Francisco Sanchez v. Esso Standard Oil Co.Francisco Sanchez v. Esso Standard Oil Co.
This interlocutory appeal requires us to assess the validity of a preliminary injunction order entered pursuant to the federal Resource Conservation and Recovery Act (RCRA),
Shortly after filing their complaint, plaintiffs sought a preliminary injunction that would order Esso to immediately comply with various environmental regulations, investigate the extent of the contamination, and implеment remedial measures to clean up the site and prevent any further contamination. After a two-day hearing, the district court granted plaintiffs’ motion, entering a preliminary injunction and issuing a supporting opinion that contained a number of factual findings and legal conclusions. The order itself set forth a process for the completion of a comprehensive site assessment “before the court further order[ed] Esso to remediate soil and groundwater contamination at the site.” The order “enjoined and restrained” Esso “from contributing by action or inaction to further environmental contamination at the site,” and stating that “Esso will be ordered, depending on the results of the Comprehensive Site Assessment, to pay for all necessary testing, corrective actions, and removal of all pollution and contamination within the site and into adjacent areas.”
Esso now challenges this order. Besides two threshold jurisdictional challenges that we reject, Esso argues primarily that the preliminary injunction is invalid because it demonstrates that “liability has been summarily determined without discovery [and] without the benefit of a trial on the merits.” Because we agree with that contention, we vacate the order to the extent that it represents an imрroper adjudication of the merits of the dispute. However, we leave intact the provisions concerning an environmental assessment of the allegedly contaminated site.
I.
A. Factual and Procedural Background
Plaintiff Jorge Francisco Sánchez and his family have operated Dolores Service Station and Auto Parts, Inc. in Canóvanas, Puerto Rico since the early 1960s. In or around 1985,
1
Esso replaced Shell Oil as the station’s gasoline and diesel fuel supplier and also purchased three USTs — two
On October 6, 2008, plaintiffs sued Esso in the United States District Court for the District of Puerto Rico, alleging,
inter alia,
violations of the Solid Waste Disposal Act, as amended by RCRA,
The district court issued its Preliminary Injunction Findings and Order on December 5. Crucially, the court found that the site underneath the Dolores Service Station had been contaminated with various petroleum-related substances, including Total Petroleum Hydrocarbon (TPH) and benzene, and potentially lead, for over a decade. The court concluded that Esso had known about this contamination since at least 1993, but had failed to investigate, report, or remediate the pollution. Accordingly, Esso appeared to be “in continuous violation” of federal and Commonwealth regulations.
The injunction order required the parties to submit recommendations for companies that could pеrform a comprehensive site assessment to determine the nature and scope of the soil and groundwater contamination originating from petroleum products dispensed at the service station during Esso’s ownership of the tanks. The court then scheduled a hearing to “consider the implementation” of the environmental testing, and required the parties to promptly “jointly notify the EQB and the EPA” about the issuance of the injunction. Finally, the court enjoined Esso from contributing “by action or inaction” to further contamination at the site, and stated that “depending on the results” of the testing, that “Esso will be ordered ... to pay” for all of the necessary testing and remediation. The district court subsequently denied Esso’s motion for reconsideration, its request that the court require plaintiffs to post a bond for the estimated $75,000 cost of the Comprehensive Site Assessment, and its motion to stay enforcement of the injunction pending this appeal.
B. Esso’s Appeal
After losing below, Esso filed with this court an “emergency” motion to stay the
We denied Esso’s rеquest for a stay to the extent that it pertained to “the completion of a comprehensive site assessment and the completion of a remedial plan.” However, we granted the request “to the extent the district court order can be read to require defendant to undertake any remedial measures in advance of the preparation of a remedial plan, except as may become necessary to remedy any emergent threat to human health or safety.” We also directed the parties to confer and determine whether this appeal should be expedited.
After we issued this order, the district court entered the following Notice:
Regarding the Order by the Court of Appeals dated March 16, 2009, in Case No. 09-1211, this court states that, consistent with the Court of Appeals’ Statement, it was never our intention to require Defendant to undertake any remedial measures in advance of the preparation of a remedial plan, except as may become necessary to remedy any emergent threat to human health or safety.
