirements "no less stringent" than those established by the

EPA and "provides for adequate enforcement of compliance." 42

U.S.C. § 6991c. EPA approval of a state UST program transfers

primary enforcement responsibility for the program to state

-12-

regulators, id. § 6991c(d)(2), though the EPA retains parallel

enforcement authority, see id. § 6991e.

Such is the case in Puerto Rico. Puerto Rico's

Underground Storage Tank Control Regulations, adopted in 1990, have

been approved by the EPA to operate in lieu of the federal

regulations, and Puerto Rico's EQB has been delegated primary

enforcement responsibility. See 40 C.F.R. § 282.102(a); Francisco

Sánchez, 572 F.3d at 6-7. Puerto Rico's program appears to closely

mirror the EPA's program. In fact, the provisions of Puerto Rico's

regulations that Chico alleges have been violated by Sol are

materially identical to the EPA's UST regulations, with a single

exception.11 Compare Puerto Rico Underground Storage Tank Control

Regulations, Rules 501, 503, 601, 602, 603, 604, and 606 with 40

C.F.R. §§ 280.50, 280.52, 280.60, 280.61, 280.62, 280.63, and

280.65.

B. Citizen Suits Under RCRA

Congress provided for broad enforcement of RCRA by

federal and state regulators as well as through "citizen suits," a

mechanism RCRA shares with numerous other federal environmental

statutes. See 42 U.S.C. § 6972; see also, e.g., id. § 7604 (Clean

Air Act); id. § 300j-8 (Safe Drinking Water Act); 33 U.S.C. § 1365

11

Rule 1102(B) of Puerto Rico's Underground Storage Tank

Control Regulations, setting forth a generalized prohibition on the

"contamination of an existing or potential underground source of

drinking water," has no direct analog in the EPA's UST regulations.

-13-

(Clean Water Act). Citizen suits "function as a form of statutory

enforcement in addition to, or in conjunction with, enforcement by

an administrative agency or other governmental entity." Esso

Standard Oil Co. (P.R.) v. Rodríguez-Pérez, 455 F.3d 1, 5 n.2 (1st

Cir. 2006). As Congress noted in the course of amending RCRA to

broaden its citizen suit authority, citizen suits "complement,

rather than conflict with" agency enforcement of the law. H.R.

Rep. No. 98-198, pt. I, at 53 (1983), reprinted in 1984

U.S.C.C.A.N. 5576, 5612.

The present suit was brought under subsections

6972(a)(1)(A) and (a)(1)(B) of RCRA's citizen suit provision, which

authorize "any person" to commence a civil action on his or her 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 chapter; 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). The statute specifies that citizen suits

under either of these subsections "shall be brought in the district

court for the district in which the alleged violation occurred or

the alleged endangerment may occur." Id. In hearing suits under

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these provisions, district courts have statutory authority to grant

various types of equitable relief necessary to address the

violation or endangerment, as well as to impose civil penalties.

Id.

Despite the broad ambit of the statute, RCRA citizen

suits are subject to a handful of clearly delineated limitations.

These limitations fall into two categories, both intended to avert

citizen suit interference with state and federal enforcement

activities. The first category requires written notice to state

and federal regulators (as well as to the alleged offender) prior

to filing suit, giving the responsible agencies the opportunity to

address the purported violation or endangerment. See 42 U.S.C. §

6972(b)(1)(A) (requiring notice sixty days prior to filing a

citizen suit based on ongoing violations of RCRA), (b)(2)(A)

(requiring notice ninety days before filing a citizen suit based on

an imminent endangerment). The second and related category of

limitations bars suit where a responsible state or federal agency

is diligently pursuing one of several enumerated judicial or

administrative enforcement actions under RCRA or the Comprehensive

Environmental Response, Compensation, and Liability Act ("CERCLA").

See 42 U.S.C. § 6972(b)(1)(B), (b)(2)(B), (b)(2)(C). This so-

called "diligent prosecution bar" is invoked by appellees as an

alternate ground to justify the dismissal of appellants' lawsuit.

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III.

