A federal court in Alaska has refused to abstain from a RCRA citizen suit under the primary jurisdiction doctrine where the pleadings allege that the state environmental agency has not been diligent in enforcing its compliance order against the defendant. Sears, Roebuck & Co. v. Williams Express, Inc., No. 10-221 (D. Alaska 6/8/11).

Defendants manage a facility that was formerly a service station located near a distribution center operated by plaintiff. In 1991, the previous service station operators entered a consent decree with the Alaska Department of Environmental Conservation (ADEC) to remediate soil and groundwater contamination on the property. Defendants installed a pump-and-treat system and a vaporextraction system to address the contamination in the early 1990s, but both systems allegedly failed and were shut down in 2007.

In 2010, plaintiff filed a RCRA citizen suit alleging that the contamination exceeds state cleanup criteria and has migrated from the property, potentially threatening human health and the environment. Defendants moved to dismiss, alleging that plaintiff failed to allege sufficient facts that support a claim of “imminent and substantial endangerment,” and alternatively, that the court should abstain, under the primary jurisdiction doctrine, because hearing the RCRA claim would require the resolution of issues within ADEC’s special competence.

The court rejected both arguments, the first on the ground that evidence of “imminent and substantial endangerment” may be submitted later in the case and, at this point, the court is evaluating allegations, not evidence. As to the second argument, the court held that where, as here, the pleadings allege that ADEC has not diligently enforced the terms of its compliance order, the court will decline to apply the doctrine of primary jurisdiction.