Adkins v. VIM Recycling, Inc.

483 relief, question into the death would call Jerry ADKINS, al., itself,” thereby requiring pe- et

sentence Plaintiffs- Appellants, challenge procedure through titioner 645, 124 petition. a Id. at S.Ct. habeas v. 2117. INC., RECYCLING, K.C. Indus that Warden’s contention LLC, Will, tries, and Kenneth R. challenge particu that a

Hill “holds Defendants-Appellees. a injection lar which lethal is to means non-eognizable out be carried is habeas” No. 10-2237. is broad. too Nowhere Hill Nelson Supreme Court a does the state that meth States of Appeals, United Court challenge cognizable od-of-execution is not Seventh Circuit. a habeas or that federal court “lacks jurisdiction” adjudicate claim in such a 20, Argued Jan. 2011. habeas action. it true that Whereas Decided May can certain claims that be raised a fed petition eral habeas cannot be raised in a Preiser, action, see necessarily it does not follow S.Ct. any claim can be raised in a action cannot be raised in habeas States,

petition, see Terrell United (6th Cir.2009). 442, 446 n.

F.3d More

over, distinguished can from Hill be this has not

case on basis Adams acceptable the existence of an

conceded procedure.

alternative See 547 U.S. at Thus,

580, 126 S.Ct. 2096. Adams’s lethal- claim, successful,

injection if could render effectively

his death sentence invalid.

Further, Nelson’s statement that “method- challenges!]]

of-execution fall at the mar habeas,”

gins 541 U.S. at S.Ct.

2117, strongly that claims such suggests brought can be

Adams’s habeas.

Accordingly, AFFIRM the district we September 2009 order insofar as

court’s

it denies Warden’s motion dismiss lethal-injection

Adams’s claim for lack of

jurisdiction. The case is REMANDED to court in district accordance February 2009 order.

court’s Frankel, H. Appellate Litiga-

Richard Clinic, PA, Philadelphia, Jay tion Kelly Sanford, Payn (argued), Michael for Plain- tiffs-Appellants. Plews,

Amy (argued), Shadley, E. Romig LLP, IN, Racher Braun Indianapolis, & for Defendants-Appellees. HAMILTON, RIPPLE and

Before MURPHY, Judges, Circuit District Judge.* * Murphy The Honorable G. Patrick nation. Illinois, sitting by desig- Southern District of (a)(1) provides for two distinct section

HAMILTON, Judge. Circuit citizen actions types of suits—“violation” regard- presents questions appeal This (a)(1)(A) “endangerment” subsection in the feder- provisions the citizen-suit ing (a)(1)(B). The citizen in subsection actions Recovery Resource Conservation al appeal both violation suit in this combines (RCRA), seq., et Act U.S.C. endangerment claims. The statute including government en- narrower when provides part: in relevant may a broader preclude forcement lawsuit (b) suit, provi- citizen-suit and how the provided citizen in subsection Except (c) doctrines the federalism section, may interact with com- any person sions of this and abstention. of Colorado River civil on his own behalf— mence a action in relied on court this case The district (a) (1)(A) (including against any person and the abstention provisions (b) States, any and other the United citizen to dismiss doctrines instrumentality governmental agency, or and We reverse remand suit under RCRA. permitted by to the eleventh the extent citi- pursue to their to allow the Constitution) to who amendment zen suit. any permit, of alleged to be in violation standard, condition, regulation, require- Under I. Citizen Suits RCRA ment, has prohibition, or order which relationships here the We consider pursuant chap- to this become effective among lawsuits: two state court ac- three ter; or filed by agency tions a state environmental (B) against any including person, citizen The and federal suit. details any governmen- and other United States to follow if those cases will be easier we instrumentality agency, tal or to the ex- statutory provi- first sketch the relevant by the eleventh amend- permitted tent sions. The Resource Conservation and Constitution, including to the and ment RCRA, Act, Recovery commonly known as present past or or any past generator, range policies pro- enacted and broad present transporter, past present or or disposal cedures to control of solid and treatment, operator of a stor- owner or to hazardous the United States age, disposal facility, who has contrib- or public health the environment. protect contributing past or who is uted laws, Like other federal environmental treatment, handling, storage, or present provides complex partnership for a RCRA solid transportation, disposal between authorities to federal state may present or hazardous waste which develop regulatory and enforce standards. endanger- an imminent and substantial Also other environmental like federal to health or the environment.... ment laws, give responsibil- RCRA does sole 6972(a)(1). 42 U.S.C. to ity state environmental case they specific statutory will The issues this agencies and assume that enforce (b), adequately. provi- exceptions the law includes concern the subsection RCRA require plaintiffs for citizen suits sions citizen suits in federal district give to the federal Environmental courts enforce law. notice state Agency, Protection the relevant provision, citizen-suit U.S.C. violator, and which agency, alleged and the appeal. lies the center this Subsec- (a) general a citizen if the EPA or provides authority prohibit tion suit diligently commences and bring provides juris- agency suits and state citizen enforce prosecutes its own action to diction the federal district courts. Sub- (b) appropriate More subsection specifically, given RCRA. notices were to the fed- EPA, provides regard to “violation” claims: eral the state agency, environmental and the alleged violators. The first and (b) prohibited Actions simplest issue is whether the plaintiffs (1) may No action be commenced un- pursue could continue to their citizen suit (a)(1)(A) der subsection sec- in federal court when the agency tion-—- filed a later enforcement action in state (A) prior days plain- to 60 after the yes. court. Our answer is The second given tiff has notice of the violation issue is whether the could file to— their federal citizen suit after the state (i) Administrator; agency had filed a much narrower enforce- (ii) alleged the State which the against ment action alleged the same viola- occurs; violation tors, and after alleged per- violators (iii) any alleged violator of such court suaded the not to allow the plaintiffs standard, permit, regulation, condi- to intervene to broaden that state court tion, requirement, or prohibition, enforcement action to assert the claims order, they presented then to the federal court. yes. Our answer is also except may brought that such action be immediately after such notification in the resolving After these issues in case of an action under this section re- favor of plaintiffs, the turn to we whether specting subchapter a violation of III of the Colorado River or chapter; or justify stay doctrines dismissal or of this (B) if the Administrator or State has citizen suit. Our answer to that question diligently commenced and is prosecuting no, plaintiffs so the are entitled to a civil criminal in action a court of the pursue they the relief seek from the feder- require or a United States State to com- al may district court. The district court standard, pliance permit, reg- with such certainly coordinate its efforts with the ulation, condition, requirement, prohibi- courts, may use its sound discre- tion, or order. so, doing tion in but it must allow these (a)(1)(A) In action under subsection plaintiffs proceed to in with their case of this section in a court of the United they forum have Congress chosen and that States, any person may intervene aas has authorized. right.

matter of Parties, Site, II. The the VIM and the 6972(b); 42 U.S.C. see also Hallstrom v. Litigation History 20, 31, County, Tillamook (1989) (describ- 304, 107 S.Ct. L.Ed.2d 237 Will, Defendants R. Kenneth K.C. In- ing 60-day delay RCRA’s notice and re- dustries, LLC, and Recycling, VIM Inc. quirements “mandatory prec- conditions “VIM”) (collectively operate a solid waste commencing edent to suit under Elkhart, dump in plaintiff Indiana. Lead provision” RCRA citizen suit ordering Jerry Adkins and other residents of the dismissal of citizen suit that had been filed brought against area this suit in VIM fed- ran, waiting period years before despite eral district court under RCRA and added litigation in resulting judgment final order- regulato- various state law claims. VIM’s remediation). ing ry history and the nature of the three case,

