United States District Court, S.D. Mississippi, Eastern Division
KEITH STARRETT, District Judge.
For all the reasons stated below, the Court denies Defendants' Motion to Dismiss . Within twenty-one (21) days of the entry of this opinion, Plaintiff shall file a Second Amended Complaint in which it alleges the specific Mississippi regulatory violations underlying its citizen-suit under 42 U.S.C. § 6972(a)(1)(A).
Defendant Hercules, Inc. owned and operated a plant in Hattiesburg, Mississippi for almost ninety years. During that time, Hercules conducted a variety of operations, including the production of rosins, paper chemicals, and agricultural insecticide. The facility covers 168 acres and contains offices, a laboratory, a powerhouse, a wastewater treatment plant, settling ponds, a landfill, and an impoundment basin and "sludge pits" for the disposal of industrial waste.
The facility is surrounded by residential, commercial, and industrial properties. City water and sewer lines run under, around, and adjacent to the facility, and a creek runs through it. Plaintiff, the City of Hattiesburg, alleges that Defendants knowingly and improperly disposed of hazardous industrial waste - including known or suspected carcinogens - on the facility, that the industrial waste has contaminated the soil and groundwater on and beneath the facility, and that they failed to limit and/or control the spread of industrial waste to the public easements and properties surrounding the facility. Plaintiff contends that the industrial waste contaminated soil, groundwater, and air on, beneath, and around the facility, damaging both the City and its citizens, and that it continues to spread.
Plaintiff filed this citizen-suit pursuant to Sections 6972(a)(1)(A)-(B) of the Resources Conservation and Recovery Act ("RCRA"). Plaintiff also alleged various state-law torts, and it requests a wide variety of injunctive and monetary relief. Defendants filed a motion to dismiss  the RCRA claims, and it is ripe for review.
A. Primary Jurisdiction
Defendants first argue that the Court should abstain from consideration of Plaintiff's RCRA claims under the doctrine of primary jurisdiction. This doctrine:
... applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views.
Local Union No. 189, Amalgamated Meat Cutters, & Butcher Workmen of N. Am., AFL-CIO v. Jewel Tea Co., 381 U.S. 676, 684-85, 85 S.Ct. 1596, 14 L.Ed.2d 640 (1965). The Fifth Circuit provided the following prerequisites for a district court's abstention under the doctrine of primary jurisdiction:
(1) the court has original jurisdiction over the claim before it; (2) the adjudication of that claim requires the resolution of predicate issues or the making of preliminary findings; and (3) the legislature has established a regulatory scheme whereby it has committed the resolution of those issues or the making of those findings to an administrative body.
Northwinds Abatement, Inc. v. Employers Ins. of Wausau, 69 F.3d 1304, 1311 (5th Cir. 1995). "No fixed formula exists for applying the doctrine, " but "agency referral is favored when (a) it will promote even-handed treatment and uniformity in a highly regulated area, or when sporadic action by federal courts would disrupt an agency's delicate regulatory scheme; or (b) the agency possesses expertise in a specialized area with which the courts are relatively unfamiliar." Elam v. Kan. City S. Ry. Co., 635 F.3d 796, 811 (5th Cir. 2011).
The doctrine's purpose is to promote "proper relationships between the courts and administrative agencies charged with particular regulatory duties." Nader v. Allegheny Airlines, Inc., 426 U.S. 290, 303, 96 S.Ct. 1978, 48 L.Ed.2d 643 (1976). It is particularly applicable where a case involves technical fact questions within the scope of an administrative agency's experience and expertise. Id. at 304. However, "primary jurisdiction is not a doctrine of futility; it does not require resort to an expensive and merely delaying administrative proceeding when ...