Francisco Sanchez v. Esso Standard Oil Co.

United States Court of Appeals
For the First Circuit

No. 09-1211

JORGE FRANCISCO SÁNCHEZ;
DOLORES SERVICE STATION AND AUTO PARTS, INC.,

Plaintiffs, Appellees,

v.

ESSO STANDARD OIL COMPANY (PUERTO RICO),

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. José A. Fusté, U.S. District Judge]

Before

Lipez, Hansen,* and Howard,
Circuit Judges.

Tynan Buthod, with whom Scott Janoe, Karlene Poll, Baker Botts
LLP, Carla Garcia-Benitez, and O'Neill & Borges were on brief, for
appellant.
Orlando Cabrera-Rodriguez for appellees.

June 19, 2009

*
Of the Eighth Circuit, sitting by designation
 LIPEZ, Circuit Judge. 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), 42 U.S.C. §§ 6901-6992k. Invoking RCRA's citizen-suit

provision, which allows private plaintiffs to bring suit to enforce

the Act's requirements, Dolores Service Station and Auto Parts,

Inc., and its operator, Jorge Francisco Sánchez, sued Esso Standard

Oil Company (Esso) in federal district court in Puerto Rico. For

over two decades, Esso was Dolores Service Station's gasoline and

diesel fuel supplier as well as the owner of three Underground

Storage Tanks (USTs) on the property. The complaint asserted that,

at some point during Esso's ownership of the USTs, the tanks had

leaked petroleum-related substances into the surrounding soil and

groundwater. Plaintiffs alleged that Esso's subsequent failure to

comply with federal and Commonwealth environmental regulations

governing reporting and remediation of such leaks had resulted in

unacceptable levels of contamination, thereby creating a serious

public health hazard.

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 implement remedial measures to

clean up the site and prevent any further contamination. After a

two-day hearing, the district court granted plaintiffs' motion,

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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 improper 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,

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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 gasoline and one

diesel - underneath the station. Esso provided gasoline to the

service station until October 2008, when it stopped supplying

gasoline for retail stations generally and sold its equipment,

including the USTs underneath the Dolores Service Station, to Total

Petroleum.2 During the time that Esso was supplying the service

station, the company replaced both the diesel and the gasoline USTs

at least once.

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, 42 U.S.C. §§ 6901-6992k, and related federal and

Commonwealth environmental regulations. The complaint asserted

that Esso's failure to properly store and dispose of petroleum

1
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.
2
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.

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products had resulted in the discharge of hazardous waste,

including benzene and other petroleum-related hydrocarbons, into

the soil and groundwater below the Dolores Service Station.

Plaintiffs averred that Esso had been aware of the contamination

since at least 1993 but had not properly reported, investigated,

mitigated, or remedied the situation. Plaintiffs sought injunctive

relief and costs under RCRA. Then, on November 7, 2008, they

requested a preliminary injunction, which defendants opposed. At

the two-day hearing on December 2 and 3, 2008, both parties called

several witnesses and introduced documents into the record.

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 perform a comprehensive

site assessment to determine the nature and scope of the soil and

groundwater contamination originating from petroleum products

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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 preliminary injunction order pending

its interlocutory appeal. In their opposition to Esso's Motion to

Stay, the plaintiffs contended that the stay was not warranted

because "the trial on the merits was held" at the preliminary

injunction hearing.

We denied Esso's request 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

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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 Rule 26

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of the Federal Rules of Civil Procedure, plaintiffs responded with

an "urgent" motion to stay all discovery, arguing that discovery

was not warranted because the case "had already been heard" and the

relevant documents had been "produced in open court" at the

preliminary injunction hearing.

II.

