Opinion
Civil Action No. 3:94-CV-2477-H, No. 3:96-CV-1927-H, No. 3:96-CV-1929-H, No. 3:96-CV-2985-H, No. 3:96-CV-2993-H, No. 3:96-CV-3057-H, No. 3:96-CV-3092-H, No. 3:96-CV-3093-H, No. 3:96-CV-3094-H, No. 3:96-CV-3095-H, No. 3:96-CV-3096-H, No. 3:96-CV-3097-H, No. 3:96-CV-3098-H, No. 3:97-CV-0052-H, No. 3:97-CV-0055-H, No. 3:97-CV-1185-H
September 2, 2002
MEMORANDUM OPINION AND ORDER
Before the Court is the Railroads' Motion to Abate, filed August 21, 2002; and the Bergin Plaintiffs' Response thereto, filed August 28, 2002. Upon review of the pleadings, Parties' briefs, and relevant authorities, the Court is of the opinion for the reasons stated below that the Railroads' Motion to Abate should be DENIED.
I. BACKGROUND
The Railroads' Motion to Abate is filed pursuant to the Court's October 15, 2001 Revised Case Management and Scheduling Order governing the litigation of environmental claims within the celebrated In re: Voluntary Purchasing Groups, Inc. ("VPG ") litigation. Certain Plaintiffs, known as the Bergin Plaintiffs, bring a citizen suit under the Resource Conservation and Recovery Act ("RCRA") against the Railroads and ASARCO, Inc., formerly doing business as American Smelting and Refining Company. See 42 U.S.C. § 6972. The Bergins' claims involve only the Ridgeway site. They seek an injunction requiring the Railroads and ASARCO to:
The Bergins asserting RCRA claims include Betty Bergin, individually, Carolyn Bergin, and George Bergin. (5th Amend. Compl. ¶ 105).
A collective term used to refer to Southern Pacific Transportation Company, St. Louis Southwestern Railway Company, and Union Pacific Railroad Company. (5th Amend. Compl. ¶ 13).
The Plaintiffs provide that "the Ridgeway dump site is a 32.99 acre tract of land located in Ridgeway, Hopkins County, Texas onto which over 2,000,000 gallons of arsenic waste has been deposited." (5th Amend. Compl. ¶ 106).
a. Remove all the arsenic from the Ridgeway dump site and the Bergins' property, and properly dispose of it in a licensed hazardous waste disposal facility;
b. Clean-up and dispose of any existing arsenic groundwater contamination;
c. Plug and abandon the two Gafford Chapel water wells in close proximity to the Ridgeway site;
d. Provide appropriate extensions of the water pipeline from Sulphur Springs, Texas so that the amount of water lost by plugging the two Gafford Chapel wells can be purchased from Sulphur Springs;
e. Provide a permanent mechanism for paying any additional costs of the water purchased from Sulphur Springs.
(5th Amend. Compl. ¶ 116). The Plaintiffs also request any and all other relief provided by 42 U.S.C. § 6972, including attorneys' fees, expert witness fees, and other costs of litigation. (5th Amend. Compl. ¶ 118).
The Railroads request that the Court abate the Bergin Plaintiffs' suit because the claims are covered by a Consent Decree entered by the Court on August 1, 2001 in a related case filed by the State of Texas against Defendant VPG involving both the Ridgeway and Bonham sites. (Mot. at 2). Under the Consent Decree, the Railroads note that VPG was required to begin sampling at the Ridgeway site on August 26, 2002 and is required to submit an Affected Property Assessment Report by January 18, 2003. (Mot. at 2). Furthermore, the Railroads assert that in a pleading related to a previous motion, VPG stated that the Bergin Plaintiffs' claims would duplicate the testing and possible clean-up of contamination at Ridgeway as required under the Consent Decree. (Mot. at 2-3). Thus, the Railroads request that the Court abate the litigation of the Bergin Plaintiffs' RCRA claims until VPG has completed its obligations under the Consent Decree (Mot. at 5). The Bergin Plaintiffs argue, however, that the relief they seek is not addressed by the Consent Decree and their claims should proceed at this time.
II. ANALYSIS
The Railroads urge this Court to abate the Bergin Plaintiffs' RCRA claims against them pursuant to the Court's inherent power to manage its docket and to promote judicial efficiency. The U.S. Supreme Court has provided that this Court has an inherent power to manage its docket and issue a stay in one case, pending a decision in another. See Landis v. North American Co., 299 U.S. 248, 254 (1936). For example, as with most of the cases cited by the Railroads in support of an abatement, a district court will stay its own case in deference to another district court's proceedings on a first-filed and substantially related case. See Save Power Ltd. v. Syntek Finance Corp., 121 F.3d 947, 950 (5th Cir. 1997). The requested abatement, however, requires a different analysis.