We strongly recommend that the appeal on the preliminary injunction be handled on an expedited basis as suggested by the Court of Appeals.
Despite this notice, the district court never amended the preliminary injunction itself.
On the parties’ motion, this appeal was expedited. Meanwhile, the comprehensive site assessment has been completed and, as of the time of oral argument on May 6, 2009, the parties were awaiting the reports that would reveal the nature and extent of any potential contamination at the site. Aside from the site assessment, however, it appears that discovery in the district court has been stayed pending this appeal. After Esso contacted plaintiffs to schedule a discovery conference pursuant to
II.
A. Statutory and Regulatory Background
Subchapter IX of RCRA regulates USTs.
The EQB’s rules, like the federal UST regulations, are designed to prevent and detect releases from USTs, and correct the problems created by those releases. See Environmental Protection Agency, “Musts For USTs: A Summary Of Federal Regulations For Underground Storage Tank Systems,” EPA 510-K-95-002 (July 1995), available at http://www.epa.gov/OUST/ pubs/musts.pdf (last visited June 15, 2009). They impose a strict regime of monitoring, reporting, and remediation requirements, many of which are at issue in this litigation.
B. Citizen Suits Under RCRA
A common tool in federal environmental law, a citizen suit is “[a]n action under a statute giving citizens the right to sue violators of the law ... and to seek injunctive relief and penalties.”
Black’s Law Dictionary
261, (8th ed.2004). “Typically, citizen suits, where they exist, function as a form of statutory enforcement in addition to, or in conjunction with, enforcement by an administrative agency or other governmental entity.”
Esso Std. Oil Co. (Puerto Rico) v. Rodríguez-Pérez,
(a)(1)(A) against any person ... who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has
become effective pursuant to this chapter; or
(B) against any person ... including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment
(emphasis added). Thus, a suit pursuant to subsection (a)(1)(A) must be based on an ongoing violation, whereas a suit under (a)(1)(B) may be predicated on a past violation which presents an “imminent and substantial endangerment to health or the environment.”
Id.; see also Meghrig v. RFC Western, Inc.,
enforce the permit, standard, regulation, condition, requirement, prohibition, or order, referred to in paragraph (1)(A), to restrain any person who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste referred to in paragraph (1)(B), to order such person to take such other action as may be necessary, ... and to apply any appropriate civil penalties....
There are limitations on citizen suits under RCRA. First, citizen suits are subject to certain notice requirements.
III.
Esso raises a number of challenges to the district court’s preliminary injunction order. As a threshold matter, Esso raises several arguments which, if accepted, would divest us of jurisdiction over this appeal. Esso first claims that plaintiffs’
Plaintiffs dispute Esso’s jurisdictional challenges to their suit. They claim that because benzene, which they characterize as a known contaminant at the service station, is a “hazardous substance,” the ninety-day requirement of
If we conclude that we do have jurisdiction over this appeal, Esso’s most fundamental concern is not that it has been ordered to pay for the comprehensive site assessment, but rаther its perception that its “liability has been summarily determined without discovery, without the benefit of a trial on the merits, and without the protection of a bond.” Indeed, in its reply brief, Esso essentially admits that it likely would not have appealed if the injunction had been limited to ordering the comprehensive site assessment.
Pursuing this theme, Esso draws upon not only the language of the opinion and order itself, but also on the court’s comments in subsequent rulings, to support the contention that the court essentially resolved the liability issue against Esso in the guise of a preliminary injunction. Esso also argues that the injunction is defective because the court refused to make findings in support of each element of injunctive relief as required by
Plaintiffs argue that the two-day hearing in the district court was adequate and provided a sufficient basis for the district court’s order and injunction. Indeed, they argue on appeal, as they did in certain district court filings, that “[t]he record is clear that a trial on the merits was held.” They characterize Esso’s “allegation that a trial on the merits was not held and is not forthcoming” as “simply misleading.” They add that “[a] hearing on the merits was conducted, the investigation of the contamination at the site has been completed. From the record in this case, it is сlear that Esso’s USTs originated the contamination. Therefore, injunctive relief is proper as issued.” 3
We first consider Esso’s notice and preclusion arguments. Accepting either of them would divest us of jurisdiction.