The sole issue raised by Chico on appeal is whether the

district court erred when it abstained from hearing this citizen

suit on Burford grounds. Chico argues that the circumstances of

this case, in which the commonwealth agency responsible for UST

enforcement has taken negligible action during a seventeen-year

period of oversight, cannot support the district court's deference

to local administrative processes. Defendant Sol counters that

abstention is proper because the "EQB is actively enforcing its UST

regulations" in the investigative proceeding concerning the filling

station. Additionally, noting our authority to affirm a dismissal

on any ground supported by the record, see Román-Cancel v. United

States, 613 F.3d 37, 41 (1st Cir. 2010), Sol revives the diligent

prosecution bar and mootness arguments it pressed below. We

address each in turn.

A. Burford Abstention

1. General Principles

Abstention occupies an uneasy position in the

jurisprudence of federal court jurisdiction. As the common refrain

goes, "federal courts have a 'virtually unflagging obligation . .

. to exercise the jurisdiction given them.'" Ankenbrandt v.

Richards, 504 U.S. 689, 705 (1992) (quoting Colo. River Water

Conservation Dist. v. United States, 424 U.S. 800, 817 (1976));

United States v. Fairway Capital Corp., 483 F.3d 34, 44 (1st Cir.

-16-

2007) (same). This all but unyielding duty to exercise

jurisdiction rests on "the undisputed constitutional principle that

Congress, and not the Judiciary, defines the scope of federal

jurisdiction within the constitutionally permissible bounds." New

Orleans Pub. Serv., Inc. v. Council of New Orleans (NOPSI), 491

U.S. 350, 359 (1989); see also Cohens v. Virginia, 19 U.S. 264, 404

(1821) (federal courts "have no more right to decline the exercise

of jurisdiction which is given, than to usurp that which is not").

Against the backdrop of this duty to exercise

jurisdiction, Supreme Court precedent has carved out a discrete set

of "exceptional circumstances" in which the exercise of

jurisdiction may be declined. As a general proposition, these

"exceptional circumstances" lie "where denying a federal forum

would clearly serve an important countervailing interest," such as

"regard for federal-state relations" or "wise judicial

administration." Quackenbush v. Allstate Ins. Co., 517 U.S. 706,

716 (1996) (internal quotation marks omitted). The circumstances

that fit this mold are rare. Indeed, because abstention runs so

firmly against the jurisprudential grain, we have repeatedly

emphasized that abstention must always be "the exception, not the

rule." Fragoso v. Lopez, 991 F.2d 878, 882 (1st Cir. 1993)

(internal quotation marks omitted).

The particular species of abstention at issue here grew

out of the Supreme Court's decision in Burford v. Sun Oil Co., 319

-17-

U.S. 315 (1943).12 As we have observed on past occasions, the

"fundamental concern in Burford is to prevent federal courts from

bypassing a state administrative scheme and resolving issues of

state law and policy that are committed in the first instance to

expert administrative resolution." Pub. Serv. Co. of N.H. v.

Patch, 167 F.3d 15, 24 (1st Cir. 1998) (citing NOPSI, 491 U.S. at

361-64, and Bath Mem'l Hosp. v. Me. Health Care Fin. Comm'n, 853

F.2d 1007, 1014-15 (1st Cir. 1988)). The Supreme Court has

articulated a two-pronged analytical framework for identifying

situations that implicate this concern:

Where timely and adequate state-court review

is available, a federal court sitting in

equity must decline to interfere with the

proceedings or orders 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."

NOPSI, 491 U.S. at 361 (quoting Colo. River, 424 U.S. at 814).

While Burford's principle of deference to state

administrative bodies could be interpreted expansively, requiring

that federal courts "abstain from hearing any case involving

12

We provided a detailed summary of the factual background and

holding of Burford in Bath Memorial Hospital v. Maine Health Care

Finance Commission, 853 F.2d 1007, 1013-14 (1st Cir. 1988).