A. Statutory and Regulatory Background

Subchapter IX of RCRA regulates USTs. 42 U.S.C. §§ 6991

- 6991(m). Pursuant to this statutory authority, the Environmental

Protection Agency (EPA) has promulgated a series of regulations

that include provisions relating to UST registration, leak

detection, notification, and cleanup requirements. See generally

40 C.F.R. Part 280. The EPA is also empowered to delegate UST

program administration to a state if that state's regulatory

requirements are at least as stringent as their federal

counterparts, 42 U.S.C. §§ 6991c, 6991g. It has delegated that

task to Puerto Rico's Environmental Qaulity Board (EQB), which is

the entity responsible for administering the UST program. See 40

C.F.R. § 282.102(a). "The EQB is an administrative agency created

by the Environmental Public Policy Act, 12 L.P.R.A. §§ 1121-1140a,

to promote environmental and resource conservation." Esso Std. Oil

Co. v. Cotto, 389 F.3d 212, 213-14 (1st Cir. 2004). Consistent

with this federal delegation, the EQB's Underground Storage Tank

Program (USTP) is governed by a set of rules called the Puerto Rico

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Underground Storage Tank Control Regulations (USTCR), which were

enacted on November 7, 1990. In March of 1998, the government of

Puerto Rico and the EPA entered into a Memorandum of Agreement

establishing the manner in which RCRA and the USTCR would be

enforced. See 40 C.F.R. § 282.102.

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, 455

F.3d 1, 6 n.2 (1st Cir. 2006). 42 U.S.C. § 6972 enumerates the

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requirements for a citizen suit under RCRA. It provides that,

subject to certain restrictions, a private citizen may commence a

civil action on his own behalf:

(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. KFC Western, Inc., 516 U.S.

479, 484 (1996). In either case, the Act empowers the district

court to:

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 . . . .

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42 U.S.C. § 6972(a).

There are limitations on citizen suits under RCRA.

First, citizen suits are subject to certain notice requirements.

42 U.S.C. § 6972(b)(1)(A) provides that a suit under (a)(1)(A) may

not be commenced until sixty days after the putative plaintiff has

notified the alleged violator and certain federal and state

regulators; 6972(b)(2)(A) bars the commencement of citizen actions

under (a)(1)(B) for ninety days after the proper parties have been

notified. However, if the action alleges a violation of subchapter

III of the statute (which deals with the management of hazardous

waste specifically), the 60- and 90-day limits do not apply, and a

citizen may file suit immediately after notification. 42 U.S.C. §

6972(b)(1)(A), (b)(2)(A). Finally, the statute also bars citizen

suits if either the EPA administrator and/or the state in which the

alleged contamination is located is already pursuing certain

judicial or administrative actions to achieve compliance with

federal regulations. See 42 U.S.C. § 6972(b)(1)(B), (b)(2)(B), and

(b)(2)(C). We discuss several of the notice and preclusion

provisions in greater detail below.

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'

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section 6972 (a)(1)(A) and (a)(1)(B) claims are both barred by a

civil action currently pending in the Southern District of New York

(SDNY). That suit was brought by the Commonwealth of Puerto Rico

against Esso and other defendants and includes claims under RCRA.

Esso also alleges that the (a)(1)(B) claim is barred by RCRA's 90-

day notice provision.

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 42 U.S.C. §

6972(b)(2)(A) does not apply. Furthermore, they claim that the

Commonwealth's action against Esso in the SDNY is not sufficiently

comparable to preclude the filing of this case.

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 rather

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

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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 Rule

65 of the Federal Rules of Civil Procedure.

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 clear that Esso's USTs originated the

contamination. Therefore, injunctive relief is proper as issued."3

3
In the alternative, plaintiffs contend that by presenting
"undisputed" evidence of contamination and Esso's responsibility
and failure to remediate, they established a likelihood of success
on the merits. This is a direct response to Esso's brief, which
argues that plaintiffs' failure to make the requisite showing of
likelihood of success on the merits renders the injunction
improper. However, because our disposition of this case prevents
us from reaching the question of likelihood of success, we do not
describe the parties' arguments on this topic.

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 IV.

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., 761 F.2d 76, 78-80 (1st Cir.

1985) (dismissing appeal from denial of injunction under RCRA for

want of jurisdiction due to plaintiff's failure to comply with

notice requirements); Rodríguez-Pérez, 455 F.3d at 5-6 (1st Cir.

2006)(analyzing question of whether RCRA citizen suit was precluded

by administrative action as question of subject matter

jurisdiction).

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 42 U.S.C. § 6972(a)(1)(A)

and (a)(1)(B). Esso only challenges the adequacy of plaintiffs'

notice with respect to its (a)(1)(B) claim. This is because 42

U.S.C. § 6972(b)(2)(A) prohibits the commencement of citizen

actions under (a)(1)(B) until ninety days after the proper parties

have been notified. By contrast, § 6972 (b)(1)(A) allows a claim

under (a)(1)(A) to be filed sixty days after notice was given.