See, e.g., Garcia v. Cecos Int’l, Inc.,
A. Notice
On July 24, 2008, the plaintiffs notified Esso, the EPA, the EQB, and the state and federal Attorneys General, that they intended to file a lawsuit pursuant to
As a preliminary matter, we note that Esso did not present this notice argument to the district court in its opposition to plaintiffs’ motion for preliminary injunctive relief. However, because it relates to subject matter jurisdiction, Esso’s failure to present the notice argument to the district court is ultimately irrelevant, as we have an obligation to inquire into our own jurisdiction sua sponte.
In re Olympic Mills Corp.,
In its injunction findings, the district court merely stated, without further explanation, that “[n]otiee requirements have been met under
B. The Diligent Prosecution Bar
1. General Principles
Citizen suits under RCRA were meant to “supplement rather than to sup
We have never elaborated analytical principles for determining whether a civil action filed by a state under RCRA is sufficiently similar to a subsequent citizen suit so as to preclude it. Other courts, however, have confronted this or similar questions. Studying these precedents, one author has concluded that “most, but not all,” of those courts have held that:
For the government action to bar a citizen suit, the government action must seek “to require compliance with the standard, limitation, or order” ... [that]
the citizen alleges is violated----On its face, a government action bars citizen suits only for violations they seek to enforce in common .... [B]y specifying that the government action precludes a citizen suit only for the violations of the standard, limitation or order that they both allege and seek to abate, the provision implies that the government action does not preclude a citizen suit against other violations. That result is consistent with the policy of the provision; the notice and the delay period were intended to enable the government to have an opportunity to enforce against the violations of the standard, limitation or order alleged by the citizen, unencumbered by a citizen suit. Where the government has enforced against some, but not all of such violations alleged by the citizen, it has foregone its opportunity to foreclose the citizen from' enforcing against the violations the government chose to ignore.
Jeffrey G. Miller, Theme mid Variations in Statutory Preclusions Against Successive Environmental Enforcement Actions by EPA and Citizens: Part One: Statutory Bars in Citizen Suit Provisions, 28 Harv. Env. L.Rev. 401, 473-74 (2004) (footnotes omitted) (emphasis omitted). We apply this insight here.
2. Esso’s Claim
On June 12, 2007, the Commonwealth filed suit in the United States District Court for the District of Puerto Rico against various gasoline refiners and distributors, owners and operators of gasoline retail stations, and manufacturers of the gasoline additive methyl tertiary butyl ether (MTBE). The complaint alleges large-scale MTBE contamination of the “waters of the Commonwealth,” which it defines as “all Class SGI ground waters and all Class SD surface waters located on
The majority of the factual allegations in the complaint involve the defendants’ liability for the use of MTBE as a gasoline additive; indeed, the complaint notes that MTBE contaminаtion was likely to result from “the normal and foreseeable storage, purchase, and use of gasoline within the Commonwealth.” The Commonwealth avers that, in addition to producing gasoline containing MTBE, the defendants also knowingly promoted, ■ marketed, and sold such gasoline in the Commonwealth despite their awareness that MTBE, a hazardous substance, would be released into the waters of the Commonwealth. The complaint seeks to recover damages to “fund the identification and treatment of MTBE contaminated waters used for public and private drinking water” and cover the costs of restoring those waters to their pre-discharge condition, as well as general “compensation for injuries to the waters of the Commonwealth.” Additionally, the Commonwealth requests' injunctive relief compelling defendants to investigate and remediate existing contamination and to prevent “further releases from their leaking underground storage tanks.”