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important state regulatory policies," Vaquería Tres Monjitas, Inc.

v. Irizarry, 587 F.3d 464, 473 (1st Cir. 2009), we have declined to

give it so broad a reading. Id. In light of the strong

presumption in favor of the exercise of jurisdiction, we have held

that "Burford abstention must only apply in 'unusual

circumstances,' when federal review risks having the district court

become the 'regulatory decision-making center.'" Id. (quoting Bath

Mem'l Hosp., 853 F.2d at 1012-13); see also Fragoso, 991 F.2d at

882 (noting that, under the formulation in NOPSI, Burford

abstention is limited to "narrowly circumscribed situations where

deference to a state's administrative processes for the

determination of complex, policy-laden, state-law issues would

serve a significant local interest and would render federal-court

review inappropriate"). Similarly, we have cautioned that the

Burford doctrine does not require abstention merely because the

federal action may impair operation of a state administrative

scheme or overturn state policy. See Patch, 167 F.3d at 24 (citing

Zablocki v. Redhail, 434 U.S. 374, 379 n.5 (1978)); see also

Vaquería Tres Monjitas, 587 F.3d at 473-74.

2. Applicability of Burford

With these principles in mind, we turn to the question of

Burford's application to the present suit. We review de novo the

"essentially legal determination of whether the requirements for

abstention have been met," but employ a "more deferential standard"

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in reviewing the district court's findings of fact and applications

of law. Guillemard-Ginorio v. Contreras-Gómez, 585 F.3d 508, 517

(1st Cir. 2009) (internal quotation marks omitted). Though the

propriety of abstention from a RCRA citizen suit is a matter of

first impression in this circuit, we are far from the first court

to take up the issue. The majority of courts to have considered it

have found abstention, whether under Burford or related doctrines

such as primary jurisdiction,13 to be improper. See DMJ Assocs.,

L.L.C. v. Capasso, 228 F. Supp. 2d 223, 229 (E.D.N.Y. 2002) (citing

cases).14

13

The primary jurisdiction doctrine counsels abstention

"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." United States

v. W. Pac. R.R. Co., 352 U.S. 59, 64 (1956); see also U.S. Pub.

Interest Research Grp. v. Atl. Salmon of Me., 339 F.3d 23, 34 (1st

Cir. 2003) ("[T]he primary jurisdiction doctrine permits and

occasionally requires a court to stay its hand while allowing an

agency to address issues within its ken.").

14

See, e.g., PMC, Inc. v. Sherwin-Williams Co., 151 F.3d 610,

619 (7th Cir. 1998) (rejecting Burford abstention and primary

jurisdiction); Interfaith Cmty. Org. Inc. v. PPG Indus., Inc., 702

F. Supp. 2d 295, 307-10 (D.N.J. 2010) (rejecting Burford and

Colorado River abstention); Remington v. Mathson, No. CV 09-4547,

2010 WL 1233803, at *9-10 (N.D. Cal. Mar. 26, 2010) (rejecting

Younger and Colorado River abstention); K-7 Enters., L.P. v.

Jester, 562 F. Supp. 2d 819, 826-28 (E.D. Tex. 2007) (rejecting

Burford abstention); Coll. Park Holdings, LLC v. RaceTrac

Petroleum, Inc., 239 F. Supp. 2d 1322, 1326-29 (N.D. Ga. 2002)

(rejecting abstention under Burford and primary jurisdiction

doctrine); Me. People's Alliance v. Holtrachem Mfg. Co., No.

00-CV-69, 2001 WL 1704911, at *5-9 (D. Me. Jan. 8, 2001) (rejecting

application of the primary jurisdiction doctrine); Williams v. Ala.

Dep't of Transp., 119 F. Supp. 2d 1249, 1257-58 (M.D. Ala. 2000)

(rejecting application of the primary jurisdiction doctrine);

Wilson v. Amoco Corp., 989 F. Supp. 1159, 1170 (D. Wyo. 1998)

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Before we reach the doctrinal considerations specific to

Burford, we note that the careful structure of federal court

jurisdiction under RCRA makes us distinctly reluctant to

countenance abstention here. Abstention is, at its core, a

prudential mechanism that allows federal courts to take note of and

weigh significant and potentially conflicting interests that were

not -- or could not have been -- foreseen by Congress at the time

that it granted jurisdiction for a given class of cases to the

courts. When it enacted RCRA, however, Congress recognized and

addressed the specific clash of interests at issue here, by

carefully delineating (via the diligent prosecution bar) the

situations in which a state or federal agency's enforcement efforts

will foreclose review of a citizen suit in federal court.15 To

abstain in situations other than those identified in the statute

thus threatens an "end run around RCRA," PMC, Inc. v.

