Baykeeper v. NL Industries, Inc., 660 F.3d 686

Raritan Baykeeper and Edison Wetlands Association sued NL Industries and related entities under RCRA and the CWA to remediate contaminated river sediments in the Raritan River.
NL owned a 440-acre site near the river, operated titanium dioxide pigment production until 1982, and retained site ownership until 2005 when SERA acquired it; NL-era operations left contamination and NL retained river sediment liability per an agreement, which did not require remediation.
NL conducted environmental investigations in 1988 and submitted sediment samples in 2000 and 2002; NJDEP acknowledged off-site sources and urged a regional remediation approach but did not require further NL action.
EPA ordered upstream river sediment remediation in 2009, following which the district court granted abstention and dismissed the suit on primary jurisdiction and Burford grounds.
SERA, O'Neill, SSA, and various governmental agencies (including NJDEP, NJDOT, Middlesex County, and NJ Turnpike Authority) are defendants; the court considers whether abstention was proper given federal citizen-suit rights.
The case is remanded for further proceedings consistent with the court’s opinion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether abstention on primary jurisdiction applies.	Raritan Baykeeper contends abstention is improper because the matter is a federal RCRA/CWA citizen suit.	NL and others argue primary jurisdiction is appropriate due to NJDEP expertise and ongoing state processes.	Abstention on primary jurisdiction not warranted.
Whether Burford abstention applies.	Raritan Baykeeper argues federal review would unduly interfere with state processes.	Defendants contend state review could address local policy and regional remediation concerns.	Burford abstention does not apply; timely state review is not available and federal action should proceed.
Whether New Jersey Environmental Rights Act provides adequate state review.	ER Act could provide timely, adequate state-law review equivalent to RCRA/CWA actions.	ER Act does not permit enforcement of RCRA/CWA rights and is not equivalent.	ER Act does not provide adequate or timely review of RCRA/CWA claims.
Whether the district court abused its discretion by abstaining.	Abstention would subvert the federal statutory framework for citizen suits.	Abstention is consistent with avoiding conflicts with state regulatory processes.	No abuse of discretion; abstention not required.
Whether this case presents an exceptional abstention scenario.	N/A	There is no ongoing formal state proceeding that the citizen suit would disrupt.	This case does not fit the exceptional abstention scenarios recognized by other circuits.

Colo. River Water Conservation Dist. v. United States, 424 U.S. 800 (1976) (abstention is the exception, not the rule, in primary jurisdiction cases)
Riley v. Simmons, 45 F.3d 764 (3d Cir.1995) (two-step Burford analysis; timely/state review necessity)
Global Naps, Inc. v. Bell Atl.-N.J., 287 F.Supp.2d 532 (D.N.J.2003) (four-factor test for primary jurisdiction abstention)
NOPSI, 491 U.S. 350 (1989) (Burford doctrine: avoid federal interference with state administrative processes)
PPG Industries, 702 F.Supp.2d 295 (D.N.J.2010) (observes that anxious situations may warrant caution in abstention; context-specific)
Chico Serv. Station, Inc. v. Sol P.R. Ltd., 633 F.3d 20 (1st Cir.2011) (caution in applying abstention; federal enforcement alignment with Congress)
Davies v. National Cooperative Refinery Ass’n, 963 F.Supp.990 (D.Kan.1997) (avoidance of conflict with settlement agreements in remediation)
Interfaith Cmty. Org. Inc. v. PPG Indus., 702 F.Supp.2d 295 (D.N.J.2010) (federal review not warranted where it would disrupt state policy)
PMC, Inc. v. Sherwin-Williams Co., 151 F.3d 610 (7th Cir.1998) (abstention generally rare in RCRA contexts; exception only for formal processes)
MCI Telecomms. Corp. v. Teleconcepts, Inc., 71 F.3d 1086 (3d Cir.1995) (four-factor test guidance for primary jurisdiction)