The Commonwealth’s RCRA claim specifically alleges violations of Rule 1102(A) and (B) of the Puerto Rico USTCR on the part of the “Owner/Operator Defendants,” which the complaint defines as those defendants who “owned or operated gasoline service stations and/or underground storage tanks that hаve discharged gasoline containing MTBE.” The claim seeks an order “enforcing the Puerto Rico Underground Storage Tank regulations” that would compel defendants to “investigate and repair and/or properly close all storage tanks ... which are leaking or pose a significant risk of leaking to ensure they do not leak MTBE or MTBE-containing substances into the Commonwealth’s soils, waters, and other natural resources,” and to “investigate, delineate, and remediate all soils, waters, and other natural resources impacted by MTBE originating from leading [USTs] ... so as to remove all detectable concentrations of MTBE.”
On October 4, 2007, Esso was added as a defendant in the Commonwealth action. However, the complaint categorizes Esso as a “refiner/supplier” defendant; i.e., as a party that “refined, marketed, and/or otherwise supplied ... gasoline and/or other products containing MTBE that [it] knew or should have known would be delivered into the Commonwealth.” The Commonwealth does not allege that Esso is an owner or operator of a service station or UST.
The problem of MTBE contamination is not limited to the Commonwealth; indeed, the problem has a national scope:
MTBE is at the center of hundreds of lawsuits involving standard toxic tort issues-^-product liability claims involving personal injury, nuisance and trespass actions alleging property devaluation, and putative class actions seeking medical monitoring and emotional distress. While defendants in these suits usually represent a small set of producers and distributors of MBTE, plaintiffs include states, municipalities, and individuals. Today, MTBE litigation is a cottage industry of its own, with a specialized bar and a small circle of experts.
While Esso is correct that there may be some overlap between the Commonwealth’s suit and the case at bar, we find this overlap insufficient to divest us of jurisdiction over this case. First, comparing the RCRA claims only, the two complaints involve different contaminants (MTBE as opposed to benzene and other petroleum-related hydrocarbons), a distinction which other cases have found significant.
See, e.g., A-C Reorganization Trust v. E.I. DuPont de Nemours & Co.,
Moreover, in its complaint in the SDNY, the Commonwealth even explains that “the fate and transport of MTBE in the subsurface differs significantly from that of gasoline constituents that have historically been of environmental and/or toxicological concern, specifically the ‘BTEX compounds’ (benzene, toluene, ethylbenzene, and xylene),” compounds which are the subject of plaintiffs’ complaint. This difference means that, even though both compounds are components of gasoline, the areas affected by MTBE and BTEX contamination could potentially be different and/or require different remedial measures in case of a leak from a UST. Additionally, it is not evident from the face of the Commonwealth’s complaint that MTBE is a common diesel additive, whereas some of the allegations in the case at bar involve contamination resulting from an allegedly leaking diesel tank.
The two complaints also allege distinct violations of Puerto Rico’s USTCR. The complaint in this action alleges violations of Rules 501, 503, 601, 602(A), (B), 603(A), 604(A), (C), and 606(A)(1)(3). In contrast, the Commonwealth accuses “all defendants with regulated facilities in the Commonwealth” of violating Rule 1102(A), (B), and (D). Aside from the difference in the specific rules that the two complaints seek to enforce, the Commonwealth’s RCRA action expressly implicates Esso in a different capacity than the instant action. The MTBE litigation names Esso as a “refiner/supplier” defendant that “refined, marketed, and/or otherwise supplied ... gasoline and/or other products containing
Furthermore, there is a question of scope. The Commonwealth’s suit is intended to protect the “waters of the Commonwealth” generally, and seeks significant compensation for damage that MTBE has inflicted upon those waters. In this case, we are dealing with the potential contamination and clean-up of one particular property, which may or may not be affected by MTBE contamination. In our view, a suit against dozens of defendants seeking to remedy the harm caused throughout the Commonwealth by one contaminant is notably different than an action asking one particular defendant to clean up a number of different contaminants on a single private property.