An abatement "offers courts an opportunity to maintain a narrow focus on matters currently at issue, while preserving premature issues for future review if and when such issues ripen." O'Rouke v. Provident Life and Accident Insurance Co., 48 F. Supp.2d 1383, 1385 (S.D. Fla. 1999). Thus, an abatement is generally appropriate where a party's cause of action has not become ripe or to which there is some other impediment. See Speer v. Stover, 685 S.W.2d 22, 23 (Tex. 1985) ("a plea in abatement . . . would require an abatement of the claim or cause of action until some obstacle to its further prosecution was removed."); see, e.g., O'Rouke v. Provident Life and Accident Insurance Co., 48 F. Supp.2d 1383, 1384 (S.D. Fla. 1999) (abating a claim for bad faith refusal to settle pending adjudication of the allegation that an insurer breached its duties under an insurance contract, noting that the bad faith claim was premature). The Railroads, however, do not assert that there is any impediment to the Plaintiffs' prosecution of the RCRA claims. The Railroads only argue that the State of Texas' suit sought the same relief as the Bergin Plaintiffs seek here.
A case or controversy exists if there is a "real or immediate" injury or threat of injury. See O'Shea v. Littleton, 414 U.S. 488, 494 (1974). The Bergin Plaintiffs allege that "substantial quantities of arsenic . . . were transported to, buried, and otherwise deposited at the Ridgeway dump site." (5th Amend. Compl. ¶ 107). The Bergin Plaintiffs further assert that the arsenic has migrated from the dump site onto their property and continues to do so. (5th Amend. Compl. ¶ 107-08). Lastly, the Plaintiffs allege that the arsenic has entered the Gafford Chapel Water Supply Corporation's distribution system and has contaminated the water supply. (5th Amend. Compl. ¶ 109-10). Section 7002 of RCRA authorizes citizen suits to be brought against an appropriate Defendant "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." 42 U.S.C. § 6972(a)(1)(B). In addition, the statute provides for specific situations in which a private suit would be barred when there is State involvement, but the Railroads do not raise any of these defenses. See 42 U.S.C. § 6972(b)(2)(C).
The Bergin Plaintiffs argue that because VPG is not specifically required to remediate the Ridgeway site, and because they seek more specific relief in their Fifth Amended Complaint, their suit is not redundant of the relief already authorized by this Court. The Court agrees. The United States District Court for the District of New Jersey addressed a similar situation in Interfaith Community Organization, et al. v. AlliedSignal, Inc., et at., 928 F. Supp. 1339 (D.N.J. 1996). In AlliedSignal, the Court addressed whether Plaintiffs' RCRA claims should proceed where a Consent Decree required one of the Defendants to remediate 18 properties, but only to the extent that an allocated remediation sum would permit. See id. at 1349. Thus, the Plaintiffs argued that if the sum was depleted under the Consent Decree, but contamination remained, AlliedSignal would have no contractual obligation to complete remediation and thus, the other Defendants, if found liable, should complete the process. See id.
The Consent Decree in our case provides that VPG will "if necessary, undertake appropriate remedial and/or corrective action at the Old Bonham, New Bonham, and Ridgeway Sites." Consent Decree, filed August 1, 2002, ¶ 4.1. This provision is substantially more general than the relief sought by the Bergin Plaintiffs. For instance, the Bergin Plaintiffs request the abandonment of a contaminated well, and pipeline extensions to other sources to make up for the loss of the well. Although it is possible that VPG will determine that it is appropriate to remediate the property is such a way as to satisfy the relief sought by the Bergin Plaintiffs, it is premature to make such an assumption at this time. The Court finds that the Bergin Plaintiffs claims are ripe for adjudication and given that there is no impediment to their prosecution, an abatement is inappropriate. The bifurcated nature of the litigation of the environmental claims will permit a determination of the extent and substance of any injunctive relief at a later date, if the Railroads are found liable. As the New Jersey Court noted, proceeding with the claims at this time does not preclude the Defendant from later raising the issue of mootness. See AlliedSignal, 928 F. Supp. at 1349 n. 8.
III. CONCLUSION
For the reasons stated above, the Railroads' Motion to Abate is DENIED.
SO ORDERED.