In this apply provi- we must these enforcement lawsuits essential to our to a disposition questions presented. sions citizen suit that was filed after of the to remove the grade piles, the Indiana VIM’s “C” in late when begin We by September 2008.1 Manage- grade “C” waste Environmental Department of (“IDEM”) to remove ordered VIM ment The deadline came and went without outdoor and to cease piles waste several compliance. inspected When IDEM at a different loca- of solid waste grinding operation Elkhart on October VIM’s Goshen, than in Indiana. Rather tion 2008, it found that VIM had not removed activities, oper- moved its stopping its VIM grade required the “C” waste as Elkhart, nearby a move that would ation to day, Agreed Order. The next on October residents, many Elkhart upset come 3, 2008, Elkhart IDEM filed suit By here. including Order, Agreed to enforce the Circuit Court County Management Elkhart Waste Solid regard to failure to particularly with VIM’s numerous Board had received District site. grade remove the “C” complaints from families and businesses (We suit as the first refer this 2008 vicinity. inspected IDEM VIM’s When lawsuit.) IDEM operations August Elkhart Elkhart area residents who Several ongoing it January found several would later become this feder- and solid waste violations. pollution air sought al citizen suit first to intervene attempt remedy In an some of VIM’s that first IDEM lawsuit. The intervenors violations, many regulatory sought expand scope IDEM and of the also Agreed complaint entered into an Order on the first IDEM lawsuit be- January things, yond scope Agreed Order. The Among other injunctive Agreed required sought to obtain intervenors relief that the Order VIM activities, required op- have to cease all required permits the for its to would VIM taking grade pertaining illegal disposal so-called “C” waste to erations to the stop (not facilities, putting just at the site non-permitted stop to all solid waste VIM waste), any unregulated grade waste on the at the and to remediate the berm “C” site, through sampling facility to confirm and to its condition before VIM took it VIM analysis sought that the berm not cause a over. The intervenors also dam- did through to human health the environ- common law claims of nui- ages threat and ment, sance, stop putting any negligence, trespass. op- to waste onto and VIM waste). (referring only grade 1. The classification of VIM wastes into differ- to "C” VIM grades apparently specific designations, ent VIM these as shown embraced site. The differences are critical to under- quarterly reports pursuant IDEM regarding stand the issues in this case Agreed Complaint Order. 2008 IDEM Exs. scope of the different IDEM lawsuits and this "A-material,” "B-material,” (referring C-E IDEM, particu- defined citizen suit. As "C-material”). federal EPA also and "grades” lar of waste at the VIM site include adopted these definitions in its 2009 Adminis- brush, (trees, grade recently “A” waste live regarding trative Consent Order VIM’s viola- wood, lumber, and uncontaminated which is appeal of the Clean Air Act. On VIM tions mulch), ground up grade and used for "B” attempts to retreat from these classifications (wood scraps containing waste laminated "A,” "B,” geo- by arguing "C” that plywood wood and collected from area manu- standing graphic designations of various ground up animal facturers that is to make piles record re- waste at the VIM site. The bedding), grade (formerly and "C” "B" waste however, concedes, "A,” flects, and VIM grade degraded waste that has and is no "B,” grades and "C” refer to different longer making bedding). animal suitable piles waste well as to different of waste. as tell, designations we As near as can these point purposes, our the relevant is that For adopted by were first IDEM and were incor- they grades of waste. refer to different porated Agreed into its 2007 Order with VIM motion posed July the intervenors’ to the extent 146. From present 2000 to the date, handled, they beyond claims Defendants have extending raised transported, processed stored and Agreed ar- scope Order. VIM waste, waste, “A” waste, “B” “C” that the intervenors’ claims gued should be waste, C & D wastewater treat- scope limited to the first IDEM plant ment sludge, and other solid originally lawsuit as it was filed. The wastes at the VIM site. agreed state court with VIM and asked July 147. From present 2000 to the up proposed to draw intervention date, Defendants have constructed allowing order narrow intervention. berms with solid waste materials In to this response ruling, adverse at the VIM site. voluntarily intervenors all withdrew July 148. From present scope their claims outside the of the first date, Plaintiffs have and continue They IDEM lawsuit. chose instead to pro- to experience adverse health im- ceed in federal court under the RCRA pacts, as well fear for the safe- provision citizen-suit to seek broader re- ty persons of their properties required by lief. As RCRA section as a direct proximate result of 6972(b), first sent a Notice of VIM’s handling, storage, trans- Complaint Intent to File a under RCRA to porting processing of solid VIM, IDEM, and the EPA. During the waste at the VIM site. required waiting period, neither the EPA 149. Plaintiffs plumes observe (or nor IDEM filed lawsuit intervened in daily smoke on a and continuous suit) or amended the first IDEM to assert coming basis from internal and plaintiffs’ proposed against smoldering combustion of the var- VIM. The then filed this action in piles ious waste at the VIM site the Northern District of Indiana on Octo- “A”, “B”, including the and “C” ber piles, and berms made of solid waste. In their complaint, plaintiffs federal sought plaintiffs relief under both the took “violation” care to differentiate “endangerment” and the their federal provisions of claims from the claims the 6972(a)(1)(A) §§ state asserted in RCRA. U.S.C. the first IDEM lawsuit. and (a)(1)(B). They alleged: They alleged also common law nuisance, claims of trespass, negligence, 164. IDEM’s enforcement action seeks se, negligence per gross and negligence. only to [Agreed enforce the Order allegations The detailed factual-basis of or of January “AO”] the complaint pages stretch over 17 and 72 which required Defendants to re- paragraphs. Many allegations of those re- move or properly dispose of “C” attempts regulate count IDEM’s to that VIM’s waste existed at the time of operation grade entry and thus focus on the of the September “C” AO Recognizing waste. that those cul- 2008. efforts lawsuit, minated the first IDEM 165. IDEM’s enforcement action does plaintiffs allegations also made based on not “A” or “B” address wastes site, types partic- other of waste at the entry accumulated before or after “B,” (construction “A,” ularly the & D” “C “B” AO or waste that demolition) grades, and uncategorized and entry turned to waste “C” after Specifically, waste. alleged: Moreover, the AO. the AO does that, alleged in violation of state removal of berms lawsuit require waste, regulations, statutes and VIM had caused “A” or “B” of solid

made dumping grade of “B” open or allowed the before or af- accumulated wastes stored, property on its and had con- waste AO, or “B” entry of the wastes ter tained, “B” processed, disposed grade or to wastes after that turned “C” causing waste in a manner a threat to the AO. entry of human health or the environment. IDEM Thus, allegations plaintiffs’ in- sought preliminary permanent a and waste, part grade on “C” but are based junction immediately “requiring VIM grade waste to they go beyond “C” deposit or allow the cease cause and/or “A” “B” waste. See Com- include and contaminants and waste dumping of solid ¶ violations, they Among other plaint site,” unpermitted on the Site or other consolidating, dispos- allege that VIM was requiring properly and to remove and VIM of, ing causing combustion wood site, all “B” at the dispose grade “A,” (including engineered wood waste federal, state, comply all and local waste), grade “B” and construction “C” so, doing laws in and to submit written waste, and “other solid and demolition days documentation to IDEM within 45 cover; a operating wastes” without was grade that all “B” waste had taken to been non-compliant disposal facility; solid waste permitted management solid waste “open dumping” solid wastes at the processing facility. site; “storing], containing], pro- and was fighting separate Now three lawsuits cessing disposing] of solid waste at and/or (the two IDEM suits in state courts and the VIM site in a manner that has and court), this citizen action in federal VIM hazard, attract continues to: create fire moved to dismiss this federal lawsuit. vectors, resources, air and water pollute argued that the district court did not contamination.” The and cause other subject jurisdiction have matter that alleged also VIM violated plaintiffs’ under RCRA over the “violation” regulations that can several Indiana be “endangerment” because provi- enforced under RCRA’s “violation” pursuing IDEM was the same claims in “endanger- sion. Pursuant RCRA’s state court raised provision, plaintiffs alleged ment” argued suit. VIM further the district handling, transport, processing, exercising court should abstain from “A,” “B,” disposal grade and “C” solid on the based abstention doc- waste and the berms of solid waste at the Supreme trines articulated Court presented site an imminent and sub- 315, v. Sun Oil 319 U.S. Burford danger stantial to health and the environ- 1098, (1943), 87 L.Ed. 1424 S.Ct. Colo- ment. rado River Conservation Dist. v. Water meantime, In the IDEM continued to States, 800, 1236, 424 U.S. 96 S.Ct. United inspect operation, finding Elkhart (1976). VIM’s The district court L.Ed.2d 483 ongoing violations that culminated in a sec- motion, granted finding that it ond IDEM lawsuit. On December jurisdiction lacked over RCRA viola- their after had served tion claim and that it should abstain from notice, requisite waited out the exercising jurisdiction had over all RCRA delay already had period, and filed claims under and Colorado River. Burford court, supple- citizen suit in the federal district court to exercise The then declined second lawsuit in the Elk- mental over the state law IDEM filed its appealed. have Superior hart The second IDEM claims. The Court. — chnick, —, —, Statutory Issues Under RCRA U.S. III. 130 S.Ct. (2010) 1237, 1243, (holding 176 L.Ed.2d 18 permits provision “violation” RCRA’s requirement to register copyright be against a lawsuit any person to commence bringing jurisdictional), fore not suit was entity alleged “who is any person other quoting v. Ryan, Kontrick 540 U.S. standard, any permit, to be in violation of (2004) 124 S.Ct. 157 L.Ed.2d 867 condition, requirement, prohibi- regulation, (holding that limit time for to file creditors effective tion or order which has become objections to discharge bankruptcy was pursuant U.S.C. [RCRA].” jurisdictional). jurisdictional The cate 6972(a)(1)(A). given, a § After notice is “ gory applies only ‘prescriptions delin “if citizen suit cannot be commenced eating (subject the classes of cases matter or State has commenced Administrator jurisdiction) persons (personal ju and the prosecuting a civil or diligently and is risdiction)’ implicating authority.” in a criminal action court of the United Id., Kontrick, quoting U.S. require compliance a States or State S.Ct. 906. standard, permit, regulation, with such condition, requirement, prohibition, or or- The distinction is vital. a Treating rule 6972(b)(1)(B). VIM ar- der.” U.S.C. jurisdictional opera “alters the normal first and second IDEM gues that both the system” tion of our adversarial in which statutory trigger lawsuits RCRA’s bar arguments. courts address the claims and plaintiffs’ RCRA “violation” prohibit —— Shinseki, —, Henderson claim. hold otherwise.2 We —, 1197, 1202, 179 L.Ed.2d 159 (2011) (deadline filing notice of appeal Subject