Finally, we are not persuaded by Esso’s reference to potentially overlapping remedial obligations. Esso argues that plaintiffs’ suit is barred in part because the abatement of the MTBE contamination alleged in the Commonwealth action would “necessarily abate other gasoline constituents leaked into the same soil or groundwater.” However, it is not apparent from the pleadings in the two cases that the remedial measures for the various types of contamination are consistent; indeed, the SDNY complaint specifically alleges a difference in the nature of MTBE pollution and the pollution of other gasoline constituents.
If, however, the remedy is identical, then whichever action is resolved first will obviate the need for the performance of that remedy in the other action. Given the magnitude of the MTBE litigation, it is almost certain that this case, which concerns only one site and is proceeding on an expedited basis, will reach the remedy stage first, perhaps even before the massive discovery is completed in the MDL. Any potential clean-up that the court may require in this case will either 1) remove the gasoline contamination generally from the affected site, and therefore any MTBE that it may have contained, or 2) remove or remediate only the pollutants at issue in this litigation. In the first case, the Dolores Service Station will simply be one less site for Esso to remediate in the MTBE litigation; in the second, it will need to do the same kind of remediation with respect to the MTBE that it would have in the absence of this citizen suit. Therefore, the Commonwealth’s continued prosecution of the SDNY action would not represent a waste of enforcement resources or a duplication of efforts, which is what Congress was trying to avoid with the preclusion provisions. Alternatively, in the event that the remedies somehow conflict, the parties are free to seek modification of the relevant injunction; there is no need, at this stage, to “short circuit” this suit on jurisdictional grounds.
See, e.g., Me. People’s Alliance v. Holtrachem Mfg. Co., LLC,
No. CIV-00-69-B-C,
V.
A. Standard of Review and Preliminary Injunction Law
We review the grant of a motion for a preliminary injunction for abuse of discretion.
Boston Duck Tours, LP v. Super Duck Tours, LLC,
A preliminary injunction “is traditionally viewed as relief of an extraordinary nature and does not purport to be a disposition of the matter on its merits.”
United States v. School Dist. of Omaha,
first, the likelihood that the party requesting the injunction will succeed on the merits; sеcond, the potential for irreparable harm if the injunction is denied; third, the hardship to the nonmovant if enjoined compared to the hardship to the movant if injunctive relief is denied; and fourth, the effect of the court’s ruling on the public interest.
Water Keeper Alliance v. U.S. Dept, of Defense,
A court granting a preliminary injunction must set forth the findings of fact and conclusions of law supporting its issuance.
When a trial court “disposes of a case on the merits after a preliminary-injunction hearing without expressly ordering consolidation ... it is likely that one or more of the parties will not present their entire case at an unconsolidated preliminary-injunction hearing.” Id. Therefore, it is ordinarily improper to decide a case solely on such a basis. As the Second Circuit wrote:
The judge’s legal conclusiоns, like his fact-findings, are subject to change after a full hearing and the opportunity for more mature deliberation. For a preliminary injunction — as indicated by the numerous more or less synonymous adjectives used to label it — is, by its very nature, interlocutory, tentative, provisional, ad interim, impermanent, mutable, not fixed or final or conclusive, characterized by its as-for-the-time-beingness. It serves as an equitable policing measure to prevent the parties from harming one another during the litigation; to keep the parties, while the suit goes on, as far as possible in the respective positions they occupied when the suit began.
Hamilton Watch Co. v. Benrus Watch Co.,
The district court here was not mindful of the limitations of a preliminary injunction proceeding. A review of the record reveals that the district court impermissibly prejudged the merits of the case at the preliminary injunction stage and, having reached a conclusion as to liability, determined that it was unnecessary to do the full preliminary injunction analysis. This conclusion flows inevitably from the distriсt court’s explanation of its preliminary injunction order and its statements in the post-injunction proceedings.
