Cox v. City of Dallas
| Decision Date | 26 June 2001 |
| Docket Number | No. 99-11029,99-11029 |
| Citation | 256 F.3d 281 |
| Parties | (5th Cir. 2001) HAROLD COX; SHIRLEY DAVIDSON; ROBERT STUBBLEFIELD; CYNTHIA HERRING; ELOUISE EDWARDS; BETTY CURLEY; LEO EASTER, Plaintiffs - Appellees - Appellants v. CITY OF DALLAS TEXAS; ET AL Defendants JEFFREY A SAITAS, Executive Director of the Texas Natural Resource Conservation Commission, Defendant - Appellee HAROLD COX; SHIRLEY DAVIDSON; ROBERT STUBBLEFIELD; CYNTHIA HERRING; ELOUISE EDWARDS; BETTY CURLEY; LEO EASTER, Plaintiffs - Appellees v. CITY OF DALLAS TEXAS; ET AL, Defendants CITY OF DALLAS TEXAS, Defendant - Appellant |
| Court | U.S. Court of Appeals — Fifth Circuit |
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Appeals from the United States District Court for the Northern District of Texas
Before KING, Chief Judge, PARKER, Circuit Judge, and FURGESON,* District Judge.
Plaintiffs Harold Cox et al. filed suit against Defendant City of Dallas, Texas and Defendant Jeffrey A. Saitas, Executive Director of the Texas Natural Resource Conservation Commission, alleging violations of the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. The City appeals from the district court's judgment granting Plaintiffs injunctive relief under § 6972(a)(1)(B). Plaintiffs appeal from the district court's judgment denying injunctive relief against Saitas. For the following reasons, we AFFIRM.
This case involves two consolidated citizen suits brought pursuant to the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6901 et seq., concerning two open garbage dumps in Dallas, Texas -- an 85-acre lot located at 523 Deepwood Street (the "Deepwood dump")1 and an adjacent 40-acre lot (the "South Loop 12 dump").2
Zoned for residential use, the Deepwood and South Loop 12 dumps have been used for sand and gravel mining and illegal dumping for over twenty-five years. Substantial deposits of uncovered solid waste, including household waste, tires, demolition debris, insulation, asphalt shingles, abandoned automobiles, jugs and bottles labeled "sulfuric acid" and "nitric acid," 55-gallon drums, and syringes, are on the properties.3 The dumps adjoin residential neighborhoods and a tributary to the Trinity River and are partially in the flood plain of the Trinity River. Neither dump has been upgraded or closed according to sanitary landfill criteria. See 42 U.S.C. § 6944(a). Residents adjacent to the dumps report the appearance of snakes and rats in their backyards since the beginning of the illegal dumping, and the dumps are easily accessible to children in the neighborhood.4 Since at least 1976, the State of Texas and the City of Dallas, Texas (the "City") have been aware of open dumping on both sites.
In August 1976, officials from the Texas Natural Resource Conservation Commission (the "TNRCC")5 and the City's sanitation department visited the Deepwood dump and prepared a report that called for continuing surveillance of the site. In 1983, the City conducted soil and water tests at the Deepwood dump in response to complaints from nearby residents that illegal dumping was taking place. The City's report and test results, which made clear that the Deepwood dump was being used for the disposal of solid waste, were sent to the State for analysis.
In 1987, the City filed suit in state court against the owners of the Deepwood dump for dumping solid waste without a state permit and joined the TNRCC as a necessary party. In December 1989, the state court entered a final judgment, requiring the Deepwood dump owners to submit and implement a plan for closure of the site. An April 1991 inspection revealed that the Deepwood dump had not been cleaned up or closed, and the City filed a contempt motion. This motion was not heard by the state court, and no further action was taken by the State or the City to enforce the judgment.
During this time, the City contracted with Billy Nabors and Dallas Demolition Excavating Co. ("Dallas Demolition") to conduct demolitions of City property. These City contractors disposed of their debris at the Deepwood dump. The City's contracts with Dallas Demolition did not specify that waste materials generated by City activities must be properly disposed of in a legal landfill. The City was aware that Dallas Demolition dumped at the Deepwood dump. However, even after the City's attorneys had learned of Dallas Demolition's illegal acts, the City continued to use Dallas Demolition.