A. Matter Jurisdiction jurisdictional). with Veterans Court is not genuinely jurisdictional, and the district court treat- If a rule is parties fed statutory question obligation ed the bar issue as eral court has to raise and subject jurisdiction. in- if parties matter This was decide issue itself even the do jurisdictional A question may correct. In a series of recent cases under not. be statutes, time, many including different federal the Su- raised at for the first preme repeatedly appeal, causing Court has reminded the time on unfairness to the truly of the narrow scope parties wasting spent lower courts the efforts on jurisdictional catego- litigation point. Congress rules and the broader to that Id. ry ordinary processing specify particular claims-pro “claims rules.” can that a jurisdictional, nothing cessing “Jurisdiction” means more and rule is but it is cléar adjudicatory than “a nothing Supreme expanding less court’s that the Court is not Elsevier, authority.” category jurisdictional Reed Inc. v. Mu- rules without "endangerment” provision 2. RCRA's could constitute such an action "under” contains its own bar in 42 U.S.C. Ultimately, RCRA. the district court did not 6972(b)(2), argued and VIM to the district question reach this because it found the that plaintiffs' "endangerment” court River Colorado provision. claim was barred under that How- against hearing plain- doctrines counseled ever, the district court found that the had EPA "endangerment” Although tiffs’ RCRA claim. specified not taken of the action sec- we hold that the court's decision to district 6972(b)(2)(B)(i)-(iv) provi- tion and that those discretion, abstain was an abuse has apply. Although sions did not the district appeal any argument may it not renewed on 6972(b)(2)(C)(i) court found that section could plaintiffs’ "endangerment” have that operate aas bar if the State had commenced action, statutorily preempted claim under sec- “endangerment” its own RCRA 6972(b)(2)(B) (b)(2)(C). parties failed to address whether IDEM’s suits tion or Lines, Inc., F.3d it Air Congress that Rabé v. United from indications explicit (7th Cir.2011) (reversing dis- 868-70 results. intended such drastic juris- Title claim for lack of missal of VII bring on prohibition The RCRA diction; employee international whether EPA a a citizen suit when ing by statute went to merits was covered diligently commenced is agency “has jurisdiction), citing Greater rather than require compli an action to prosecuting” Center, City Inc. v. Chicago Combine and standard, or permit, with the same ance 1065, 1070 Cir. Chicago, 431 F.3d category falls into the requirement other 2005) summary judgment on (affirming could Congress rules. claims-processing federal constitutional claims merits of “juris expressly the prohibition have made questions); raised substantial federal dictional,” federal general neither the but Partnership, Ltd. v. GC Services Gammon statute, 28 U.S.C. question jurisdiction (revers- (7th Cir.1994) jurisdictional grant, nor RCRA’s subject lack of matter ing dismissal for 6972(a), specifies any thresh 42 U.S.C. jurisdiction plaintiff alleged sub- where requirement. jurisdictional RCRA’s old claim). stantial appear separate suits limits on citizen jurisdic “speak that do not provisions supports factor that this treat Another any way or refer tional terms limit on citizen suits is ment of the RCRA courts.” jurisdiction of the district See It the fact that the limit is not absolute. Airlines, Inc., 455 Zipes v. Trans World depend potential has the to ebb and flow 385, 394, 102 S.Ct. L.Ed.2d U.S. government agency on whether the is ing (Title (1982) filing for requirement VII an earlier lawsuit. “diligently prosecuting” jurisdic not limit charge with EEOC did 6972(b)(1)(B), (b)(2)(B)(i), §§ 42 U.S.C. (b)(2). tion); 6972(b)(1), §§ 42 U.S.C. (b)(2)(C)(i). Subject jurisdiction, matter rank Congress does not a statuto “[W]hen hand, usually of in thought on the other is ry coverage jurisdictional, limitation on It it does binary terms. either exists or non- courts should treat the restriction as might disappear not. It because of jurisdictional Arbaugh in character.” v. Y circumstances, but it’s hard to fit change of 500, 516, Corp., H 126 S.Ct. & subject jurisdic matter concept into the (2006) (Title 1235, 163 L.Ed.2d 1097 VII ability pursue tion the idea that the employees requirement for number return, and disappear, citizen suit could requirement element of a claim but not a again, depending govern on the disappear subject jurisdiction).3 for matter to its agency’s changing approach ment enforcement action. own alleged have this case directly colorable claims for relief B. The Second IDEM Suit if claims are not suc- RCRA. Even those secure, cessful, subject jurisdiction of a With matter whether because bar reason, one to dismiss they were we treat VIM’s motion as or for some other sub- 12(b)(6) failure to state a give the district court under Rule enough stantial case, granted. which relief can be subject upon matter over the claim 12(b)(6) of Rule motions including supplemental jurisdiction over Our review See, de novo. construe the com- e.g., state law claims. dismiss is We jurisdictional. County, quirements for citizen suits are In Hallstrom v. Tillamook 493 U.S. 20, 31, analysis Supreme Court has 107 L.Ed.2d 237 Under (1989), recently questions, applied to similar Supreme declined to decide more Court they 60-day delay clear answer is that are not. whether RCRA's notice and re- citizen under the most favorable to the suits Clean Act light in the Water plaint (CWA) well-pled all as true Friends Milwaukee’s Rivers accepting plaintiffs, judicial notice of mat- alleged, taking Metropolitan Sewerage v. Milwaukee facts (7th Cir.2004). record, drawing Dist., public within the 382 F.3d 743 Like ters plaintiffs’ RCRA, inferences prohibits all reasonable the CWA a citizen from Capital Corp. Electric “if commencing favor. See General a citizen suit the Adminis- 128 F.3d Corp., Lease Resolution trator or has commenced and State is dili- Cir.1997) (7th (permitting courts 1080-81 a civil or criminal gently prosecuting action judicial public notice of matters of to take States, in a court of the United aor 12(b)(6) converting a Rule 1365(b)(1)(B). record without § State....” U.S.C. In summary judg- a motion for motion into Friends Milwaukee’s Rivers we held ment). that a state enforcement action filed mere a hours after CWA citizen suit was filed standard, we turn Under did not bar the citizen action. See 382 arguments. Because statutory bar explained F.3d at 754-55. We that our straightforward, so we address the issue is holding by was dictated the “clear and suit, of the second IDEM first the effect unambiguous language” of the pre- CWA’s filed after the filed which was Id.; PMC, provision. emption see also The district court this RCRA citizen suit. Co., Inc. v. Sherwin-Williams that the RCRA violation found (7th Cir.1998) (defendant’s 610, 618-19. ar- claim in their earlier citizen suit was gument preliminary Illinois’s and in- IDEM lawsuit un barred that second formal administrative acts were sufficient 6972(b)(1)(B). § That con der 42 U.S.C. to bar a later-filed citizen suit could not contrary plain language clusion is plain statutory override RCRA’s text that (b)(1)(B). subsection effect); only barring an “action” has the (b)(1)(B) says that a citizen’s Subsection Bay Chesapeake Foundation v. American may commenced” if violation action not “be Co., Recovery 208-09 agency EPA or “has commenced Cir.1985) (CWA citizen suit filed three a civil or diligently prosecuting and is agency hours before state suit was entitled criminal action in a court of the United on proceed plain language based used ” prohib- or a The statute States State.... tenses). language the identical verb Given suit, only of a citizen commencement 6972(b)(1)(B) § in RCRA in section prosecution not the continued such 1365(b)(1)(B), § in 33 we CWA U.S.C. already op- that has been filed. It action see no reason to hold otherwise here. of a citi- prohibit erates to commencement only government if the com- zen suit “has The district court reached its different prosecuting” its diligently menced and is West, on River Village conclusion based action, not, if example, for own v. Peoples Light LLC Gas and Coke begins dili- government “commences and (N.D.Ill.2008). F.Supp.2d 847 The is tenses gently prosecuting.” The verb sue that case was whether citizen suit (b)(1)(B) bars a make clear subsection Comprehensive under the precluded citizen suit for a RCRA violation Response, Compensation Environmental after the only if the suit was “commenced” (CERCLA) 113(h), Liability Act lawsuit, government “has commenced” 9613(h), expressly U.S.C. limits not if the citizen suit was filed first. subject matter federal courts’ a, challenges to removal or interpreta- legal our to bar This conclusion follows action the EPA. The district statutory language the identical remedial tion of pursue their claims that are Village upon plaintiffs West relied court in River 113(h) beyond scope the of the first IDEM suit. to use a later- section CERCLA citizen suit an earlier-filed filed suit to bar plaintiffs’ look to the federal com- We F.Supp.2d at 852- See 618 under RCRA. judicial plaint and we take notice of mat- 113(h) uses different section 53. CERCLA public specifically, within the ters record: tempo- not include the language that does Agreed the 2007 Order and between VIM in the RCRA and CWA on ral found limits IDEM, suit, complaint IDEM’s in its first in Accordingly, analysis the citizen suits. plain- court documents associated with the could not extend to this Village River West suit, tiffs’ intervention in the IDEM first showing that CERCLA without some case from and documents the second IDEM 113(h) here. Neither applies also section suit.4 court has offered a nor the district

VIM sought The first IDEM suit enforcement approving or theory doing so. Without Order, which, Agreed of the in IDEM/VIM analysis Village in River disapproving the turn, primarily dumping, pro- dealt with merits, analysis own does West on its cessing, disposal grade of “C” the decision to treat the sec- support not ¶¶ 11(3), (4), (5), piles. and waste See AO IDEM suit as bar this RCRA ond (9). (6), case, In plaintiffs allege this the The later-filed second IDEM citizen suit. part in RCRA violations are based on plaintiffs’ ability restrict suit does not dumping, processing, disposal pursue this citizen suit. grade Complaint of “C” waste. See

