Opinion
CIVIL ACTION 02-1258, SECTION "T"(5)
December 17, 2003
ORDER AND REASONS
Before the Court is a Motion for Partial Summary Judgment "on Standing (Document 42) and a Partial Motion for Summary Judgment on Liability (Document 43) filed on behalf of the plaintiffs, Oakville Community Action Group ("Oakville") and Louisiana Environmental Action Network ("LEAN"). The parties waived oral argument and the matter was taken under submission on November 19, 2003. The Court, having considered the arguments of the parties, the Court record, the law and applicable jurisprudence, is fully advised in the premises and ready to rule.
I. BACKGROUND
Oakville and LEAN are environmental groups, whose members include residents of Oakville, Louisiana, who allege they have suffered injuries to their environmental, recreational, aesthetic, health, and safety interests due to the location and operation of defendant's, Industrial Pipe, Inc. ("Industrial Pipe"), waste transfer and landfill, which are located adjacent to the Oakville community.
Industrial Pipe has been operating a transfer station/separation facility since August 1991, which processes and segregates "white goods" (appliances) for recycling or, if not qualified for disposal at the landfill, for off-site disposal. The facility was originally permitted as a Type II-A facility under the DEQ regulations, which at that time provided for a buffer zone of 200 feet between the facility and adjoining property but also allowed this requirement to be waived by the adjoining landowner. The transfer station is located at the rear of the Industrial Pipe property, approximately thirteen hundred (1300) feet from the nearest home.
The facility was located less than 200 feet from the adjoining property, which was and remains unoccupied land. Mr. Eckard Johnson, Sr., the adjoining landowner who is now deceased, represented his authority to execute a buffer zone waiver and the DEQ issued the transfer station permit. The validity of the waiver began to be questioned after Industrial Pipe constructed the facility and began operations.
This lawsuit is not the first time that the buffer zone requirement and Industrial Pipe's operations have been challenged. Currently, there are proceedings pending three different forums: federal court, state court in Plaquemines Parish, and DEQ.
II. PLAINTIFFS' ARGUMENTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
A. PARTIAL SUMMARY JUDGMENT ON STANDING
Plaintiffs argue that they have met the requirements for associational standing by demonstrating that their members residing in Oakville have suffered injuries that are fairly traceable to Industrial Pipe, that these injuries are redressable by this Court, that the interests they seek to protect in this lawsuit are germane to their purpose to protect the health and safety of the Oakville community and environment, and that this lawsuit does not require the participation of individual members of Oakville or LEAN because it does not seek monetary damages or particularized relief limited to a single person or group.
As representative groups, Oakville and LEAN submit that they have standing to sue on behalf of their individual members. In Texans United for a Safe Econc. Educ. Fund v. Crown Cent. Petroleum Corp., the Fifth Circuit held that "[a]n association has standing to bring suit on behalf of its members when: (1) its members would otherwise have standing to sue in their own right; (2) the interests it seeks to protect are germane to the organization's purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual members."
Texans United for a Safe Econc. Educ. Fund v. Crown Cent. Petroleum Corp., 207 F.3d 789, 792 (5th Cir. 2000) (citing Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977)).
Plaintiffs argue that they meet the first prong of the test and have standing to sue in their own right under Article III of the U.S. Constitution, which provides that the individual standing inquiry is to determine whether a plaintiff has (1) suffered an "injury in fact," (2) that is "fairly traceable to the challenged action of the defendant", and (3) "it is likely . . . that the injury will be redressed by a favorable decision." Plaintiffs contend that the individual members of Oakville and LEAN have standing under Article III because they suffer injuries from Industrial Pipe's violations of the Resource Conservation and Recovery Act ("RCRA"), the individual members injuries are fairly traceable to Industrial Pipe's non-compliance with RCRA, and the individual members' injuries from Industrial Pipe's violations are redressable by this Court through an injunction and civil penalties.
Friends of the Earth, Inc. v. Laidlaw Envtl Serv., Inc., 528 U.S. 167, 180-81 (2000).
Plaintiffs submit that the second prong of the test is satisfied as the ecological, recreational, aesthetic, health and other interests that Oakville and LEAN seek to protect with this lawsuit are germane to their goal of achieving environmental safety in the Oakville community.
Finally, plaintiffs argue that they satisfy the third prong of the test because neither the claim nor the relief requested requires the participation of individual members of Oakville or LEAN, as the lawsuit does not seek monetary damages or particularized relief limited to a single person or group.