1. The Injunction Opinion and Order
The court began by reciting a number of factual findings. It found that Esso had, until October of 2008, “operated” the service station 6 and owned one diesel and two gasoline USTs, as well as related pumps, pipelines, and servicing equipment, on the property. In 1992, Esso replaced the existing steel diesel UST with a fiberglass tank, as it did for the two steel gasoline tanks in 1998. In connection with the 1998 replacement of the gasoline USTs, Esso also removed some of the soil surrounding the tanks. The district court expressed concern that lead contamination had potentially occurred during this 1998 tank replacement, finding that the steel tanks had held leaded gasoline for many years before unleaded gasoline became available in 1988. The court stated that Esso’s excavation and disposition of the soil and its failure to acknowledge the possibility that the soil was contaminated reflected “willful blindness” indicative of a potential RCRA violation.
Besides the potential for lead contamination, the district court also found that “the service station facility and equipment discharged hazardous petroleum-related products and discarded hazardous waste and related contaminants” into the surrounding soils and groundwater. The court concluded that Esso had known about the contamination since at least 1993. 7
The court then observed that in November 2001, Esso hired Environmental Resource Technologies (ERTEC) to perform a subsoils evaluation of the site, the results of which became available in November 2003. The report found levels of Total Petroleum Hydrocarbon (TPH) of 3,290 mg/kg in the soil above the groundwater surrounding the diesel tank, which exceeded the acceptable 100 mg/kg limit set by EQB. The report further recommended that the diesel tank and pipeline be tested in accordance with EQB regulations, a test which, the court found, was never performed.
In September 2006, Esso again hired ERTEC, this time to perform an assess
According to the district court, a review of the EQB UST Program File for the Dolores Service Station confirmed that Esso had never reported the contamination documented in the Phase II report to the EQB, and this “non-reporting” likely explained why the station was not listed in the EQB’s Leaking Underground Storage Tank facility list. The court determined that Esso had never conducted the tests required to investigate the extent of the petroleum-related contamination or performed an “organic lead analysis” on the property. For this reason, the court concluded that Esso had “distanced itself from its duty to confront the contaminated status of the property and ha[d] only taken bland mitigation measures, without committing itself to removing the contamination as required.” In sum, the court stated that Esso “appealed] to be in continuous violation[ ]” of EQB rules and their federal counterparts, and that Esso’s “derelict” conduct bordered on “egregious,” reflecting a goal to “hopefully duck legal responsibility or have оthers, such as the Plaintiffs or another incoming petroleum company, deal with the problem generated by Esso’s actions.” It noted that the “costs associated with pre-cleanup studies and actual cleanup can reach astronomical monetary figures, and Esso must bear responsibility as required by law.” After making these factual and legal findings, the district court explicitly stated that it saw “no need to make a boilerplate exposition of irreparable harm and injunction law, because it is patently clear that this case fit[ ] the most restrictive measure for that remedy.”
The actual order itself directed the parties to submit recommendations for companies that could perform a comprehensive site assessment “before the court further orders Esso to remediate soil and groundwater contamination at the site originating from ... petroleum-based products dispensed” at the service station between 1982 and October 31, 2008. 10 The court then scheduled a hearing to “consider the implementation” of the comprehensive site assessment “at Esso’s expense.” The order concluded by declaring:
In addition, and subject to the results of the scheduled ... hearing, Esso is notonly enjoined and restrained from contributing by action оr inaction to further environmental contamination at the site, but Esso will be ordered, depending on the results of the Comprehensive Site Assessment, to pay for all necessary testing, corrective actions, and removal of all pollution and contamination within the site and into adjacent areas as previously described.
2. PosD-Injunction Proceedings
On December 19, 2008, Esso moved for reconsideration of the preliminary injunction order pursuant to
Also at the December 22 hearing, the district court selected a site assessment team made up of court-approved experts from both sides and ordered that the bills for the work performed be submitted to the court for payment by Esso. Carlos Alvarez, an expert hired by plaintiffs to assist with the site assessment, estimated that the assessment would cost between $50,000 and $75,000, which was consistent with the $75,000 estimate offered by Jose Hernandez, Esso’s expert. The court entered a scheduling order indicating that it would meet with counsel and the experts to discuss the comprehensive site assessment on January 15, 2009.
