Residents of Gordon Plaza, Inc. v. LaToya Cantrell, in Her Official Capacity as Mayor of the City of New Orleans, Louisiana, et al.
The Fifth Circuit ruled that homeowners on a toxic landfill are precluded from suing under the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6972, to protect their health and property, due to a liable party's minimal operation and maintenance activities, such as mowing vegetation, performed pursuant to a 2008 consent decree under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601-75.
RCRA precludes citizen abatement actions when "a responsible party is diligently conducting a removal action" pursuant to a consent decree. 42 U.S.C. § 6972(b)(2)(B)(iv). The Fifth Circuit interpreted "removal action" to include New Orleans' minimal long-term operation and maintenance activities, effectively foreclosing homeowners' ability to seek abatement of ongoing risks—decades after EPA declared all response complete. See National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List, 69 Fed. Reg. 47068, 47071 (Aug. 4, 2004). Response actions include removal actions, which are "short-term cleanup" measures, and remedial actions, which are "measures to achieve a 'permanent remedy.'" Exxon Corp. v. Hunt, 475 U.S. 355, 360 (1986) (citing 42 U.S.C. §§ 9601(23), (24)). Once those activities are complete, CERCLA provides for "operation and maintenance." 42 U.S.C. § 9604(c)(6).
Whether a liable party's operation and maintenance activities pursuant to an EPA consent decree constitute "conducting a removal action" so as to bar a citizen suit to abate an imminent and substantial endangerment under 42 U.S.C. § 6972 after EPA has declared all response actions under the Comprehensive Environmental Response, Compensation and Liability Act to be complete.
Whether a liable party's operation and maintenance activities pursuant to an EPA consent decree constitute 'conducting a removal action' so as to bar a citizen suit to abate an imminent and substantial endangerment under 42 U.S.C. § 6972 after EPA has declared all response actions under the Comprehensive Environmental Response, Compensation and Liability Act to be complete