In addition, plaintiffs argue that the governing regulations recognize that the buffer zone benefits the larger Oakville community and not just the adjacent landowners. Absent a valid waiver, Industrial Pipe could only receive a modification of the 200-foot buffer zone by requesting an exemption and demonstrating that "the proposed activity will have no significant adverse impact on the public health, safety, welfare, and the environment . . ." B. PARTIAL SUMMARY JUDGMENT ON LIABILITY
La. Admin. Code § 33:VII:307.B.2.b.
The plaintiffs state two physical facts and one applicable provision of law which they allege mandate summary judgment on Industrial Pipe's buffer zone violations: (1) Industrial Pipe is a Type II-A transfer facility; (2) the protective buffer zone between Industrial Pipe's Type II-A facility and the adjoining private property is fewer than 200 feet, as it extends into the adjoining private property; and (3) Louisiana law, specifically La. Admin. Code 33.VII.717(B)(2)(a), requires a buffer zone of at least 200 feet between Type II-A facilities and adjoining property. In conclusion, Oakville and LEAN argue that they are entitled to summary judgment declaring Industrial Pipe in violation of the 200-foot buffer zone required for its Type II-A transfer station.
Plaintiffs contend that the defendant's argument that the 200-foot buffer zone requirement was waived should fail for two reasons. First, plaintiffs allege that the buffer zone requirement was not waived, as the LDEQ called the waiver "not good or valid at the time [Industrial Pipe] applied for a permit." In addition, plaintiffs produce a letter from the defendant to the LDEQ which states that Mr. Johnson only owned a one-ninth undivided interest in the property and the waiver may be considered potentially defective. Second, plaintiffs submit that the waiver does not comply with the legal requirements for a valid waiver, as to qualify a landowner's permission must be "in the form of a notarized affidavit" which "shall be entered into the mortgage and conveyance records of the parish for the adjoining landowner's property." Because the waiver attached to the defendant's opposition fails to meet either of those requirements, and is inadmissible and not relevant, plaintiffs argue that they have not produced evidence that raises a genuine issue of fact material to the plaintiffs' summary judgment motion of liability.
Letter from H.M. Strong, LDEQ to Kennett Stewart, Industrial Pipe, October 21, 1996.
Letter from Industrial Pipe to J. Dale Givens, LDEQ Secretary, September 30, 1996.
La. Admin. Code 33:VII.717.B.2.a
Further, plaintiff argues that this Court should reject defendant's abstention argument that this lawsuit would interfere with present or future action in which they are involved in with the DEQ.
III. DEFENDANT'S ARGUMENTS IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
1. Under Louisiana law, plaintiffs have not established standing to assert the alleged buffer zone violation.
The defendant concedes that the plaintiffs have standing to pursue their RCRA claims (Counts I and II of the Complaint) based on this Court's ruling of October 8, 2002, they contend that the plaintiffs have not sought to affirm, much less establish their standing to pursue their state law claims (Counts III through IX of the Complaint) for alleged violations of the Louisiana Administrative Code provisions regulating solid waste disposal, which includes buffer zone claims based on state law. The buffer zone requirement at issue is found in Louisiana's solid waste regulations governing Type I-A and Type II-A landfills. They provide:
a. Buffer zones not of not less than 200 feet shall be provided between the facility and the property line. A reduction on this requirement shall only be allowed with the permission, in the form of a notarized affidavit, of the adjoining landowner and occupants.
b. No storage, processing or disposal of solid waste shall occur within the buffer zone.
LAC, Title 33, Section 717:8.2.
Under Louisiana law, an association has standing to bring suit on behalf of its members when (1) its members would otherwise have standing to sue on their own right; (2) it seeks to protect interests which are germane to the organization's purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual members.
Calcasieu League for Environmental Action v. Thompson, 661 So.2d 14, 146 (La.App. 1st Cir. 1995); Friends of the Earth, Inc. v. Laidlaw Environmental Services, 120 S.Ct. 693, 704 (U.S. 2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992)).