Plaintiffs commenced suit on October 7, 2008, which was more than

sixty but fewer than ninety days after the notice letter was sent.

Accordingly, it is only our jurisdiction over the (a)(1)(B) claim

that is implicated by this argument.

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 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., 477 F.3d

1, 6 (1st Cir. 2007) (citing Doyle v. Huntress, Inc., 419 F.3d 3,

6 (1st Cir. 2005)).

In its injunction findings, the district court merely

stated, without further explanation, that "[n]otice requirements

have been met under 42 U.S.C. § 6972." Nor is it clear from the

district court's opinion and order whether the injunction was

issued pursuant to (a)(1)(A) (which would not implicate the notice

issue), (a)(1)(B) (which would), or both. Nevertheless, that

uncertainty ultimately does not matter, since we conclude that the

plaintiffs complied with the notice requirements of RCRA in any

event. The 90-day notice requirement does not apply if the citizen

suit alleges a violation of subchapter III of the statute. 42

U.S.C. § (b)(2)(A). Here, plaintiffs' complaint specifically

alleges that defendants improperly stored and disposed of hazardous

waste "in violation of R.C.R.A. Subchapter III," and that these

actions contributed to an imminent and substantial endangerment to

health or the environment. Accordingly, plaintiffs were authorized

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to file suit immediately after providing notice, and the fact that

they did so before ninety days had elapsed does not divest us of

jurisdiction over the (a)(1)(B) claim.

B. The Diligent Prosecution Bar

1. General Principles

Citizen suits under RCRA were meant to "supplement rather

than to supplant governmental action." Gwaltney of Smithfield,

Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 60 (1987).

Accordingly, a citizen suit under either 42 U.S.C. § 6972(a)(1)(A)

or (a)(1)(B) may be barred if a state or federal agency is

diligently prosecuting an enforcement action against the same

alleged violator, although the preclusion provisions for suits

brought under (a)(1)(A) differ slightly from those applicable to

(a)(1)(B) suits. Specifically, 42 U.S.C. § 6972(b)(1)(B) provides

that a citizen suit under (a)(1)(A) is prohibited if a "State has

commenced and is diligently prosecuting a civil or criminal action

in a court of the United States . . . to require compliance with

[the] permit, standard, regulation, condition, requirement,

prohibition, or order" that the citizen suit seeks to enforce.

Similarly, no action may be commenced under (a)(1)(B) "if the

State, in order to restrain or abate acts or conditions which may

have contributed or are contributing to the activities which may

present the alleged endangerment . . . (i) has commenced and is

diligently prosecuting an action" under that subsection. 42 U.S.C.

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§ 6972(b)(2)(C). Esso alleges that these statutory provisions, and

a civil suit in the SDNY brought by the Commonwealth in which Esso

is a defendant, divest the federal courts of jurisdiction over

plaintiffs' suit.

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.

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Jeffrey G. Miller, Theme and 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 SG1 ground waters

and all Class SD surface waters located on the main island." The

Commonwealth asserts claims for: strict products liability for

defective design and failure to warn; nuisance; trespass;

negligence; violations of the Puerto Rico Public Policy

Environmental Act, Water Pollution Control Act, and Underground

Storage Tank Control Regulations; violations of the Comprehensive

Environmental Response, Compensation, and Liability Act (CERCLA);

violations of the Toxic Substances Control Act; and, finally,

violations of RCRA.

The majority of the factual allegations in the complaint

involve the defendants' liability for the use of MTBE as a gasoline

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additive; indeed, the complaint notes that MTBE contamination 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 have 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

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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.

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Douglas A. Henderson & Mary K. McLemore, MTBE: A Tale of Air,

Water, and Civil Procedure, 19 Nat. Resources & Env't. 20, 20

(2004-2005). Because MTBE litigation is so prevalent, the Judicial

Panel on Multidistrict Litigation has transferred a large number of

actions raising similar allegations to the Southern District of New

York for coordinated or consolidated pretrial proceedings. See 28

U.S.C. § 1407 (permitting transfer where "civil actions involving

one or more common questions of fact are pending in different

ditricts"). Judge Shira A. Scheindlin has now presided over MTBE

cases for nearly a decade. On October 31, 2007, the Panel

transferred the Commonwealth action to her court in the Southern

District of New York; the transfer order indicated that it was the

152nd case to be so transferred.