¶ 168(a)-(e). plain- To the extent that the IDEM Suit C. The First overlap tiffs’ RCRA claims with the claims IDEM asserted in its first suit with re- to the effect turn next of the We waste, spect grade “C” district suit, was filed first IDEM before the found, agree, they court and we can- their citizen suit. plaintiffs filed Under pursued not be this citizen action be- 6972(b)(1)(B), § the terms of U.S.C. 6972(b)(1)(B). cause of U.S.C. if government earlier action bars this suit plaintiffs’ But to the extent require compliance it was a suit “to with claims do not asserted overlap with those standard, regulation, such condi permit, suit, plaintiffs’ in the first IDEM order,” tion, prohibition, requirement, precluded claims are not under 42 U.S.C. ie., sought require compliance if it 6972(b)(1)(B). plaintiffs’ RCRA requirements the same that the federal citizen claims suit also seek was, If it seek to enforce this suit. then waste, “A” “B” grade grade relief for citizen plaintiffs’ suit is barred under waste, types and other of solid waste that not, If it was then allows RCRA. expressly were not addressed IDEM’s proceed simultaneously. the two suits to allegations its first suit. Based on close examination of the law suits, including rejection suit, the state argues court’s this federal found, pursue efforts to their district court that IDEM’s different by intervening in the first IDEM at all but grades of waste are different suit, general conclude that fall under the umbrella of “solid we RCRA allows Supe- judicial currently pending in the Elkhart 4. VIM moved that we take notice of Court, Adkins, Attorney Jerry rior et al. v. KC the docket General State al., Commissioner, Industries, LLC, Depart- et Cause No. 20D01- Indiana and Indiana 1005-CT-00038, currently pending Management in the Elk- ment Environmental v. VIM Inc., Superior granted. Recycling, No. 20D01-0912-CC- hart Court. Its motion is Cause Second, Following logic, plaintiffs’ allegations VIM would the RCRA waste.” suit, conclude that the first IDEM in “A” encompass grade have us this case waste. waste, only grade addressed the “C” which grade regulated “A” waste as a solid actually encompassed types the other of waste under not regulated by RCRA but is well, scope completely and its waste as Indiana state law. See 329 Ind. Admin. in plain- the violation claims overlaps 11-3-1(7) (exempting Code “uncontami- citizen suit. tiffs’ RCRA growth nated and untreated natural solid regulations). waste” from state solid waste aspects of the record under Three allegations All of IDEM’s its first suit First, argument. when the mine VIM’s against brought VIM were under Indiana to intervene plaintiffs attempted brought state law. IDEM no claims lawsuit, successfully IDEM’s 2008 VIM ob against VIM under RCRA. IDEM’s first jected attempts to their to broaden the plaintiffs’ lawsuit and the RCRA citizen beyond scope grade of that suit the “C” simply overlap respect suit cannot with to address the other solid wastes waste grade “A” waste. dumping processing that and VIM The state court sus the Elkhart site. Third, beyond it is clear reasonable dis- objection prevented tained VIM’s pute grade that IDEM’s first “C” waste scope of the plaintiffs expanding from encompass lawsuit did not also VIM’s vio- beyond allegations of IDEM’s case regard lations of Indiana law with to its complaint bring their additional handling treatment of “B” grade If plaintiffs’ proposed claims. year waste. Just over a after it filed its truly overlapped allegations had IDEM’s lawsuit, first IDEM filed its second lawsuit (and entirety, objection in their VIM’s (discussed above) in it sought ruling) would have been moot. court’s injunction to from stop violating VIM Having convinced the state court to limit Indiana law in dumping processing grade the case to IDEM’s narrower “C” grade of “B” waste. See 2009 IDEM allegations, permit VIM cannot be ¶ 6(a)-(e). If Complaint allega- IDEM’s opposite position to take the in federal ted regarding tions in its first lawsuit VIM’s claim that there is no difference court and dumping processing grade of “C” ap between the cases. This conclusion enough waste were indeed broad to cover equitable ju familiar plies principle site, all the solid waste at the as VIM now estoppel: party prevails who on dicial contends, then IDEM’s second lawsuit in a ground prior proceeding one cannot unnecessary. would have been IDEM it- deny ground turn around and interprets self treatment and han- E.g., proceeding. Village later Butler v. dling grade waste and “B” grade “C” Dep’t, Round Lake Police waste as distinct violations of Indiana’s (7th Cir.2009); 1022-23 Levinson v. Unit regulations. solid waste too conclude We States, 264-65 ed Cir. allegations RCRA about “B” 1992). it simply trying VIM is to have grade grade waste and waste do not “C” reject ways. both We the tactic and con reasons, all overlap. For three these allegations clude that IDEM’s its 2008 6972(b)(1)(B) we conclude that 42 U.S.C. require compliance do not seek to lawsuit from bringing does bar standard, permit, regulation, with “such seeking this citizen suit to enforce RCRA condition, requirement, prohibition or or against respect to solid wastes der” that the seek to enforce grade their citizen suit. other than the wastes.5 “C” only confronting question 5. We are aware of one other circuit court decision a more detailed factual record Perhaps question determination is a of law.” that, contrary reading reveal to our could Property Casualty & Insurance Ltd. v. history of procedural the various Omaha, Central National Ins. Co. VIM, grades the different against (7th Cir.1991). lawsuits 319, F.2d 321 That de- properly regulated are in fact scription fits this case. We find that the Perhaps, undifferentiated solid waste. for discretion, district court abused its and we instance, decisions to the IDEM’s file first reverse. addressing grade lawsuit in 2008 the “C” “virtually Federal courts have a unflag- waste and the second lawsuit in 2009 ad- ging obligation ... jurisdic- to exercise the dressing grade nothing the “B” waste had River, tion given them.” Colorado 424 grades to do with the of waste at all but 817, duty U.S. at 96 S.Ct. 1236. This part

were of its overall enforcement strate- jurisdiction exercise on rests “the undis- gy. may These and other relevant issues puted principle constitutional that Con- properly on be addressed remand with gress, Judiciary, and not the defines the more information than is available from scope jurisdiction of federal within the con- the limited record on a motion to dismiss stitutionally permissible bounds.” New for failure to state claim. on Based the Serv., Orleans Public Inc. v. Council of record, however, existing including VIM’s Orleans, City 350, 359, New 491 U.S. preventing success in from 2506, (1989) 109 S.Ct. 105 L.Ed.2d 298 raising their claims as intervenors in the added); (emphasis see also Cohens v. Vir- suit, 6972(b)(1)(B) first IDEM section does 264, 404, ginia, 264, 19 U.S. 6 Wheat. 5 not bar RCRA violation (1821) (federal L.Ed. 257 courts “have no claim in this citizen suit. right more to decline juris- the exercise of given, diction which is than usurp IV. Abstention Doctrines given”). which is not persuaded VIM also the district court to Accordingly, a federal court’s abili exercising abstain from un- ty exercising juris to abstain from der the Colorado River and ab- Burford exception, rule,” diction “is the not stention doctrines. We review the district justified can be only exceptional circum court’s decision to abstain under the Colo- Richards, rado stances. Ankenbrandt v. River and 504 doctrines under Burford 689, 705, 2206, an 112 abuse of discretion S.Ct. 119 standard. See In- L.Ed.2d (1992), River, 468 College Surgeons City quoting ternational Colorado 424 356, (7th Cir.1998). Chicago, U.S. at 96 general S.Ct. 1236. As a However, “there is proposition, little or no discretion these exceptional circum ... in a abstain case that does not meet stances denying exist “where a federal fo requirements, traditional abstention clearly and rum important would serve an government addressing eluding whether suit one court's "[t]he observation that two contaminant at a site bars a RCRAcitizen suit complaints allege also distinct violations of addressing a different contaminant at [law],” and "the Commonwealth's RCRA ac- same site. In Francisco v. Esso Stan- Sanchez expressly implicates tion [the in a defendant] Co., (1st Cir.2009), dard Oil capacity different than the instant action.” First Circuit ques- held that the citizen suit in Id. at 12. The court also found that tion was barred section government’s protect suit was intended to 6972(b)(1)(B) part because "the two com- public generally, while citizen suit dealt plaints involve different contaminants.” Sev- potential "with the contamination and clean- may eral other factors have influenced the up particular property.” of one Id. at 13. Sanchez, ultimate conclusion in Francisco in- interest,” congressional an will. as “consider- end-run around See countervailing such PMC, Co., adjudica- constitutional Inc. v. Sherwin-Williams proper ations of relations,” (7th Cir.1998) tion,” “regard for federal-state (rejecting F.3d Quack- case), judicial administration.” quoted or “wise abstention RCRA Station, Inc., Ins. 517 U.S. enbush v. Allstate in Chico Service 633 F.3d at (1996) (“To 135 L.Ed.2d abstain situations other than omitted). (internal quotation marks those identified in the thus threat- statute RCRA,’ run ens ‘end around and would in doctrines are not Abstention judgment substitute our of Con- tended, however, choices policy to alter gress about the correct balance between considered and ad Congress itself for respect processes state administrative recently As the First Circuit dressed. timely and the need for consistent and rejecting in explained RCRA.”). enforcement of suit, is, at in a RCRA citizen “Abstention core, mechanism that al prudential a Here, plaintiffs gave the the notice re- of and lows federal courts to take note 6972(b)(1)(A)(the quired by section “viola- conflict weigh significant potentially and claim) 6972(b)(2)(A) (the tion” section that were not—or could not ing interests claim). “endangerment” Their suit was by Congress at the have been—foreseen by government not barred action taken granted jurisdiction given that it for a time 6972(b)(1)(B)(the pursuant to section “vio- class of cases to the courts.” Chico Ser claim) 6972(b)(2)(B) lation” or sections Station, Ltd., Inc. v. Sol Puerto Rico vice (the (C) claim). “endangerment” The (1st Cir.2011). plaintiffs therefore have met the relevant by Congress conditions set to have their RCRA, Congress In section 6972 in RCRA claims heard federal court. As a citi- the conditions under which specified PMC, explained language we in in go forward and the condi- zen suit could beyond only reasoning applies Bur- government which a enforce- tions under “Congress specified abstention: has bar a citizen suit. Those ment suit would ford pendency the conditions under which the in- provisions Congress show that detailed proceedings of other bars suit under citizen properly tended to allow a filed suit at (emphasis RCRA....” statutory condi- go forward when defendants, words, original). according- The VIM have been met. In other tions unusually ly, heavy face burden to show already “recognized and ad- Congress has appropriate abstention is under either specific clash of interests at dressed RCRA, River or As we ex- already Colorado issue” under and has de- Burford. plain, they fail to meet it. The district termined “the situations finding otherwise was an court’s abuse agency’s enforcement efforts or federal discretion. of a citizen suit will foreclose review Station, 633 federal court.” Chico Service A. Colorado River Abstention