Sherwin-Williams Co., 151 F.3d 610, 619 (7th Cir. 1998), and would

(same); White & Brewer Trucking, Inc. v. Donley, 952 F. Supp. 1306,

1311-14 (C.D. Ill. 1997) (rejecting Burford abstention); Craig Lyle

Ltd. P'ship v. Land O'Lakes, Inc., 877 F. Supp. 476, 483-84 (D.

Minn. 1995) (rejecting abstention under Burford and the primary

jurisdiction doctrine). But see Coal. for Health Concern v. LWD,

Inc., 60 F.3d 1188, 1193-95 (6th Cir. 1995) (applying Burford

abstention to RCRA citizen suit); Friends of Santa Fe Cnty. v. LAC

Minerals, Inc., 892 F. Supp. 1333, 1347-49 (D.N.M. 1995) (same).

15

As discussed below, the statutory bar to citizen suits

applies only where a regulatory agency has filed a formal action in

state or federal court or is pursuing one of a handful of remedial

actions under CERCLA. See 42 U.S.C. § 6972(b)(1)(B), (b)(2)(B),

(b)(2)(C).

-21-

substitute our judgment for that of Congress about the correct

balance between respect for state administrative processes and the

need for consistent and timely enforcement of RCRA. Cf. Charlotte

Gibson, Note, Citizen Suits Under the Resource Conservation &

Recovery Act: Plotting Abstention on a Map of Federalism, 98 Mich.

L. Rev. 269, 281 (1999) (arguing that federal courts "may not

create a separate standard as to what level of administrative

investigation is sufficient to dismiss a citizen suit").

Moreover, we are leery of abstaining where litigants may

be unable to press their federal claims in a state forum. Section

6972(a) -- which states both that citizen suits "shall be brought

in the district court for the district in which the alleged

violation occurred or the alleged endangerment may occur" and that

"[t]he district court shall have jurisdiction" to grant relief in

such suits -- arguably locates exclusive jurisdiction over RCRA

citizen suits in the federal courts. The majority of courts that

have examined the issue have reached that conclusion. See Blue

Legs v. U.S. Bureau of Indian Affairs, 867 F.2d 1094, 1098 (8th

Cir. 1989) (stating that federal courts have exclusive jurisdiction

over RCRA citizen suits); Interfaith Cmty. Org. Inc. v. PPG

Indus., Inc., 702 F. Supp. 2d 295, 307 (D.N.J. 2010) (same);

Remington v. Mathson, No. CV 09-4547, 2010 WL 1233803, at *8-9

(N.D. Cal. Mar. 26, 2010) (same); K-7 Enters., L.P. v. Jester, 562

F. Supp. 2d 819, 827 (E.D. Tex. 2007) (same); White & Brewer

-22-

Trucking, Inc. v. Donley, 952 F. Supp. 1306, 1312 (C.D. Ill. 1997)

(same). But see Davis v. Sun Oil Co., 148 F.3d 606, 611-12 (6th

Cir. 1998) (holding that federal courts do not have exclusive

jurisdiction over RCRA citizen suits).

Regardless of whether the jurisdiction conferred by

Congress is exclusive, the statute plainly reflects an emphasis by

Congress on the availability of a federal forum for consistent and

timely review of RCRA claims. Taken together with Congress's

careful delineation of the limited situations in which federal

courts must refrain from hearing citizen suits, it counsels federal

courts to exercise great caution in considering abstention. While

we are not prepared to rule out categorically the possibility of

abstention in a RCRA citizen suit, we believe that the

circumstances justifying abstention will be exceedingly rare. As

we explain, the case before us offers no such justification for

second-guessing the balance struck by Congress.