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., 968 F. Supp. 423, 431-32 (E.D. Wisc.

1997)(holding that a consent order issued by the EPA did not

preclude a citizen suit under RCRA where that consent order 1) did

not necessarily contemplate the remediation of potential

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groundwater contamination, as opposed to surface contamination; and

2) did not address contaminants other than arsenic, whereas the

citizen suit alleged the presence of other contaminants); Frilling

v. Village of Anna, 924 F. Supp. 821, 837-39 (S.D. Ohio 1996)

(allowing citizen suit under Clean Water Act (CWA) to proceed where

Consent Order entered in state civil enforcement action sought to

require compliance with federal parameters for only two of the six

pollutants which citizen plaintiffs alleged had exceeded allowable

levels); see also Maryland Waste Coal. v. SCM Corporation, 616 F.

Supp. 1474, 1484 (D. Md. 1985).

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.

-22-
 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

MTBE that each such Defendant knew or should have known would be

delivered into the Commonwealth." The Commonwealth does not allege

that Esso is one of the "Owner/Operator Defendants" whose alleged

unlawful releases of MTBE-containing substances and failure to take

appropriate precautions to prevent and/or control releases violated

the UST Regulations. In this citizen suit, by contrast, Esso is

named as the owner/operator of the USTs and alleged to be directly

responsible for the contamination emanating from them.

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

-23-
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

-24-
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, 2001 WL 1602046, at * 8 (D. Me. Dec. 14, 2001)

(Kravchuk, Mag. J.) (noting, in the context of a primary

jurisdiction analysis, that "on the state of the current record,"

the potential conflict between a regulatory decree and eventual

court-ordered remediation was "not so inherent and tangible so as

to justify short circuiting this congressionally authorized citizen

suit on primary jurisdiction grounds" because, "when and if this

-25-
Court and the parties arrive[d] at a remedy phase, the conflict

concern [could] be revisited").4

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, 531 F.3d 1, 11 (1st Cir. 2008). More

specifically, we review findings of fact for clear error and

conclusions of law de novo. Id. We will set aside a district

court's ruling as to preliminary injunctive relief "if the court

clearly erred in assessing the facts, misapprehended the applicable

legal principles, or otherwise is shown to have abused its

discretion," Wine and Spirits Retailers, Inc. v. Rhode Island, 418

F.3d 36, 46 (1st Cir. 2005), bearing in mind that, in general,

trial courts have wide discretion in making judgments regarding the

appropriateness of such relief. Charlesbank Equity Fund II v.

Blinds To Go, Inc., 370 F.3d 151, 158 (1st Cir. 2004). An error of

law is always an abuse of discretion. Id.

A preliminary injunction "is traditionally viewed as

relief of an extraordinary nature and does not purport to be a

4
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.

-26-
disposition of the matter on its merits." United States v. School

Dist. of Omaha, 367 F. Supp. 179, 193 (D. Neb. 1973); see also

Benson Hotel Corp. v. Woods, 168 F.2d 694, 696 (8th Cir. 1948)

("The application for [a preliminary] injunction does not involve

a final determination on the merits; in fact, [its] purpose . . .

is not to determine any controverted right, but to prevent a

threatened wrong or any further perpetration of injury . . .[,] and

thus to protect property or rights . . . until the issues can be

determined after a full hearing."). Accordingly, in determining

whether to grant a preliminary injunction, the district court must

consider the following factors:

first, the likelihood that the party
requesting the injunction will succeed on the
merits; second, 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, 271 F.3d 21, 30

(1st Cir. 2001) (citing Ross-Simons of Warwick, Inc. v. Baccarat,

Inc., 102 F.3d 12, 16 (1st Cir. 1996)).

