Residents of Gordon Plaza v. Cantrell, 25 F.4th 288

Background

The Agriculture Street Landfill (Gordon Plaza site) was listed on the EPA National Priorities List in 1994 due to arsenic, lead, and PAH contamination; EPA performed removal work and stated in 2002 that response actions were complete.
In 2008 the City and EPA entered a Consent Decree requiring the City to protect the EPA-installed remedy (excavation/backfill/soil cap and geotextile mat) through operation-and-maintenance duties (e.g., mow vegetation, require property-owner maintenance, issue a Technical Abstract to utilities), annual reports, EPA oversight, and 5-year reviews.
Gordon Plaza (an association of residents) filed a RCRA citizen suit in 2020 alleging ongoing contamination and seeking abatement; its complaint did not disclose the 2008 Consent Decree.
The City attached the Decree, moved to dismiss under Rules 12(b)(1) and 12(b)(6), and invoked RCRA’s statutory bar that precludes citizen suits where a responsible party is "diligently conducting a removal action" under an EPA consent decree.
The district court took judicial notice of the Decree and the EPA 2018 Five-Year Review (which found the City in compliance) and dismissed with prejudice for failure to plead that the City was not diligently conducting a removal action.
On appeal Gordon Plaza argued the defense was untimely, the City’s obligations are not CERCLA "removal" actions, the City was not diligent, and denial of leave to amend was improper. The Fifth Circuit affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court abused discretion by considering the City’s RCRA statutory-bar defense as first raised in reply	City raised the defense for first time in reply; court should not consider it	City previously raised the same defense in the 2018 litigation and in its motion to dismiss in this case	No abuse — defense was raised earlier and consideration was proper
Whether the City’s Consent Decree obligations (operation & maintenance) qualify as CERCLA "removal" actions	"Removal" excludes operation-and-maintenance; EPA preamble supports that exclusion	CERCLA’s definition of ‘‘removal’’ is broad and includes actions to prevent, minimize, or mitigate releases (which covers O&M protecting a cap)	City’s maintenance obligations fall within CERCLA’s definition of "removal"
Whether the City is "diligently" conducting the alleged removal actions (so RCRA bar applies)	Allegations (photo, 2016 evidence, EPA note of overgrown vegetation) show deficient performance and non-diligence	EPA’s 2018 Five-Year Review found the City in compliance; Decree provides reporting, oversight, penalties and dispute resolution making diligence plausible	Complaint failed to plausibly allege lack of diligence; dismissal proper
Whether denial of leave to amend was an abuse of discretion	Plaintiff should be allowed to amend to plead diligence issues after discovery	Plaintiff unduly delayed, acted in bad faith, repeatedly failed to cure, and gave no particularized proposed amendments	Denial affirmed — district court did not abuse its discretion

Key Cases Cited

Ashcroft v. Iqbal, 556 U.S. 662 (2009) (federal pleading standard for plausibility)
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (pleading must state a plausible claim)
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) (agency deference framework)
United States v. Mead Corp., 533 U.S. 218 (2001) (limits on Chevron deference; step zero)
Skidmore v. Swift & Co., 323 U.S. 134 (1944) (persuasive weight for agency interpretations lacking force of law)
Geraghty & Miller, Inc. v. Conoco Inc., 234 F.3d 917 (5th Cir. 2000) (Congress intended broad interpretation of "removal")
United States v. Lowe, 118 F.3d 399 (5th Cir. 1997) (removal aimed at containing and cleaning up releases)
United States v. W.R. Grace & Co., 429 F.3d 1224 (9th Cir. 2005) (classification of removal action is a question of law)
Tanglewood E. Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568 (5th Cir. 1988) (diligence under §6972 may be a fact issue at pleading stage in some contexts)
La. Env’t Action Network v. City of Baton Rouge, 677 F.3d 737 (5th Cir. 2012) (citizen-suit role is interstitial and should not be intrusive)