In finding abstention to be improper here, we consider

three factors: (1) the availability of timely and adequate state-

court review, (2) the potential that federal court jurisdiction

over the suit will interfere with state administrative

policymaking, and (3) whether conflict with state proceedings can

be avoided by careful management of the federal case.

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i. Availability of State-Court Review

Under the modern formulation of the Burford doctrine, a

court weighing abstention must first determine whether "timely and

adequate state-court review is available." NOPSI, 491 U.S. at 361.

In making this assessment here, the district court found that "the

record abounds with evidence of adequate judicial review," citing

the two lawsuits filed by Chico in the commonwealth courts as well

as the availability under Puerto Rico law of judicial review for

final agency decisions. See P.R. Laws Ann. tit. 3, §§ 2171-77. As

a formal matter, the district court is correct that Puerto Rico law

provides for review of administrative decisions, and the record

provides no basis to doubt the adequacy of that review.

We have significant concerns, however, about the

timeliness of the review offered by commonwealth courts in the

present case. The availability of judicial review for "final

orders" by commonwealth agencies, id. § 2171, can hardly qualify as

"timely and adequate" if, as here, the agency may take decades to

issue a reviewable final order. Perhaps Chico could seek mandamus

relief in a commonwealth court to force more prompt action by the

EQB. Because Chico dismissed its mandamus petition upon settling

with the EQB, though, the record does not reflect whether mandamus

relief is available and effective, nor was the issue briefed by the

parties. The experience of Chico's other commonwealth lawsuit,

which was stayed in deference to the EQB, gives us little comfort

-24-

that Chico could in fact obtain "timely and adequate" review of the

EQB's actions in the commonwealth courts.16

ii. Interference with State Policymaking

Even if we were to find adequate review available in the

commonwealth courts, we nonetheless would consider this case to be

an improper candidate for Burford abstention. As we have said, the

animating concern under Burford is the threat that federal courts

will usurp the role of state administrative agencies in deciding

"issues of state law and policy that are committed in the first

instance to expert administrative resolution." Patch, 167 F.3d at

24. In light of the intertwined state and federal interests

implicated by RCRA, that concern does not obtain here.

The Supreme Court's articulation of the Burford doctrine

in NOPSI provides a convenient analytical framework for evaluating

this interplay of interests. Accordingly, we first examine whether

"there are 'difficult questions of state law bearing on policy

problems of substantial public import whose importance transcends

16

In fairness, we note that the history of the stay is not

entirely clear. Sol initially moved for and obtained a stay of the

commonwealth court action pending completion of the EQB

proceedings. However, that stay was set aside upon a motion for

reconsideration filed by Chico. Some time later, Chico filed an

"information motion" (the content of which is not disclosed by the

record), which prompted the commonwealth court to reinstate the

stay, apparently sua sponte. For reasons that cannot be divined

from the record, Sol then moved for reconsideration of the

reinstated stay. The court denied Sol's motion for

reconsideration, and a commonwealth appeals court affirmed the stay

on appeal.

-25-

the result in the case . . . at bar.'" NOPSI, 491 U.S. at 361

(quoting Colo. River, 424 U.S. at 814).

The substantive laws at issue in Chico's citizen suit are

indeed commonwealth regulations, but they rest heavily on a

framework of federal law. To a large extent, RCRA dictates the

content and standards of Puerto Rico's UST program, leaving the

Commonwealth only the discretion to enact regulations that are no

less stringent than those developed by the EPA. See 42 U.S.C. §

6991c. The questions of law at issue in this suit are therefore

only marginally questions of commonwealth law, with a strong

federal cast. Moreover, they are of no particular difficulty.

Federal courts regularly interpret EPA regulations substantively

identical to those here,17 see, e.g., Albany Bank & Trust Co. v.

Exxon Mobil Corp., 310 F.3d 969, 974 (7th Cir. 2002), and have an

affirmative interest in ensuring that corresponding state

regulations are interpreted in a consistent manner.