On January 14, 2009, the day before the first status conference, Esso asked the court to require plaintiffs, pursuant to
The district court also denied, on similar grounds, Esso’s January 30, 2009 request to stay enforcement of the preliminary injunction pending this interlocutory appeal. The court repeated its conclusion that Esso had violated federal environmental regulations, listing six actions that Esso had “failed” to take in contravention of
3. Analysis
We acknowledge that the district court used somе qualifying language in its various opinions. It occasionally described Esso’s conduct as “apparent” violations, stated that the injunction hearing had yielded a “limited” record, and characterized the nature of the relief it awarded as “preliminary.” Additionally, as we have mentioned, in response to our ruling on Esso’s emergency Motion to Stay, the district court issued a Notice stating that it was never its intention “to require Defendant to undertake any remedial measures in advance of the preparation of a remedial plan, except as may become necessary to remedy any emergent threat to human health or safety.” Nevertheless, the court failed to amend the injunction order itself, which remained intact, and the court’s nominal references to the preliminary nature of the proceedings do not undermine the overwhehning impression, conveyed by the portions of the record quoted above, that the court has already conclusively resolved the liability issue against Esso. The result was a “de facto” consolidation, without notice, which we cannot condone.
See, e.g., T.M.T. Trailer Ferry, Inc. v. Union De Tronquistas De P.R., Local 901,
The evidence of the court’s conclusive determination of liability is inescapable. In addition to the language used in its findings and the order itself, the district court explicitly refused to consider the other factors of the preliminary injunction analysis, stating that it saw “no need to make a boilerplate exposition of irreparable harm and injunction law” because it was “patently clear” that injunctive relief was warranted in this case. The district court’s refusal to address these other factors, in contravention of the requirements of
That same conclusive determination of liability pervades the court’s denial of Esso’s request for a bond:
The comprehensive site assessment that has been ordered is the only way in which the court will be able to determine the extent of Esso’s liability, and the cost of such studies cannot serve as a basis for a claim of probable loss or monetary loss to Esso. No material damage to Esso will result from this litigation, where the only issue seems to be the extent of the liability.
Here again the court announces that Esso’s liability for the pollution at issue, whatever its scale, has been decided in the preliminary injunction proceedings.
As we have described, the purpose of a preliminary injunction is to preserve the status quo
before
the merits have been resolved. Certainly, the traditional four-part inquiry requires that a court make some assessment of the plaintiffs’ likelihood of success on the merits. But these assessments should only aid the court in deciding whether some type of interim relief is necessary. Ultimate findings of liability “should be made only after all par
VI.
Although we conclude that the preliminary injunction order is defective for the reasons enumerated above, we find one aspect of the injunction — ordering the comprehensive site assessment — to be both proper and commendable.
We have stated that RCRA is a “cradle-to-grave statute providing a full range of remedies designed to protect both health and the environment.”
United States v. Borowski,
This broad scope means that a private citizen may seek “a mandatory injunction,
i.e.,
one that orders a responsible party to ‘take action’ by attending to the cleanup and proper disposal of toxic waste, or a prohibitory injunction,
i.e.,
one that ‘restrains’ a responsible party from further violating RCRA.”
Meghrig,
As a result of the court order in this case, there has already been extensive testing of the soil and groundwater surrounding the Dolores Service Station. Almost immediately after issuing the injunction, the district court selected a team of experts approved by the litigants to conduct an exhaustive analysis that would determine the nature and extent of any contamination in the area. According to a report filed in the district court on May 17, 2009, and consistent with the parties’ representations at oral argument, extensive samрling data has already been provided to approved chemists for analysis, validation, and certification. Final sampling was scheduled to take place in the second half of May, and the parties are working on a final report for the court. The results of this study will benefit not only the parties and the court as this litigation proceeds, but also the public. Indeed, Esso itself is candid in its reply brief that “if the court-ordered study were really the extent of the court’s injunction, this would be a different, and probably nonexistent, appeal.” Counsel for Esso expressed a similar sentiment at oral argument.
We applaud the court for taking this sensible step. We understand the court’s legitimate concerns about the possibility of extensive environmental contamination and its health effects.