A court granting a preliminary injunction must set forth

the findings of fact and conclusions of law supporting its

issuance. Fed. R. Civ. P. 52(a)(2). We have vacated preliminary

injunctions that fail to include such findings. See, e.g., TEC

Eng'g Corp. v. Budget Molders Supply, Inc., 82 F.3d 542, 545 (1st

Cir. 1996) (vacating injunction for failure to comply with this

-27-
requirement and noting that on remand "the district court w[ould]

have to apply the four-part preliminary injunction test and set

forth the basis for its ruling on each prong"). Furthermore, Rule

65(d)(1) of the Federal Rules of Civil Procedure requires that

every injunction order: "(A) state the reasons why it issued; (B)

state its terms specifically; and (C) describe in reasonable detail

— and not by referring to the complaint or other document — the act

or acts restrained or required." Fed. R. Civ. P. 65(d)(1). "[T]he

federal courts have been very careful to give [Federal Rule 65(d)]

full effect. [Its] requirements . . . have been treated as

mandatory, and even emergency conditions have not warranted a

departure from them." 11A Charles Alan Wright, Arthur R. Miller,

& Mary Kay Kane, Federal Practice and Procedure § 2955 (2009). An

order that fails to comply with the prerequisites of Rule 65(d)

should be set aside on appeal. Id.

Rule 65(a)(2) also provides a procedural mechanism for

consolidating a preliminary injunction hearing with the trial on

the merits. See Fed. R. Civ. P. 65(a)(2). However, the real

"hazards inherent in fully disposing of cases in such an expedited

fashion - among them incomplete coverage of relevant issues and

failure to present all relevant evidence," have led courts to

demand "indisputably clear notice" to the parties before approving

such consolidation. Caribbean Produce Exch., Inc. v. Sec'y of

Health & Human Servs., 893 F.2d 3, 5 (1st Cir. 1989) (reversing the

-28-
final disposition of the case on the merits after preliminary

injunction hearing because district court had failed to notify the

parties of its intent to do so and therefore they had been

"operat[ing] on the assumption that only the preliminary injunction

was at stake"); see also 11A Wright, Miller, & Kane, Federal

Practice and Procedure § 2950 (2009) ("[O]rdering consolidation

during the course of a preliminary injunction hearing is reversible

error when little or no notice is given of this change and the

effect is to deprive a party of the right to present his case on

the merits.").

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 conclusions, 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

-29-
 possible in the respective positions they
occupied when the suit began.

Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 742 (2d Cir.

1952) (Frank, J.) Consequently, it is inappropriate for the court,

at or after a preliminary injunction hearing, to "make findings of

fact or conclusions of law that go beyond what is necessary to

decide whether a preliminary injunction should be issued." 11A

Wright, Miller, & Kane, Federal Practice and Procedure § 2950.5

B. Analysis of the District Court Proceedings

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 district court's explanation

of its preliminary injunction order and its statements in the post-

injunction proceedings.

5
See also Indus. Bank of Wash. v. Tobriner, 405 F.2d 1321,
1323-24 (D.C. Cir. 1968) (holding that to the extent that the
findings and conclusions of the district court "purported to settle
finally the questions of law and fact raised by the complaint,
those findings and conclusions went beyond the determination the
judge was called upon to make" in a preliminary injunction
proceeding, and therefore would not be regarded as binding in
further proceedings).

-30-
 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 station6 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

6
This seems to be an error on the part of the district court.
While Esso supplied the station's petroleum-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.

-31-
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 assessment known as a Phase II Environmental Evaluation.

The ensuing report indicated that the groundwater below the service

station was contaminated with benzene,8 a hazardous petroleum-

7
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.
8
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

-32-
related hydrocarbon which is heavily regulated by the EPA due to

its known carcinogenic properties.9 The court noted that, although

federal regulations establish a Maximum Contaminant Level (MCL) for

benzene of 5 mg/l in groundwater and .5 mg/l in drinking water,

the Phase II report revealed concentrations as high as 2,800 mg/l.

The report concluded that the contamination was "apparently

related" to discharges emanating from the southeast area of the

site, where the USTs are located, and the northeast area, which

contains the grease traps.

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

benzene" (emphasis added).
9
See, e.g., Safe Drinking Water Act, 42 U.S.C. §§ 300f -
300j-26; United States Environmental Protection Agency, "Consumer
F a c t s h e e t o n : B e n z e n e , "
http://www.epa.gov/ogwdw/contaminants/dw_contamfs/benzene.html
(last visited June 10, 2009).

-33-
mitigation measures, without committing itself to removing the

contamination as required." In sum, the court stated that Esso

"appear[ed] 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 others, 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

10
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.