Nor are we concerned, turning to the second category of

cases identified by NOPSI to warrant abstention, that the exercise

of federal review of the enforcement of state regulations in this

case or similar cases "'would be disruptive of state efforts to

establish a coherent policy with respect to a matter of substantial

public concern.'" NOPSI, 491 U.S. at 361 (quoting Colo. River, 424

17

As we previously noted, all but one of the Puerto Rico UST

regulations cited in Chico's complaint are substantively identical

to EPA regulations.

-26-

U.S. at 814). In enacting RCRA, Congress made an express

determination that a coherent national policy was necessary to

address the serious, jurisdiction-spanning problems of solid and

hazardous waste, thereby inherently privileging the consistency of

federal regulation over local control. See 42 U.S.C. § 6901(a)(4).

By design, RCRA interferes with a state's efforts to establish its

own policy with respect to hazardous waste, both in subjecting

state regulations to federal review and in mandating that they

adhere to a federal framework. It would fly in the face of

Congress's unmistakable attention to the coherency of national

policy for a federal court to defer to a local agency. As one of

our sister circuits has observed in similar circumstances, such

ill-advised deference "might well result in review by fifty

different state agencies with fifty different charters," which

would all but "ensure non-uniformity" in interpretation and

enforcement. Cnty. of Suffolk v. Long Island Lighting Co., 907

F.2d 1295, 1310 (2d Cir. 1990).

iii. Likelihood of Conflict with State Proceeding

There is one additional reason why abstention is

inappropriate in this case. As we have cautioned before, a federal

court may abstain only where conflict with state administrative

processes cannot be avoided through careful conduct of the federal

case:

The abstention issue posed here is whether the

litigation necessarily implies an involvement

-27-

in the administration of the internal affairs

of the [state regulatory body] so unseemly for

a federal court as to encroach on principles

of comity and federalism. As we see the

issue, the word "necessarily" is of critical

importance. . . . This means to us that a

federal judge, while being . . . sensitive to

important state interests and . . . wary of

intruding in internal state affairs . . .,

will also endeavor to see if the legitimate

objectives of the litigation can be pursued

without treading on those state interests and

internal affairs. If they cannot be so

pursued, abstention should be invoked; but if

the case can so be managed that fears of

unseemly intrusion can be dispelled,

abstention should be refused.

Planned Parenthood League of Mass. v. Bellotti, 868 F.2d 459, 464

(1st Cir. 1989).

Intrusion on state affairs is by no means inevitable

here. This is not a case where review is, in effect, sought for a

final state administrative decision in federal rather than state

court, "effectively creat[ing] a dual review structure for

adjudicating a state's specific regulatory actions." Vaquería Tres

Monjitas, 587 F.3d at 474; see also Sugarloaf Citizens Ass'n v.

Montgomery Cnty, Md., 33 F.3d 52 (4th Cir. 1994) (unpublished table

decision) (applying Burford abstention to RCRA citizen suit where

it was "merely . . . a collateral attack" on state agency's

permitting decisions).

Instead, Chico's suit seeks an order enjoining further

releases of contaminants at the filling station and requiring

defendant Sol to take remedial action, as well as the imposition of

-28-

civil penalties. None of these steps requires that the court

directly review actions taken by the Puerto Rico EQB, which, in any

event, has issued no final order. Indeed, the fact that the EQB

has taken so little action over the past seventeen years suggests

that conflict with the EQB's proceedings is unlikely. We might be

more concerned if we were faced with an aggressive and

comprehensive state enforcement proceeding on the verge of a final

order, but that simply is not the case here. Regardless, should

the threat of conflict arise, we see no reason why federal court

relief could not be structured so as to avoid interference with the

EQB proceeding. See Coll. Park Holdings, LLC v. RaceTrac

Petroleum, Inc., 239 F. Supp. 2d 1322, 1328 (N.D. Ga. 2002) (noting

that documentation of agency's "institutional attitudes and

remediation expectations" produced in the course of an

administrative proceeding would permit the federal court "to

fashion appropriate non-conflicting relief"); cf. Francisco

Sánchez, 572 F.3d at 13 (concluding that threat of duplicative or

conflicting remedies in parallel RCRA enforcement suits could not

justify "short circuit[ing]" the federal suit on jurisdictional

grounds at an early stage).