The defendant argues that the first prong of the test is not satisfied, as neither Oakville, LEAN, nor any of their individual members own or occupy property "adjoining" or contiguous to Industrial Pipe's transfer station and the plaintiffs lack standing to pursue this particular permit violation. The buffer zone, as defined in Section 717(B) of the Louisiana Administrative Code, is the zone between the permitted facility and the "adjoining" landowner and/or occupants. The requirement may be waived or reduced (as it was in this instance) if the adjoining landowner and/or occupants give their permission. Third parties with no ownership interest in or who do not occupy the adjoining parcels of land have no legal right to complain of an alleged buffer zone violation or of an adjoining landowner's decision to waive that permit requirement. Defendants contend that as plaintiffs do not assert that any of their members own or occupy property in the buffer zone, nor have they alleged any actual or potential injury as a result of the buffer zone violation, along with the fact that they are not proven to be either owners or occupants of the property in the buffer zone, they lack the type of injury-in-fact that should be required to establish standing to assert a buffer zone violation. Moreover, the actual owners or occupants of the property granted Industrial Pipe a waiver of the 200 foot buffer zone requirement, rendering the plaintiffs claims moot or forcing them to accept the so-called injury caused by the buffer zone violation without redress.
Lujan, 504 U.S. at 560-61.
Since niether LEAN, Oakville, nor its inidividual members own or occupy the adjoining parcel of land, defendants claim they have no protected interest whatsoever, much less one that is germane to the state organizational purpose of protecting the ecological, recreational, esthetic and health concerns of Oakville and Louisiana residents. Therefore, defendants submit that plaintiffs have failed to satisfy the second prong of the test.
See Texans United for a Safe Economy Educ. Fund v. Crown Central Petroleum Corp., 207 F.3d 789, 792 (5th Cir. 2000).
Finally, the defendant argues that plaintiffs have failed to satisfy the third prong of the test, as the claims against Industrial Pipe for buffer zone violations necessarily require the participation of individual members. The defendant contends that by the very terms of the regulation at issue, the buffer zone requirement mandates the participation of the owner or occupant of the property adjoining the transfer station, making the interest personal to that landowner or occupant. Accordingly, the claim is one belonging to the adjoining landowner and/or occupant and their participation is essential to the resolution of the claim. Based on the foregoing reasons, defendant argues that this Court should dismiss plaintiffs' motion for summary judgment regarding standing.
2. In light of the pre-existing DEQ compliance order and permit application regarding the buffer zone, this Court should allow the DEQ to decide whether Industrial Pipe exceeded the buffer zone requirements.
Industrial Pipe argues that the plaintiffs' buffer zone violation claim and other state law claims should be deferred or stayed until the DEQ completes its pending proceedings and issues its decisions on this issue. They submit that dismissal or deferral of the plaintiffs' claims is warranted under the Burford abstention doctrine, which applies when timely and adequate state review is available and where the exercise of federal review of a question in a case would be disruptive of state efforts to create a coherent policy with respect to a matter of substantial public concern. When applying the relevant factors to the facts at issue, the defendant contends that the Burford abstention applies and the DEQ's comprehensive system would be undermined if federal courts were to step in.
Wilson v. Valley Elec. Membership Corp., 8 F.3d 311, 314 (5th Cir. 1993).
To support its contention that this Court should not supplant the Louisiana DEQ's specific authority over the state law buffer zone issue which is already before the DEQ, the defendant cites to many cases in which federal courts have abstained from deciding RCRA and related claims when a suit will require a review of the state's environmental permitting process. In addition, the defendant submits that to date, the DEQ has conducted extensive proceedings on this issue and during recent inspections has noted: "areas of concern at the Transfer Station are on-going issues in conflict with the current Permit, and are to be addressed and/or corrected in the approval of the Permit Renewal/Modification. Accordingly, the defendant ask that this Court dismiss, or in the alternative, stay plaintiffs' buffer zone claims because they involve local permitting and regulatory issues that are already being adjudicated through the DEQ and Louisiana courts.
DEQ Inspection Report dated June 26, 2003.
3. Summary Judgment should be denied because disputed issues of law and fact exist regarding whether industrial pipe violated the buffer zone requirements.
A. The buffer zone requirement was waived, or at minimum, a contested
issue of fact regarding whether the requirement was waived.
The property adjoining the transfer station was unoccupied land owned by Mr. Eckard Johnson, Sr. Industrial Pipe obtained a buffer zone waiver from Mr. Johnson prior to the construction of the transfer station and included such waiver in its Solid Waste Permit Application, which was issued by the DEQ on November 9, 1998, The validity of the waiver has been questioned, but never resolved due to the fact that Mr. Johnson is now deceased and determining its validity would require expert testimony.In support of their argument that the buffer zone waiver is invalid, plaintiffs attach a letter dated October 21, 1996, from the DEQ stating that the wavier was invalid at the time Industrial Pipe applied for its permit. The defendant contends that this letter is invalid and inadmissible hearsay that cannot be considered for purposes of granting summary judgment. They argue that the letter is an out of court statement submitted to prove the truth of the matter asserted and as such, is hearsay under Fed.R.Evid. 801. Further, they argue that the letter does not fall under any of the recognized hearsay exceptions. The defendant alleges that the letter later became part of a Compliance Order that Industrial Pipe contested and has not yet been definitively resolved by the DEQ and even if the letter is deemed to include "factual findings from an investigation" it lacks the requisite level of trustworthiness required to be admissible to prove its contents.