F.3d at 31. those The Colorado River abstention doc Where a citizen suit has satisfied barred, statutorily trine stems from Colorado River Water conditions and is not its intent that the Conservation District v. United States Congress expressed has permits of a federal courts to defer to “con proceed. citizen suit should Use a matter of proceeding” to refuse current state judge-made abstention doctrine judicial to “an “wise administration.” easily to hear the case can amount comes essentially run and is 96 S.Ct. 1236. The doctrine end around RCRA” case, contrast, In parallel policy state court and play into when by Congress point choices opposite pending between federal court lawsuits are provisions plainly direction. The RCRA prudential doctrine parties. the same contemplate and go authorize citizen suits economy, judicial is a matter of but the ing agen forward even a or state if at the birth of Supreme Court cautioned cy parallel a later If action. we files per- this doctrine that “the circumstances beyond needed to look lan mitting the dismissal of a federal suit due guage, legislative we would find presence pro- of a concurrent state history signal a clear from Congress to the judicial admin- ceeding for reasons of wise figure ways delay courts not to out considerably more limited istration are citizen suits to enforce RCRA: appropriate than the circumstances Although prohib- the Committee has not In the theories abstention.” Id. [other of] raising ited a citizen from claims under itself, Supreme Colorado case River action, state law a section 7002 properly Court held that a district court expects Committee courts to exercise deciding from federal water abstained concerning pendent ju- their discretion rights questions govern- when the federal in way risdiction a that will not frustrate parties ment and the other interested were delay primary goal provi- of this parties comprehensive all state court sion, namely the prompt abatement of questions. the same proceedings resolve imminent and substantial endanger- ments. case, But most relevant to this the Su- 98-198, 1, H.R.Rep. No. Cong., 98th 2nd preme began analysis Court its of the fac- Sess., 1, (1984), pt. reprinted in 1984 by examining tors relevant to abstention Cong. & U.S.Code Admin. News the relevant federal statute. The statute Amendment, was the McCarran In conflicting congres- addition to gave the consent of the United States to policy sional choices reflected in RCRA a proceedings be defendant state court itself, the district court’s decision to ab- rights. poli- over water “The clear federal stain here stretched River ab- Colorado cy legislation evinced is the avoid- stention too far. Determining whether piecemeal adjudication ance of of water apply Colorado River abstention should rights system.” in a river U.S. at requires a district court to make a two- 96 S.Ct. 1236. The amendment also “First, part inquiry. the court must deter- adopted policy recognized the avail- mine whether the concurrent state and ability comprehensive pro- of state court actually federal actions are parallel.” Tyr- ceedings to rights resolve water within a Beloit, City er v. South 456 F.3d of (7th (internal Cir.2006) system. Supreme river Id. The Court de- 751 quotations omitted). so, If the court creating cision Colorado River must consider second “exceptional whether circum- proceedings deferred to those state in or- justify stances” argu- abstention. YIM’s stay congressional der to consistent with ment for Colorado River abstention fail policy. congres- The Court’s deference to parts both of the test. policy sional was all the compelling more Congress because both and the Court were parallel Two suits are for Colo taking step the unusual of requiring purposes “substantially rado River when government litigate itself to are parties contemporaneously the same claims and in a litigating substantially defenses state court. the same issues.” (internal omitted). quotation say they directly at 752 who are affected de- Id. world, unnecessary. In an Precisely symmetry formal is fendants’ violations. ideal course, “whether the suits one would IDEM expect repre- A court should examine parties, the same arise out of the sent citizen-plaintiffs, involve the interests of these same facts and raise similar factual and recognize general alignment and we essence, question In legal issues.” Id. Congress their interests even here. But whether there is a “substantial likeli provisions enacted the citizen-suit litigation dispose hood that the state will of RCRA and other environmental laws be- presented in the federal case.” all ideal, gov- cause the world is not because Lacy, Clark agencies many ernment face demands on Cir.2004) (internal omitted). quotation resources, their because administrations “Any regarding parallel doubt nature policy priorities change, and because suit should be resolved [state] regulatory agencies subject phe- jurisdiction.” AAR In exercising favor of “agency nomenon known as capture.” See ternational, Enterprises Inc. v. Nimelias Barkow, generally, E. Insulating Rachel (7th Cir.2001). A., S. Agencies: Avoiding Capture Through In- Design, stitutional 21- Tex. L.Rev. in their contend (2010) (summarizing agency-capture 6972(a)(1)(A) “violation” claim that phenomenon sources); and collecting “A” dumping processing Bagley Revesz, Nicholas and Richard L. grade, grade, grade “B” and “C” Oversight Centralized the Regulatory They violated federal and state laws. also State, 106 Colum. L.Rev. 1284-85 claim brought “endangerment” under (2006) 6972(a)(1)(B). (reviewing agency-capture litera- Neither of these RCRA ture). RCRA, therefore, Under claims, above, despite a explained as we have is interests, significant congruence of by in we can- barred restrictions Meanwhile, plaintiffs not treat IDEM and these if IDEM’s first sec- as RCRA. and they party.6 were the same allege dumping ond lawsuits that VIM’s grade grade and of “C” and “B” processing Second, the claims in these cases are waste, respectively, violate Indiana law. plaintiffs different. The are correct that The dumping first and second IDEM suits are not their claims based on and parallel purposes to this citizen suit for of “A” processing grade of waste cannot be First, Colorado River in the abstention. addressed IDEM suits under state simply, parties most are different. law because Indiana law “A” exempts plaintiff grade regulation. The the IDEM suits is the state from See 329 Ind. 11-3-1(7). agency; plaintiffs here are citizens Admin. Code dissenting colleague points closely aligned 6. Our out correct more than those of IDEM and ly plaintiffs that Colorado River abstention does not these in this case. To focus on the here, require precise identity parties. recalling at of Post different interests it is worth 508-09, citing Lacy, agency, Clark v. that when Indiana created the (7th Cir.2004). legislature deliberately But Clark and the case it chose to call it not the followed, Iatarola, Department Caminiti & Ltd. v. Behnke of Environmental Protection but Inc., (7th Warehousing, Department Manage- 700-01 of Environmental 1992), Also, applied Cir. each Colorado River ab ment. the cited cases both arose under law, being pursued by Congress contemplated stention where one case was state had not corporation parallel approved pursuit by a and the suit one or of similar cases corporation, government agency more shareholders of the same both the and citizen- corporation. plaintiffs, Congress enacting for the benefit of the inter did RCRA’s provisions. ests of the different were therefore citizen-suit Third, argument step analysis: conceded at oral ond of the Colorado River VIM ju- federal courts have exclusive “exceptional justi- that the whether circumstances” plaintiffs’ “endanger- risdiction over fy Tyrer, abstention. See 456 F.3d at 751. precedent holds that ment” claim.7 Our The court’s task “is not to find some sub- claim in- nonfrivolous “where stantial reason the exercise of federal jurisdiction of federal the exclusive vokes jurisdiction court; rather, by the district courts, stay ap- River is not the Colorado the task is to ascertain whether there exist v. propriate.” See Medema Medema circumstances, ‘exceptional’ the ‘clearest of Builders, Inc., F.2d Cir. justifications,’ that can suffice under Colo- Station, 1988); see also Chico Service justify rado River the surrender of that holding that (noting F.3d at 31 cases feder- jurisdiction.” Moses H. Cone Memorial jurisdiction al courts have exclusive over Hosp. Mercury Corp., Construction explaining leery suits and “we are 1, 25-26, 74 L.Ed.2d abstaining litigants may be un- where (1983) (emphasis original). In our their federal in a press able to state circuit, “the court must consider a number forum”). Thus, neither IDEM’s first nor might non-exclusive factors that demon- brought second suit—suits were exceptional strate the existence of circum- exclusively Indiana courts Clark, (internal stances.” 376 F.3d at 685 fully dispose Indiana state law—could omitted). quotations Those factors in- plaintiffs’ either of the RCRA claims. clude: regardless This is true of the facts that actions, 1) defendant both juris- whether the state has assumed generally 2) interests diction over property; the inconven- interests, aligned with IDEM’s 3) forum; ience the federal the desira- generally both suits deal with VIM’s treat- bility avoiding piecemeal litigation; ment of facility. “solid waste” the same 4)the order The plaintiffs’ RCRA claims could not be 5) forums; obtained the concurrent fully “parallel” with either of IDEM’s suits law, of governing source state or for purposes of the district court’s absten- 6) federal; adequacy the of state-court tion under the Colorado River doctrine. protect action to the plaintiffs federal finding The district court’s otherwise was 7) rights; progress the relative of state an abuse of discretion. 8) proceedings; pres- and federal the parallel, jurisdic-