B. Diligent Prosecution Bar

We next examine whether the investigative proceeding of

the Puerto Rico EQB falls within the discrete, statutorily

-29-

enumerated list of enforcement actions that will bar a citizen suit

under RCRA. We conclude that it does not.

There are three basic circumstances in which state action

will bar a RCRA citizen suit: (1) where the state "has commenced

and is diligently prosecuting" an enforcement action; (2) where the

state is engaged in a removal action under CERCLA that addresses an

imminent endangerment alleged by the citizen suit; and (3) where

the state has incurred costs to initiate a Remedial Investigation

and Feasibility Study under CERCLA and is diligently proceeding

with a remedial action that addresses the alleged imminent

endangerment. 42 U.S.C. § 6972(b)(1)(B), (b)(2)(C). The first of

these bars applies equally to RCRA suits brought under the "ongoing

violations" prong of RCRA's citizen suit provision, §

6972(a)(1)(A), and suits based on the "imminent endangerment"

prong, § 6972(a)(1)(B). The latter two bars apply solely to

imminent endangerment suits. Here, Chico filed suit under both

prongs, and thus we consider the application of all three bars.

The latter two we can discount out of hand, as the EQB

has taken no action under CERCLA. The only colorable issue is

whether the EQB, through its investigative proceedings, "has

commenced and is diligently prosecuting" an enforcement action that

addresses the substance of Chico's citizen suit claims. Id. §

6972(b)(1)(B), (b)(2)(C)(i). Most courts that have examined this

aspect of the diligent prosecution bar have concluded that the

-30-

language of the statute requires a formal action in court.18 We

agree.

Though the statute uses different language to describe

the bar as it applies to "ongoing violation" suits versus "imminent

endangerment" suits, both plainly necessitate an action in court.

For ongoing violation citizen suits, the statute is explicit: such

suits will be barred only where the "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." Id. § 6972(b)(1)(B) (emphasis added). In the case of

imminent endangerment suits, the statute is less direct, providing

that suit will be barred where the state "has commenced and is

diligently prosecuting an action under subsection (a)(1)(B) of this

section" (i.e., the imminent endangerment provision of RCRA's

citizen suit statute). Id. § 6972(b)(2)(C)(i). While there is no

express reference in this latter provision to an action "in a

court," such limitation is implicit. Section 6972 provides that

"any person may commence a civil action" to address circumstances

which may present an imminent endangerment, and states that any

18

See, e.g., Marrero Hernandez v. Esso Standard Oil Co., 597

F. Supp. 2d 272, 280 (D.P.R. 2009); Kara Holding Corp. v. Getty

Petroleum Mktg., Inc., 67 F. Supp. 2d 302, 306-07 (S.D.N.Y. 1999);

Gilroy Canning Co. v. Cal. Canners & Growers, 15 F. Supp. 2d 943,

946-47 (N.D. Cal. 1998); see also Gibson, supra, at 276 ("Courts

have unanimously understood [RCRA's] statutory bar to require court

action, not simply administrative inquiry.").

-31-

such action "shall be brought in the district court for the

district in which . . . the alleged endangerment may occur." Id.

§ 6972(a) (emphasis added). Thus, this provision also refers to a

formal action in court.

Because the EQB has not filed an enforcement action in

state or federal court, we hold that Chico's citizen suit is not

subject to dismissal pursuant to the diligent prosecution bar.

C. Mootness

We last address defendant Sol's argument that the

district court's dismissal of Chico's citizen suit may be upheld on

mootness grounds. "Article III of the Constitution restricts

federal courts to the resolution of actual cases and

controversies." Overseas Military Sales Corp. v. Giralt-Armada,

503 F.3d 12, 16 (1st Cir. 2007) (citing U.S. Const. art. III, § 2,

cl. 1). In so limiting the jurisdiction of the federal courts,

Article III "ensures that courts do not render advisory opinions."