-34-
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 not only
enjoined and restrained from contributing by
action or 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. Post-Injunction Proceedings

On December 19, 2008, Esso moved for reconsideration of

the preliminary injunction order pursuant to Fed. R. Civ. P. 59,

asking the court to modify certain factual findings, including the

determination that Esso would be responsible for paying for all of

the necessary testing, corrective actions, and removal of

contamination within and adjacent to the site. Three days later,

at a hearing on December 22, 2008, the court denied Esso's motion

for reconsideration without explanation.

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

-35-
$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

Fed. R. Civ. P. 65(c), to post a bond in the amount of $75,000 to

cover the anticipated cost of the site assessment. In a written

opinion denying the motion issued the next day, the court

characterized Esso's request as predicated upon "the fact that the

court has ordered Esso to pay for the comprehensive site assessment

that will let . . . the court know the extent of the documented

environmental damage caused by Esso's use of the [station] for the

sale of gasoline and petroleum-based products for a good number of

years." (Emphasis added.) The court stated that it would

"dispense with security altogether, because the grant of the

preliminary injunction carrie[d] no risk of monetary loss" for Esso

in the face of the "documented" contamination resulting from Esso's

"violation of regulatory safeguards designed to prevent

environmental contamination and pollution that adversely affect[ed]

not only Plaintiff, but the general public." The only issue, the

court stated, "was the extent of the contamination and the extent

of measures to be taken to remedy the situation." Because Esso was

liable "as a matter of law for any contamination and environmental

-36-
damage resulting while it had the service station under its direct

supervision and control," the court perceived no risk of monetary

loss to Esso that would necessitate the posting of a bond: "the

only issue seem[ed] to be the extent of the liability." Indeed,

the court characterized Esso's expenditures associated with "the

court's effort to fairly determine the extent of Esso's liability"

(i.e., the site assessment) as "de minimis," and stated that they

paled in comparison to the public interest in remediating damage to

the environment.

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 those regulations. Finally,

the court noted that Esso had "participated fully in proceedings to

fashion interim measures," (presumably a reference to the

comprehensive site assessment). It thus found the stay motion "to

be a belated delay tactic employed in bad faith."

3. Analysis

We acknowledge that the district court used some

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

-37-
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 overwhelming

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, 453 F.2d

1171, 1172 (1st Cir. 1971)(even where there was "no indication that

[a party] would have produced further testimony if notified earlier

that the entire case would be disposed of" after the preliminary

injunction hearing, this did not "sanction the court in changing,

sub silentio, the nature of the game at halftime").

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

-38-
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 Rule 65(d)(1), was a clear

error of law. This refusal also confirmed that the court had

already decided that the plaintiffs had prevailed on the merits,

not merely that they were "likely" to do so.

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

-39-
is necessary. Ultimate findings of liability "should be made only

after all parties have had ample opportunity to employ the liberal

discovery processes offered by the Federal Rules and to otherwise

prepare the matter in detail for presentation to [the] Court in a

manner conducive to sound and deliberate legal determination."

School Dist. of Omaha, 367 F. Supp. at 194; Benson Hotel Corp., 168

F.2d at 698. Despite plaintiffs' representations to the contrary,

Esso has not yet had that opportunity. Because the court's

ultimate findings of liability were made before Esso had the

benefit of the process which it was due,11 the injunction, as

issued, cannot stand.12

11
See, e.g., H & W Indus., Inc. v. Formosa Plastics Corp.,
USA, 860 F.2d 172, 178-79 (5th Cir. 1988) (holding that district
court abused its discretion by denying a preliminary injunction
"based upon its ruling on the underlying merits of the case" and
thereby rendering a sua sponte summary judgment; instead, "grant
or denial of a preliminary injunction must be the product of a
reasoned application of the four factors held to be necessary
prerequisites"); Progress Dev. Corp. v. Mitchell, 286 F.2d 222, 233
(7th Cir. 1961) (rejecting defendants' argument that summary
judgment was appropriate at preliminary injunction stage because
"lengthy hearings and extensive record demonstrate[d] that a full
hearing . . . was held" and finding error in district court's
decision to "pass on the merits of the case on the basis of a
preliminary hearing on a motion for temporary injunction").
12
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. R. Civ. P. 65(a)(2).