Even if the were ence or absence of suits concurrent 9) argument tion; removal; also availability fails at the sec- the federal”); majority exclusively 7. The of courts that have examined Marrero Hernandez Co., 272, jurisdiction F.Supp.2d whether over RCRA citizen suits v. Esso Standard Oil 597 (D.P.R.2009) Enters., Jester, exclusively federal have concluded that it is. 282 K-7 L.P. v. 819, Legs (E.D.Tex.2007); F.Supp.2d See Blue v. United States Bureau Indi 827 1094, (8th Cir.1989) Affairs, 867 F.2d Trucking, Donley, White & Brewer Inc. v. 1306, (C.D.Ill.1997); (stating ju F.Supp. that federal courts have exclusive but see suits); risdiction over RCRA citizen Davis v. Sun Oil 611-12 Interfaith Indus., 1998) Community Organization (comparing jurisdictional Inc. v. PPG Cir. lan Inc., (D.N.J.2010) F.Supp.2d guage jurisdictional in RCRA to Title VII lan Mathson, (same); Remington guage analyzed by Supreme 2010 WL Court in Yel (N.D.Cal. 26, 2010) Freight System, Donnelly, at *8-9 Mar. low Inc. v. 494 U.S. (same); Arshed, 820, 823, City Waukegan v. 2009 WL 110 S.Ct. 108 L.Ed.2d 834 *1, (N.D.Ill. 23, 2009) (1990), holding at *3 Feb. that courts do not ("Indeed, although entirely not a settled mat have exclusive over RCRA citizen ter, suits). most courts have held that RCRA actions safety the health and of their resi- 10) protect nature of or contrived the vexatious at But when we look dents. Post 509-10. claim. the federal whole, that Congress at as a we see (citation omitted); at 754 Tyrer, faith in place chose not to absolute also Hosp., H. Cone Memorial also Moses see It agencies. provided and federal for 927; 23-27, 103 S.Ct. Colorado at 460 U.S. to enable citizens to citizen suits affected River, 818-19, at 96 S.Ct. 424 U.S. law enforcement even push vigorous a “me- not meant to be factors are These agencies are more in- government when checklist,” require but careful bal- chanical slowly. compromise go clined to district court. See by the federal ancing doing nothing in this case are plaintiffs Hosp., 460 U.S. H. Memorial Moses Cone exercising rights than that Con- more weight to be 927. “The at protect them to their own gress gave may vary greatly any one factor given to safety. health and case, partic- depending on from case to case, case,” but setting ular dissenting colleague also asserts Our must be made “with the evaluation not identified a federal inter- that we have heavily weighted favor balance impaired if this federal est that would be jurisdiction.” Id. exercise of stayed pending outcome of the action is “a found there was The district court respect, at 511. state actions. Post With litigation,” piecemeal real threat of very that were re- plaintiffs we do not believe judi- amount of duplicate the which would so, early especially to do quired the dis- to resolve cial resources needed lawsuit, stage of their federal which was possibility of incon- pute present stayed actually but dismissed. Con- previously For reasons sistent results. this action to be filed gress authorized stated, court we believe that district agencies when the federal and state chose in the weight much on this factor put too their own actions with- respond not to The text of sec- of a RCRA suit. context waiting That prescribed period. in the envisioned, Congress tion 6972 shows respond enough, failure to is reason embraced, paral- expressly permitted RCRA, pro- action to to allow the federal (ie., litigation when the “piecemeal”) lel give oppor- these ceed and to citizen suit has satisfied RCRA’s think it tunity to act for themselves. We determined, in the Congress conditions. want to waste unlikely these suit, judi- citizen context of a RCRA truly on unneces- energy their time and efficiency simply paramount is not the cial litigation. they If can be satisfied sary citizen and permits concern. The statute protecting that IDEM is in fact the future prosecuted lawsuits to be si- government they may adequately, interests their citizen-plain- multaneously, long so as the Congress lawsuit. But drop choose to this notice and complied have with the tiffs plain- that choice to given and RCRA have in the statute. filing requirements prior tiffs, not to the federal courts. Until not troubled Congress was Because choice, they are enti- make that plaintiffs potential for litigation” and “piecemeal vigorous for more enforce- push tled to outcomes, the factor is not an inconsistent designed protect to their ment of the laws required for extraordinary circumstance health, safety, property. When this River abstention. Colorado merits, if finally case addresses have been resolved out cor- the IDEM actions dissenting colleague points Our then, to court will be entitled role the federal gives states a vital rectly that RCRA how the resolu- plaintiffs insist that show problems to managing in environmental cases was not sufficient. But claims under in tion of those federal law either of its suits, make such a “A” plaintiffs showing grade need not waste is regulated early stage litigation. only this of the federal under federal law. There is no rea- expect son to that state courts hearing Remember, too, case, in before IDEM’s first and second suits will be able filed their federal suit under provide any remedy regard at all with RCRA, attempted in they to intervene “A” grade waste. Nor will the state bring first suit to their claims. IDEM’s courts be able to take action under objection, they Based on VIM’s were re- “endangerment” provision. RCRA’s VIM words, In other but for buffed. concedes that for a claim objection, piecemeal there would no be brought provision RCRA lies litigation. plain- Much of the substance of exclusively in federal court. These are not claims have been en- tiffs’ RCRA would extraordinary might circumstances that suit, in compassed IDEM’s first as would warrant abstention.8 “B” waste claims IDEM’s second suit, successfully Having for matter. The district court’s use of Colorado Riv plaintiffs’ attempt bring blocked the all er unprecedent this case was suit, claims in IDEM’s of these first VIM, court, ed. the district and our dis object having should not now be able to senting colleague any have not identified simultaneously to defend itself against court, apart case in from the district by the state and citizen-plain- claims case, court’s decision in this in which a above, tiffs. As we said VIM cannot have RCRA citizen suit that complied with the ways. give it both no weight We to this statutory requirements was nevertheless analysis factor of the Colorado River stayed or dismissed under Colorado River. suit, the context of a partic- RCRA citizen Congress’s Given clear expression of its ularly one which the defendants suc- permit intent to parallel, simultaneous liti thwarting plaintiffs’ ceeded efforts cases, gation in many RCRA other courts bring their claims the first action. hearing this issue under RCRA or under CWA, The district court also found that with its identical lan fully capable state court was of providing guage, have declined to abstain under Col remedy an adequate plaintiffs’ See, and that the e.g., orado River. Proper Snellback really ties, RCRA were state law claims Development Corp., L.L.C. v. Aetna (N.D.Ill. dressed as RCRA claims: superfi- “While 2009 WL at *2 June 2009) (Colorado cially may appear it gov- that federal law ap River abstention not claims); erns the outcome of propriate RCRA Spillane RCRA claims, that really is not the situation.” Commonwealth Edison 291 F.Supp.2d (N.D.Ill.2003) Particularly regard grade (same); to the “A” Long Is Fund, waste and the “endanger- Soundkeeper land Inc. v. New York claim, Protection, ment” each propositions City of these Dep’t Environmental (E.D.N.Y.1998) Again, incorrect. brought F.Supp.2d IDEM has not argues 8. VIM provide that if the state courts the order full the future if state courts a suffi- grade grade remediation of the "C” and "B” remedy problems cient for at the VIM facili- lawsuits, pending waste as a result of IDEM's ty helpful analy- not in the Colorado River —is plaintiffs’ "endangerment” the then claims that, point stage The at sis. is least at this of disappear any endangerment will because case, the we cannot assume that either of the posed by the the site will have been plaintiffs' adequately RCRA claims can be speculation plaintiffs' cured. This the —that by remedied the state court. might point become moot at some (Colorado The improper River abstention for lems here. district court abused its suit; effectively stay a “would CWA citizen by invoking discretion Colorado River ab- provision citizen suit rewrite the stention to decline to hear this suit citizen CWA”); Ins. New Mutual Co. York Life of under RCRA where the have met 160820, at Corp., 1998 WL *5 v. Mobil statutory requirements by set Con- 1998) (N.D.N.Y. 31, (rejecting Mar. Colo gress.9 rado River abstention for RCRA claims); Pirgim Public Interest Lob

CWA B. Abstention Burford Co., v. 1996 WL by Dow Chemical 1996) (E.D.Mich. (reject Feb. at *5-7 The district court also held that absten ing Colorado River abstention under CWA appropriate tion was under the Burford citizen-plaintiffs complied with stat where doctrine, stemming abstention from Bur input specifically is con ute and “citizen Co., 315, 317-18, v. Sun Oil 319 U.S. ford templated provided for under (1943), 63 S.Ct. 87 L.Ed. Act”). Clean Water challenge involved a federal court to the inapposite. The cases VIM has cited validity of a Texas Railroad Commission Circuit, One, from the Fifth stands granting permit order a to drill oil wells. that a proposition uncontroversial RCRA Texas had established a comprehensive statutorily preempt- citizen suit that is regulatory regime for oil in gas satisfy case-or-controversy ed must re- dustries that was administered III quirements of Article of the Constitu- 320-25, Commission. See id. at 63 S.Ct. Org. tion. Environmental Conservation 1098. The state had also created a thor (5th Dallas, City ough, particularized system judicial re Cir.2008) (mootness inquiry appropriate is view where Commission orders could be CWA). brought in a citizen suit under the appealed only to state courts in partic one ruling also looks to our in Friends 325-27, county. ular See id. at Rivers in which we remanded Milwaukee’s recognized 1098. The Court Tex development for further of the defendants’ gas as’s interest a unified and oil policy arguments suit was significance due of those industries judicata. res See 382 F.3d at barred economy. in the state’s id. at See 765. Neither of these cases assists VIM. S.Ct. 1098. Because Texas had routed all course, suggest, do not that once a We through Commission cases the state court has cleared citizen suit RCRA’s county, spe in one that court had become hurdles it is immune from all other consti- cially equipped to those handle doctrines, cases. preclusive tutional and such as mootness, Supreme parallel Court found that standing, pre- and claim or issue jurisdiction prob- clusion. None of these hurdles are court would interfere with a appropriate 9. When and "has the Colo- additional advan- River, strong preference rado our circuit has a tage bringing the case back before the stay for a rather than a dismissal of the feder- judge if a need- same federal determination is explained we in Lumen al suit. As Construc- preclusive ed as to the effects of the state tion, Inc. v. Brant Construction judgment point, or decisions.” Id. On this all 1986): dismissal, Cir. “A even panel agree that it members of prejudice, without creates a risk that the fed- abuse of discretion to dismiss case under plaintiff eral will be time-barred from rein- River, though Judge Ripple Colorado would stating proceeding if the his federal suit stay, only if the affirm district court had does not result in final decision on the stayed the case. stay permits merits.” A the court to retain 504 is not The state must regulatory ry regime sufficient. designed state

specially 332-34, may 1098. be at some forum in which claims See id. “offer scheme. forum must “stand in a litigated,” and this cases refined the doc Later oversight relationship of technical special situations to two narrow trine evaluation of or concentrated review the may courts abstain Burford. Casualty In- Property those claims.” & First, may choose to ab court a federal Ltd., In 936 F.2d at 323. other surance ques it is faced with “difficult stain when words, judicial by review state courts with implicate signifi of state law” that tions specialized expertise prerequisite is a policies. See New Orleans cant state International abstention. See Serv., City v. Burford Public Inc. Council of (Bur- at 364 College Surgeons, 153 F.3d 350, 361, Orleans, 109 491 U.S. S.Ct. New appropriate abstention was not be- (1989) (“NOPSI”); 105 L.Ed.2d ford jurisdiction general cause court of River, at U.S. S.Ct. Colorado final deci- abstention). could review administrative (discussing Burford sions); Murphy, (The Nelson correctly deter court here district (7th Cir.1995) (because did not Illinois did not type that this of abstention mined challenge impose policy regarding and VIM does not a uniform apply, seek to conclusion.) Second, may also abstention mentally persons ill con- the treatment of when concurrent federal appropriate be mental facilities and instead fined its disruptive of state jurisdiction would “be responsibility among divided its criminal policy a coherent efforts to establish statewide, courts abstention did Burford public to a matter of substantial respect apply). not NOPSI, concern.” 491 U.S. at River, 424 quoting Colorado

S.Ct. brought under Indiana’s en Suits 1236. In other S.Ct. vironmental laws are heard courts words, may federal courts abstain when jurisdiction general throughout the state. of federalism warrant deference principles § 13-30-1-9. Unlike the See Ind.Code regulatory regime. to a state’s The dis appeals specialized state court heard trict court found that this second basis for from the Texas Railroad Commission deci appropriate be abstention was Burford Burford, general sions Indiana courts of achieve cause Indiana has acted to in a special do not “stand rela goals by designing own environmental a tionship oversight of technical or concen regulatory regime develop, control and trated review” to evaluate environmental a preserve the environment on statewide Property Casualty Insur claims. See & basis, and that would suit Ltd., Conceding ance 936 F.2d at 323.10 require second-guess the district court to general jurisdiction courts of Indiana application IDEM’s of Indiana law. We courts,” “specialized nonethe disagree with the district court’s conclu system less contends that the Indiana sion. qualifies as a handling solid waste “special proceeding” warranting Our cases teach that for this sec Burford points abstention. VIM out that a court apply, ond basis regúlate may appoint special exper- of a a master with the mere existence statewide below, explain permit As we decisions a from a decision IDEM Commis- agency regarding grant Adjudi- administrative to the Office of Environmental sioner different, see, may e.g., permit denial be cation), permit case. but this is not (directing appeals Ind.Code 13-15-6-1