With respect to plaintiffs' argument that the waiver is not in valid form, the defendant submits that these regulations regarding notarization and filing in the mortgage and conveyance records were not in effect at the time the wavier was obtained. Therefore, the defendant argues that the waiver complies with the regulations in place at that time. B. Disputed issues of law and fact exist regarding whether Industrial Pipe's separation facility is subject to the 200 foot buffer zone requirement.
After Industrial Pipe obtained the permit for its transfer station, DEQ revised its solid waste regulations and substantially modified the definition of a Type II-A transfer station, which added a new category of permitted transfer station, the Type III separation facility. As stated above, this facility requires only a 50 foot buffer zone between the facility and the neighboring property line. In light of the revision, Industrial Pipe sought to have its permit modified to classify the transfer station as a Type III separation facility. Currently, this request is before the DEQ, which has stated it will address the buffer zone requirement in this permitting process. Therefore, the applicable buffer zone distance will depend upon DEQ's classification of the facility. In conclusion, there clearly exists issues of material fact as to the type of facility Industrial Pipe's operates and the applicable buffer zone.
IV. LAW AND ANALYSIS OF THE COURT
A. Law on Rule 56 Summary Judgment
The Federal Rules of Civil Procedure provide that summary judgment should be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The party moving for summary judgment bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. The nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial."
Stults v. Conoco, Inc., 76 F.3d 651, 655-56 (5th Cir. 1996) (citing Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 912-13 (5th Cir.) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)), cert. denied, 506 U.S. 832 (1992)).
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis supplied); Tubacex, Inc. v. M/V RISAN, 45 F.3d 951, 954 (5th Cir. 1995).
Thus, where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue for trial." Finally, the Court notes that substantive law determines the materiality of facts and only "facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment."
Id. at 588.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
B. Analysis of the Court
With respect to the issue of whether the plaintiffs have established standing to assert the alleged buffer zone violation, this Court finds that Oakville and LEAN do have standing to bring this claim, as for standing purposes, the "injury in fact" need not be physical or economic, but rather may be based on "aesthetic" or "recreational" injuries. Because the plaintiffs have submitted affidavits that state they are members of the Oakville community whose quality of life is affected by Industrial Pipe's facility, they have shown reasonable concerns about the effects of activity that has occurred or will occur by virtue of Industrial Pipe's activity. This Court agrees that the plaintiffs have proven that they have a concrete interest in Industrial Pipe's violation of the buffer zone and have demonstrated that they have suffered injuries that are traceable to the defendant's operations.
Friends of the Earth, Inc. v. Laidlaw Envtl. Serv., Inc., 528 U.S. 167, 183 (2000).
Friends of the Earth, Inc., 528 U.S. 183-84.
With respect to the issue of liability, this Court acknowledges that there exist serious questions of material fact as to the validity of the buffer zone waiver. The plaintiffs contend that the waiver is not valid, based on the October 21, 1996 letter from the DEQ. The defendant argues that the letter is inadmissible. Whether or not the wavier is valid is a question of fact, inappropriate for determination on a Motion for Summary Judgment.
The Burford abstention doctrine applies when federal court involvement would be "disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern." Factors relevant in making this decision are (1) whether the cause of action arises under federal or state law; (2) whether the case requires inquiry into unsettled issues of state law or into local facts; (3) the importance of the state interest involved; (4) the state's need for a coherent policy in that area; and (5) the presence of a special state forum for judicial review. As this Court stated in the October, 2002 Order, the Burford abstention does not apply in the case at hand, as this action does not interfere with any present or future action in which the defendants may be involved with the DEQ with regard to their permits. Accordingly,
Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed 1424 (1943).
New Orleans Public Serv., Inc. v. Council of the City of New Orleans, 491, U.S. 350, 361(1989).
Wilson v. Valley Elec. Membership Corp., 8 F.3d 311, 314 (5th Cir. 1993).
IT IS ORDERED that the Motion for Summary Judgment filed on behalf of the Plaintiffs, Oakville and LEAN, be and the same is hereby DENIED.