See Amoco Prod. Co. v. Village of Gambell,
Accordingly, we must vacate provision 5 of the preliminary injunction order of the district court because it reflects an improper adjudication of the merits of the dispute.
15
However, we affirm the district
Because we are affirming the portion of the order that requires Esso to pay money, and because the district court’s prior decision to deny Esso’s request for a bond was based on its premature adjudication of liability, we also instruct the district court to reconsider Esso’s request for a bond based on the requirements of Federal
Affirmed in part, vacated in part, and remanded for further proceedings consistent with this opinion. Each party shall bear its own costs.
Notes
. The record contains contradictory information regarding when exactly Esso purchased the USTs and began supplying the station; the parties' briefs on appeal state that this occurred in 1985 and the complaint alleges a date of 1984, but the district court found that the sale took place in 1982. Ultimately, however, this discrepancy is irrelevant to this appeal.
. At the injunction hearing, counsel for Esso informed the court that the contract between Esso and Total Petroleum contains provisions regarding the assignment of liability for preexisting contamination. This document, however, is irrelevant for our purposes. While Esso denies its responsibility for any alleged contamination at the site, it does not claim that it is an inappropriate defendant.
. In the alternative, plaintiffs contend that by presenting “undisputed” evidence of contami
. In their brief, plaintiffs raise an alternative argument for why the SDNY action does not preclude this citizen suit. They contend that, because the Commonwealth's pre-litigation notice in the SDNY litigation fails to allege a RCRA violation, that claim is improperly asserted and therefore may not preclude this suit. In light of our holding above, we need not reach this argument.
.
See also Indus. Bank of Wash. v. Tobriner,
. This seems to be an error on the part of the district court. While Esso supplied the station's рetroleum-related products and was a UST operator for the purposes of the applicable environmental regulations, it is undisputed that the Sánchez family, and not Esso, was the service station operator.
. To support this conclusion, the court cites, but does not discuss "Plaintiffs’ Exhibit One." Exhibit One, introduced at the injunction hearing, is the report of plaintiffs' expert, Carlos Belgodere. The report states that "The soils and groundwater monitoring data ... indicate that Esso knew of soil and groundwater contamination below the facility UST's [sic] as early as April 23, 1993.” This conclusion, in turn, appears to be based on a table in a report that was created for Esso during the 1998 tank change process. The table contains monthly data from three monitoring wells that Esso had installed on the property in 1993. Neither the expert report, nor the court's opinion, explains how these figures demonstrate Esso’s knowledge of contamination, or the kind of contamination involved.
. The court’s actual finding with respect to benzene was expressed in the present tense. It stated that the Phase II evaluation "revealed that the groundwater below the Esso Dolores Service Station is contaminated with the gasoline constituent benzene” (emphasis added).
.
See, e.g.,
Safe Drinking Water Act,
. The court noted that ERTEC, Esso’s contractor, might be disqualified from performing such an assessment. No party has challenged on appeal the district court’s disqualification of ERTEC, and we take no position on the matter, leaving it to the district court's discretion.
.
See, e.g., H & W Indus., Inc. v. Formosa Plastics Corp., USA,
. Although we have decided to vacate portions of the preliminary injunction order, we note that any admissible evidence that the district court received on the preliminary injunction motion has already become a part of the trial record and need not be repeated at trial. See Fed.RXiv.P. 65(a)(2).
. Of course, the district court also has the power to enforce any permit, standard, regulation, condition, requirement, prohibition, or order referred to in subsection (a)(1)(A), and the plaintiffs may continue to seek such enforcement.
. See also Subcommittee on Oversight and Investigation of The H. Comm, on Interstate and Foreign Commerce, 96th Cong, Report on Hazardous Waste Disposal 32 (Comm. Print 1979)(noting that this provision was intended to confer "overriding authority to respond to situations involving a substantial endangerment to health or the environment”).
.
See, e.g., Otis Elevator Co. v. Int’l Union of Elevator Constructors, Local 4,
.
See