505 stention); F.Supp.2d actions, Enterprises, K-7 562 Ind.Code in environmental tise 13-30-1-10, abstention); pro- (rejecting that the statute and at 826-28 Burford types Holdings, relief these v. Racetrac specific College Park LLC vides Inc., But Bur- suits, Petroleum, § 13-30-1-11. Ind.Code F.Supp.2d It argument. (N.D.Ga.2002) speaks to itself un (rejecting 1326-29 abstention ford must, by state judicial that review teaches jurisdiction doc primary der and Burford in a few design, be concentrated legislative trine); Trucking, White & Brewer its narrow abstention courts for particular F.Supp. (rejecting at ab 1311-14 Burford 319 U.S. applicable.11 to be See doctrine stention); P’ship v. Craig Lyle Ltd. Land 326-27, The Indiana 1098. at S.Ct. O’Lakes, Inc., F.Supp. 483-84 satisfy general jurisdiction do courts of (D.Minn.1995) (rejecting abstention under absten- condition of this essential Burford jurisdiction doc primary Burford regu- of a state tion. The mere existence trine). op- latory regime, providing even one VIM relies on one case from the Sixth relief, specific masters and special tion for in which was Circuit abstention Burford federal courts to abstain. permit does not suit, upheld in a citizen but NOPSI, at 491 U.S. S.Ct. See easily case it and several others like 2506. distinguishable. They all im amounted to rejected arguments parallel We proper permitting collateral attacks on de in PMC Inc. v. Sherwin-Williams cisions for which there were other chan Co., real at 619. VIM makes no 151 F.3d judicial nels for review. In Coalition For reasoning our distinguish effort to LWD, Inc., Health Concern v. 60 F.3d case, plain that where a in which we found (6th Cir.1995), the Sixth Circuit the statuto tiffs RCRA claim had satisfied found that the district court should have ry requirements by Congress, set Burford hearing abstained from a RCRA citizen be “an end run around abstention would challenged suit that the hazardous waste recently agreed The First RCRA.” Circuit Kentucky’s issued permits were under a district reasoning with this and reversed 1195; system. at regulatory See id. see citi abstention a RCRA court’s Burford Technologies In also Palumbo Waste Inc., Service Station zen suit. See Chico (4th Cir.1993) dus., 989 F.2d 159-60 31-34; Boyes also v. Shell 633 F.3d see (Burford abstention warranted in a RCRA 1260, 1270 Oil Products brought citizen suit section Cir.2000) ab (finding that district court’s 6972(a)(1)(B) of an against operators exercising jurisdiction stention from incinerator; suit was a collateral attack on pri suit under hear RCRA Burford operating permits issued to the incinerator mary improper doctrines was Ohio); law). by the state of Ada-Cascade Watch preempted state because RCRA Inc., Recovery v. Cascade Resource Co. majority addressing of district courts Bur- (6th Cir.1983) (Bur- 903-06 abstention this context have also ford See, appropriate e.g., refused to abstain. ford Interfaith decision to issue challenge Michigan’s at 307-10 Community Org., F.Supp.2d facility, where permit River ab- to hazardous (rejecting Colorado “large body prior clear. Where a of courts” could In at least one of our decisions we review, provide judicial special- phrases "specialized there is no forum” and used interchangeably, proceeding that the es- "specialized proceeding” ized forum or offers Ltd., see, Casualty oversight needed for e.g., Property sential technical Insurance Buford However, apply. meaning abstention to See id. 936 F.2d at 323. our action”). system- governmental complex supplant Allowing developed state had law process and state permit plaintiffs bring atic review to their citizen suit in process to that challenges centralized under RCRA federal court will not dis- court); Ass’n v. Sugarloaf Citizens specific rupt comprehensive regulatory IDEM’s ef- 52, 1994 County, 33 F.3d WL Montgomery contrary, forts. To the exercise of federal Cir.1994) 447442, (unpublished at *6 jurisdiction in these circumstances will fur- decision) were a (plaintiffs’ RCRA claims policy ther federal and state environmental by permitting decision collateral attack on goals disruption without real risk of agency; abstention state environmental regulatory gov- efforts the concerned in- warranted to avoid under was Buiford agencies. ernmental The district court’s scheme); complex statutory terference in exercising ju- to abstain from decision 6972(b)(2)(D)(prohib- § see also U.S.C. under risdiction abuse of Burford 6972(a)(1)(B) challenge iting to use of discretion. decisions). words, In other permitting acting contrary Finally, recognize busy we that the plaintiffs were dis- decisions to issue the respective states’ trict court’s decision to abstain this case not in concert with' permits question, healthy on a respect was based for state that, unsurprising those decisions.12 It is and a to duplicating courts desire avoid or context, limited the Sixth and their interfering with efforts. For the rea- Fourth would conclude that those Circuits explained, sons we have we believe the disruptive collateral attacks would “be congressional policy choices reflected in poli- state efforts to establish a coherent provisions RCRA citizen-suit remove NOPSI, at cy,” 491 U.S. options abstention from the district context, very in that and that differ- court’s toolbox. The district court retains here, ent from the one Burford other for working smoothly tools with the play could a role. state courts. There is no reason the fed- Here, however, plaintiffs’ citizen suit judges eral and state cannot confer with any permitting is not a collateral attack on manage- one another and their coordinate regulatory or other decision the State cases, ment of the including related discov- of Indiana. The suit is struc- ery. judges Federal district often need to to complement tured and enhance IDEM’s make with such efforts to coordinate efforts, brought as citizen suits trial judges dealing when with the com- 98-198, H.R.Rep. RCRA should. See No. plexities litigation of multidistrict under 28 I, (1983), pt. reprinted in 1984 dealing 1407 and U.S.C. when com- (in U.S.C.C.A.N. the course of plex discovery and other coordination amending to RCRA broaden its citizen suit problems.

authority, noting that citizen suits “com- If comprehensive IDEM should achieve plement, rather than conflict agency with” lawsuits, relief its state court the federal law); enforcement of the see also Gwalt- judge will press be entitled to the citizen- ney Smithfield, Chesapeake Bay Ltd. v. Foundation, Inc., to they hope what more to 484 U.S. (1987) (a accomplish in emphasize, S.Ct. 98 L.Ed.2d 306 “citizen this suit. We however, suit is meant supplement to rather than to that the federal court in this case Additionally, Michigan proceeding necessary support Ohio and each used Palumbo, procedure an administrative that directed the abstention. See 989 F.2d at 159 (Ohio); permitting review of 720 F.2d at decisions to one state Ada-Cascade Watch agency specialized (Michigan). or commission—the forum juris- is not against citizen suits RCRA forward here. Con- duty press has a majority opinion these also cor- dictional. The gress has extended in a district relief right pursue that the bar does not rectly holds required are not plaintiffs The court. plaintiffs’ II of the com- apply to Count agency the state rely exclusively on “endanger- seeking relief under the plaint, they may only watch in which lawsuits RCRA, of 42 U.S.C. provision ment” goal The of RCRA is from the sidelines. 6972(a)(1)(B). imminent and abatement of prompt

“the claim under the Regarding plaintiffs’ endangerments,” and the dis- substantial RCRA, provision “violations” U.S.C. progress to allow duty has a trict court 6972(a)(1)(A), I concur that the first goal that to be derailed slowed toward action, by filed IDEM in state October pro- possible delays because of claim. completely does not bar this Legs, Blue ceedings. See IDEM suit is That the focus first 98-198, 1, re- H.R.Rep. No. quoting plaintiffs narrower than the action 5576, 5612. in 1984 U.S.C.C.A.N. printed sought bring plain- is evident from the V. Conclusion tiffs’ denial the state court intervene filing IDEM’s of a second and from suit. RCRA citizen suit should plaintiffs’

The suit, majority The second IDEM as the forward, except as to the violation go concludes, was filed too late to constitute a concerning grade waste that “C” IDEM lawsuit bar to the federal suit. part of the first were In VIM. all other re- against defendant majority’s agree I also candid statutory met the re- spects, precise that the contours of the admission plain- of RCRA. Because quirements IDEM suits are difficult to ascertain. statutory requirements tiffs satisfied importantly, the exact contours of More suit, their citizen abstention bringing might granted be in the the relief should not have been used doctrines predict. IDEM are difficult to Final- suits pursuing the ave- block the from ly, I concur that the district court abused Congress gave them RCRA. nues that in finding abstention under its discretion judgment dismissing The district court’s v. Sun Oil 319 U.S. and the action is the case is Reversed (1943), 63 S.Ct. 87 L.Ed. doc- proceedings. Remanded for further appropriate. trine RIPPLE, Judge, concurring in Circuit dissenting part.

part B. majority opinion on several join I company my I from col- part Where issues, agree majori- I with the but cannot respect application to their leagues is with regarding ty’s discussion and conclusion River abstention doctrine. of the Colorado under Colorado River Water here, my disagreement is not total. Even States, District United Conservation Nevertheless, position I view the taken 1236, 47 L.Ed.2d one, my colleagues overly rigid to be an (1976). respectfully I must dis- therefore which, of this under the circumstances sent.

case, contrary a result produces A. procedural intent of RCRA and a overall courts in future straitjacket for district my colleagues I concur with on several bar cases. agree issues. I point applica- notably, must be the its abstention cousins. Most it starting clearly require, application, It estab- does not in its usual of review.

ble standard jurisdiction. abnegation total of federal applicable that the standard re- lished Instead, simply prudent it allows a exer- scrutiny of a district court’s view for our postpone cise of discretion in order to fed- the Colorado River decision to invoke ab- judicial might intrusively eral action that is abuse of discretion. stention doctrine impair the work of state courts or result Ltd. v. Cent. Nat’l Ins. Prop. & Cas. Ins. (7th duplication conflicting effort or even Omaha, F.2d Co. Constr., determinations. See Lumen Inc. Cir.1991); see also Will v. Calvert Fire Co., v. Brant Constr. 655, 664, Ins. (7th Cir.1986). (1978). Admittedly, given