Id. at 17. "When a case is moot -- that is, when the issues

presented are no longer live or when the parties lack a legally

cognizable interest in the outcome -- a case or controversy ceases

to exist, and dismissal of the action is compulsory." Cruz v.

Farquharson, 252 F.3d 530, 533 (1st Cir. 2001) (citations omitted).

Sol's mootness argument rests on two subsidiary contentions: first,

that Sol has complied with each of the UST regulations that Chico

seeks to enforce under § 6972(a)(1)(A), and second, that "there is

-32-

no further remedy that the Court could issue to address Chico's

claims."

1. Sol's Compliance with Applicable UST Regulations

On the record before us, we cannot conclude that Chico's

claim under § 6972(a)(1)(A) is moot on the ground that Sol has

complied with the UST regulations Chico seeks to enforce. At a

minimum, there appear to be unresolved disputes as to whether Sol

has met its initial abatement obligations under Rule 603 of Puerto

Rico's UST regulations; whether Sol has adequately investigated the

"full extent and location of soils contaminated by the release and

the presence and concentrations of dissolved product contamination

in the groundwater" under Rule 606; and whether Sol is in violation

of Rule 1102, which proscribes the "contamination of an existing or

potential underground source of drinking water." We thus are

unable to say that there is no live controversy to be decided with

respect to Chico's claim under § 6972(a)(1)(A).19

2. Availability of Further Relief

There is no question that an action becomes moot when the

court "cannot grant 'any effectual relief whatever'" in favor of

the plaintiff. Calderon v. Moore, 518 U.S. 149, 150 (1996)

19

Because the district court never reached the mootness

arguments that Sol advances here, the record is thin and our

assessment is not conclusive. The district court may wish to more

fully explore the question of mootness on remand. See Calderon v.

Moore, 518 U.S. 149, 150 (1996) ("[M]ootness can arise at any stage

of litigation.").

-33-

(quoting Mills v. Green, 159 U.S. 651, 653 (1895)). To avoid

mootness, though, the plaintiff need not establish that the full

relief sought is available; "even the availability of a 'partial

remedy' is 'sufficient to prevent [a] case from being moot.'" Id.

(quoting Church of Scientology of Cal. v. United States, 506 U.S.

9, 13 (1992)) (alteration in original); see also Weaver's Cove

Energy, LLC v. R.I. Coastal Res. Mgmt. Council, 589 F.3d 458, 468

(1st Cir. 2009) ("We will only find a case moot if an intervening

event 'makes it impossible for the court to grant any effectual

relief.'" (quoting Gulf of Me. Fisherman's Alliance v. Daley, 292

F.3d 84, 88 (1st Cir. 2002))).

It is undisputed that some -- or all -- of the relief

requested by Chico remains outstanding and could be granted by a

federal court. Most significantly, no order requiring remediation

of the filling station site has been issued by any commonwealth or

federal tribunal. Nonetheless, Sol argues that, because the EQB

has a proposed remediation plan before it as well as the power to

grant the civil penalties Chico has requested, any relief the

district court could order would be duplicative and unnecessary.

This is nothing more than a repackaged version of the meritless

abstention argument. The fact that the EQB proceeding might

eventually yield an order providing the same relief sought in the

district court action in no way renders the plaintiffs' suit moot.

See ConnectU LLC v. Zuckerberg, 522 F.3d 82, 89 (1st Cir. 2008)

-34-

(holding that the pendency of parallel actions seeking same relief

does not render either action moot).

IV.

The circumstances that can sustain a federal court's

abstention from the duty to exercise jurisdiction are rare. This

is particularly true for citizen suits brought under RCRA. In

light of the important federal interests at stake and the care with

which Congress delineated the situations in which RCRA citizen

suits will be barred, only exceptional circumstances could justify

abstention. Because such circumstances are not present here, the

district court erred in abstaining. Moreover, we conclude that

neither the diligent prosecution bar nor mootness can independently

support the district court's dismissal of Chico's suit. We must

therefore vacate the judgment of the district court. Costs shall

be awarded to the appellants.

So ordered.

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