-40-
 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, 977 F.2d 27, 31

(1st Cir. 1992). RCRA's citizen suit provision expressly grants

district courts broad equitable powers "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, or

both." 42 U.S.C. § 6972(a).13 Congress "intended that the

injunctive provision have a rather broad scope." Comite Pro

Rescate de la Salud v. P.R. Aqueduct and Sewer Auth., 888 F.2d 180,

185 (1st Cir. 1989).14

13
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.
14
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").

-41-
 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, 516 U.S. at 484. This broad scope includes mandatory

preliminary injunctions. Even though preliminary injunctive relief

is typically intended to preserve the status quo, the status quo

in cases of potential environmental contamination is not a

"condition of rest," but one "of action which, if allowed to

continue or proceed unchecked and unrestrained, will inflict

serious irreparable injury." United States v. Price, 688 F.2d 204,

212 (3d Cir. 1982) (quotation marks and citation omitted). Thus,

the fact that "an injunction may require the payment or expenditure

of money" does not foreclose the possibility of equitable relief;

"[t]he funding of a diagnostic study . . ., though it would require

monetary payments, would be preventive rather than compensatory."

Id. Accordingly, the Third Circuit in Price recognized that a

district court, in appropriate circumstances, would have the

authority to order a diagnostic environmental study, funded by the

defendant, in the context of preliminary injunctive relief. Other

courts have agreed. See, e.g., Bayless Inv. & Trading Co. v.

Chevron USA, Inc., No. 93C704, 1994 WL 1841850, at *4-5, (D. Ariz.

-42-
May 25, 1994); Lincoln Props., LTD v. Higgins, No. S-91-760DFL/GGH

1993 WL 217429, at *16 (E.D. Cal. Jan. 21, 1993).

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 sampling 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, 480 U.S. 531, 545 (1987)

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("Environmental injury, by its nature, can seldom be adequately

remedied by money damages and is often permanent or at least of

long duration, i.e., irreparable.") We also recognize the integral

role of our district courts in enforcing comprehensive federal and

state environmental statutes. See Me. People's Alliance and

Natural Res. Def. Council v. Mallinckrodt, Inc., 471 F.3d 277, 296

(1st Cir. 2006). We do not lightly vacate a preliminary injunction

issued by a district court when the public interest in the relief

sought is so substantial. But not even the expansive equitable

powers of the courts to remediate environmental harm can excuse the

district court's premature determination of the merits of the

plaintiffs' claims against Esso.

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 court's decision as to provisions

1 through 4 on page 9 of the district court order. The first three

provisions pertain to the administration of the comprehensive site

assessment. The fourth provision relates to notice to the EQB and

the EPA.

15
See, e.g., Otis Elevator Co. v. Int'l Union of Elevator
Constructors, Local 4, 408 F.3d 1, 10 (1st Cir. 2005) (affirming
only one aspect of preliminary injunction order and vacating the
remainder); Auburn News Co. v. Providence Journal Co., 659 F.2d
273, 274 (1st Cir. 1981) (same).

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 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 Rule 65(c).16 Once the district court has

received the results of the environmental analysis of the site, it

should address the merits of plaintiffs' case, subject to the

applicable rules of discovery. We express no position on how that

matter should ultimately be resolved. We also wish to make clear

that nothing in this opinion forecloses the district court's

ability to order further preliminary injunctive relief, such as

further testing, or remediation of conditions that imminently

threaten public health and safety, so long as any such relief is

consistent with this opinion, the Rules of Civil Procedure, and our

case law.

16
See Fed. R. Civ. P. 65(c) ("The court may issue a
preliminary injunction or a temporary restraining order only if the
movant gives security in an amount that the court considers proper
to pay the costs and damages sustained by any party found to have
been wrongfully enjoined or restrained." (emphasis added)); 11A
Wright, Miller, & Kane, Federal Practice & Procedure, § 2954 (2d
ed. 2009) ("[Rule 65(c)] is phrased in mandatory terms and the
conclusion seems inescapable that once the court decides to grant
equitable relief under Rule 65 it must require security from the
applicant . . . In fact, . . . a district court's failure to
require the posting of a bond or other security has been held
reversible error." (footnotes omitted).

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 Affirmed in part, vacated in part, and remanded for

further proceedings consistent with this opinion. Each party shall

bear its own costs.

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