57 L.Ed.2d 504 cast, it is inher- this standard’s rhetorical I at As have indicated the threshold of ently vague susceptible and therefore that, opinion, question there is no application degrees vigor. with different of given filing the dilatoriness of IDEM in However, bottom, it simply requires court, the second suit the appellate that courts allow courts a district file, maintain, right have the and to amount significant of discretion to choose their federal action. That is not the issue among options might expect the that we Rather, we must resolve. we must deter- jurist reasonable trial to consider in the mine whether the district court abused its situation at hand. United States v. De- discretion when it that determined the two (7th Cir.1997). poister, 116 F.3d ought proceed state court actions with- proceeding out a simultaneous in federal said, That there can be no doubt that court. great abstention must be invoked with circumspection

care and because it consti that, It is clear with respect to at least abnegation authority tutes an given determination, aspect one of its the district the federal courts statute. See Colora court did abuse its discretion because it River, do U.S. at S.Ct. precedent dismissed the federal suit. Our hortatory and, principle helpful This is in stay appropriate makes clear that a is the deed, essential, understanding to our of of proceeding course when Colorado River said, the abstention doctrine. That the Constr., abstention is invoked. Lumen principle working does not become a Inc., rule 780 F.2d at 698. But does this mis- of decision until we focus on the relation step necessarily render the remainder of ship particular statutory between the analysis the district court’s an abuse of particular cause of action and the absten inquiry discretion? requires prag- This tion doctrine at issue. See New Orleans matic of assessment the circumstances and Serv., Pub. Inc. City v. Council a careful policies examination of the that of of Orleans, 350, 359-60, New 491 U.S. 109 animate the RCRA statute. 2506, 105 (1989). S.Ct. L.Ed.2d 298 The test articulated for the invocation of especially crucial, This task is and nu- requires par- Colorado River doctrine anced, when litigation the abstention doctrine at is- allel extraordinary circum- sue is the Colorado River doctrine. This stances. The district court’s conclusion doctrine, as it developed has been in feder- that requirements present both al jurisprudence over the last several dec- that abstention was the better course of ades, particularly is a proceeding certainly flexible tool that is one of the rea- far susceptible more open harmonization with sonable choices to the district court. substantive than Regarding parallel litigation, schemes some we have nev- tirely clear. parties apparent the case be Nor is it required er Lacy, identical. See Clark analytical plain- neat into which the boxes (7th Cir.2004). Here, no sug- one has tiffs have the waste for categorized pur- state, in its role gested protec- that the are, poses of as a identification matter of citizens, safety tor the health fact, from the substantially objec- different any way adverse to that has an interest tives of the state suits. How two importantly, Just as all of plaintiffs. claim plaintiffs’ “endangerment” differs and state actions involve the substantively from the claims of IDEM land, alleged activity the same plot same proceedings the state is also not shown. It essentially the same the removal what, simply anything, if not clear will Exceptional that land. circum- waste from be left for the federal suit to undertake if stances, in favor counsel of absten- prevails, any the state substantial way, tion, Although exist.1 also in the state Nor is it evident actions. RCRA, alleged pri- have will there be a need for substantial mary is state source of law law: Indiana’s additional after the state remediation ac- Plan, Management enacted Solid Waste tions have run course. their The state court also pursuant to RCRA. jurisdiction, first at least one obtained The majority opinion emphasizes that it the proceedings, of state court the second gives weight piecemeal no to the threat of. IDEM, progressed has rela- by suit filed so, majority litigation. doing In the focus- case; tively this federal in- further than solely es on that section of the RCRA deed, in the state case have parties the statute that for a citizen provides suit agreed order the state submitted the nonresponsive when state has been court. inadequately responsive citizens’ Additionally, proceedings the state seem 6972(b). complaint. Al- See U.S.C. adequate all of to address the though ought no section doubt to be parties the ma- interests. Neither nor the in primary inquiry, the focus of our deter- jority a have identified federal interest the mining propriety of an abstention deci- if any way impaired that in the federal is sion, important it is to read especially the stayed pending action is outcome of section within the context of the entire the state action. The district court was statutory scheme. we read When sec- conclude that the entitled to concern tion the context of the entire RCRA prompt endanger- attention to statute, points especially two become sa- pro- ments met the two state court is First, analysis. lient to our the statutory addressing operations. ceedings places great emphasis permit- scheme on plaintiffs claim that the suit federal manage the waste, ting government envi- range of the involves a wider but problems endanger of the state actions not en- ronmental contours the cy by majority, protect 1. As of the quoted the factors to consid- state-court action to feder- 7) determining extraordinary plaintiffs rights; progress er circum- al relative the 8) stances include: proceedings; of state and federal presence jurisdic- 1) of concurrent or absence jurisdic- whether the state has assumed tion; removal; 9) 10) 2) availability of property; tion the inconvenience of over forum; 3) or contrived nature of the desirability vexatious the federal 4) federal avoiding piecemeal litigation; claim. the order Beloit, Tyrer City 456 F.3d South obtained forums; 5) (citation Cir.2006) quotation gov- the source of concurrent federal; law, 6) omitted). erning adequa- marks state or safety of its residents.2 This under health and suits RCRA. See Chico Serv. when, Station, important Ltd., especially is Inc. v. concern Sol Puerto Rico (1st here, PMC, developed Cir.2011); it the state that has is F.3d 31-32 Inc. implemented disposal plan the waste and v. Sherwin-Williams Second, (7th Cir.1998). through it state law.3 implements However, abstention hardly typical is dismissal, the situation before us requires not a Burford in which a citizen RCRA citizen suit stay, of the case. See Illinois Bell Tel. Co. to the state for relief application makes Illinois, Inc., v. Global NAPs denied, triggering right thus (7th Cir.2008). and is discussed, As Here, a citizen suit under RCRA. the state inappropriate dismissal of this case is be commenced one action had fact focused cause the have met the and, part on at least of the violation albeit requirements bring a federal suit. Ac RCRA, after the deadline stated com- cordingly, opinions finding those absten action aimed at abating menced another tion under the inappro doctrine Burford of which the more the waste priate are not relevant for an examination Therefore, potential complain. for du- of whether abstention under the Colorado plicative proceedings, which could result in River doctrine appropriate. opin Those confusion and waste is a concern that mili- ions, which have found applying tates towards abstention. inapplicable, do not address abstention un fact, der the prior precedent

Our Colorado River doctrine. In holdings and the they explicitly note that application although sister circuits do not constrain absten tion under inapplicable, Colorado River abstention doctrine is absten Burford in a federal citizen suit tion might under RCRA.4 under other doctrines still be Chico, previously Courts have un- appropriate. held abstention See 633 F.3d 26 n. (“Because der the doctrine inappropriate for the district court based its Burford 160820, objectives Corp., 2. The stated of RCRA reflect a vi- York v. Mobil 1998 WL at *5 (N.D.N.Y. cooperation. 1998). contrast, sion of state-federal See Mar. In 6902(a). § Specifically, U.S.C. states would proceedings state in this case deal with viola- RCRA, implement, compre- create and under tions under Manage- Indiana’s Solid Waste plans regulating hensive solid waste. See 42 Plan, fact, ment similar to the federal suit. In U.S.C. 6941. it is not clear whether the federal claims are actually substantively different from IDEM’s Management See Indiana’s Solid Waste 3. claims in state court. Plan, approved the EPA and codified in the cases, remaining In the two both the state Indiana Code in section 13-20 and Title and federal suits involved environmental 328 of the Indiana Administrative Code. cases, however, claims. In both the state agency failed to file its suit in state court majority opinion 4. The cites to five district point before the federal case—a which the finding court decisions abstention under the emphasized. Long district court See Island inapplicable Colorado River doctrine in a fed Fund, Soundkeeper City Dep't Inc. v. New York eral suit under RCRA or the Clean Water Act Prot., F.Supp.2d Envtl. ("CWA”). Op. at 502-03. Three of these (E.D.N.Y.1998) (noting agency that the state opinions found abstention under the Colorado opportunity "had the to take the lead in en- inapplicable River only doctrine because standards, forcing prescribed but declined federal case raised environmental claims un so”); CWA, Pirgim Lobby to do Pub. Interest v. Dow der RCRA or and the state in case Co., (E.D.Mich. Chem. 1996 WL at *6 only Prop., volved tort claims. See Snellback 16, 1996) (finding Feb. "the order in which Corp., L.L.C.v. Aetna Dev. 2009 WL (N.D.Ill. 9, 2009); Spillane greatest at ‘"l June was obtained v. Com is Here, importance”). F.Supp.2d monwealth Edison IDEM filed its first suit (N.D.Ill.2003); prior Mut. Ins. Co. New to the federal suit. Life judicial wasted resources. These con strain of solely on the decision precise not ar- were the motivations Colorado has cerns defendant] and [the River and it is not clear how under Colorado Riv for abstention gued er5 appli- impaired interests are if the plaintiffs’ we do not address appeal, in this stayed. Accordingly, River doctrine I cability of the Colorado federal case is (not- PMC, Inc., here.”); at 619 from respectfully removing must dissent applying room for may “there be the de ing that from the district court’s discretion ... cases doctrines of abstention in stay upon cision to case has a formal administrative voking abstention under the Colorado Riv the citizens’ progress proceeding er doctrine. disrupt”).

suit would majority opinion contends that be- exclusively raise an

cause the claim “endangerment” claim—the 6972(a)(1)(B) inap- —abstention v. Medema based on Medema

propriate

Builders, Inc., 210, 215 Cir. Medema, however, 1988). This court In re MOTOROLA SECURITIES establishing a clear that it was not made LITIGATION. that Colorado River ab- categorical rule the federal is forbidden whenever stention No. 09-1750. exclusively federal claim. case involves Appeals, United States Court of (“[W]e not mean to create a mono- Id. do Seventh Circuit. subject exceptions.”). In lithic rule to no Medema, “perhaps contemplated we Argued Oct. 2009. circumstances,” in rare abstention under 4,May Decided appropriate be even River would Colorado at 212. exclusively federal claims. Id. for Medema, involves a stat- this case

Unlike coopera- emphasizes

ute that federal-state

tion; any showing there is an absence of cause of action or the the federal impaired would be

rights of stay; and it is not clear proceedings sought the state

remedies substantively different from those re- in the federal case.

quested in this case is apparent does seem

What litigation of the actions

that simultaneous supervision of

and simultaneous process by state and federal

remediation recipe delay, will be a for confusion

courts judicial gard resources and Dist. to conservation Colorado River Water Conservation See States, 800, 817, (cita- disposition litigation” comprehensive v. United (1976) (noting omitted)). concerns 47 L.Ed.2d 483 quotation tion and marks administration, judicial giving re- "wise

Case Details

Case Name: Adkins v. VIM Recycling, Inc.

Court Name: Court of Appeals for the Seventh Circuit

Date Published: May 3, 2011

Citation: 644 F.3d 483

Docket Number: 10-2237

Court Abbreviation: 7th Cir.