Also, the City designed and implemented a plan to reclaim the area from the flood plain by depositing fill material in the low spots. The plan's objective was to collect more tax revenue from the area by eventually rezoning it for industrial purposes. In 1982, Terry Van Sickle began operating the Deepwood dump with land use and fill permits issued by the City. Van Sickle overtly stated his intention to dump solid waste at the Deepwood dump when he submitted his application to the City: "Fill old pits with solid waste 'means all putrescible and non putrescible discarded materials or unwanted rock, dirt, metal, sand gravel wood etc. [sic]." The City subsequently issued a certificate-of-occupancy permit based on this application. While this certificate stated that the use was to be for the "mining of sand and gravel,"6 it did not specifically restrict the types of fill material. Furthermore, the City's Public Works Department later granted Van Sickle "[p]ermission to fill the mined areas." This grant also did not restrict the types of fill material, although Van Sickle had made his intentions clear regarding the solid waste fill he wished to employ in the dump. In its own documents, the City admits that "control at the site[s] has been loose and in a few cases improper material has been used for fill . . . [and] some approved flood plain areas have had large amounts of decomposable material placed in them."
At a Board of Adjustment hearing, the City considered the impact of operations at the Deepwood dump on the community. Although residents adjacent to the dump provided information about the illegal dumping and the hazards at the dump and requested that the Board put an end to the use of the dump, the Board did not act to terminate the dumping. Plaintiffs contend that it was in the City's interest to continue the filling of the land because it would further the City's plan of elevating the area, thus reclaiming it from the flood plain (which would then permit the City to rezone the land for industrial use, making the area more financially profitable for the City). Until the district court's injunction, the City had never revoked the certificate-of-occupancy permit for the Deepwood site.
Herman Nethery, the current owner of the Deepwood dump, operated an illegal open dump at the Deepwood site from 1994 through 1997. The State inspected the Deepwood dump several times from 1995 to 1997 and discovered massive illegal dumping, including asbestos, benzene, and medical waste.7 The State also noted in its own reports that there was an imminent threat of the discharge of municipal solid waste into Elam Creek, a tributary of the Trinity River, because of the concentrated dumping. In addition, the State observed that shingles and construction and demolition debris at the dump may cause contamination of surface and ground water through the leaching of contaminates from the debris by rainwater. For several months during 1988 and during 1997, the Deepwood dump caught fire and burned, and a significant fire hazard still exists at the site.
Despite this history, in August 1994, the City granted Nethery a permit allowing mining use of the Deepwood dump. The City failed to follow its own procedures of issuing permits: no inspection was conducted prior to the issuance of the permit, and no test zone was established around the areas where illegal solid waste had been deposited.
In 1995, the City filed suit against Nethery in state court alleging violations of the Texas Solid Waste Disposal Act (the "TSWDA"), and the State intervened. The state court entered judgment against Nethery for $15,000,060. The judgment does not require that any of the imposed civil penalties be used for cleaning up the dump. In addition to the state civil actions, the State criminally prosecuted Nethery and Herman Lee Gibbons, an operator at the Deepwood dump. Both were convicted of violating Texas organized crime laws relating to the financing of the illegal dump, and both were incarcerated in Texas on those charges.
The City informed the State and the United States Environmental Protection Agency ("EPA") that the Deepwood dump poses long-term fire and health hazards for the neighborhood and requested funds to remediate the dump. The State and the EPA refused to provide funds to clean up the dump.
In 1964, the City entered into an agreement to use the South Loop 12 site as a sanitary landfill. In 1972, the then-owner of the site excluded the City from dumping because the City had not complied with the conditions in the agreement (i.e., to cover the refuse that it had dumped with at least eighteen inches of compact soil). In addition, the City never canceled this agreement. In 1989, the City and the State sued the owners of the South Loop 12 dump in state court for violating the TSWDA. The state court entered an Agreed Final Judgment in 1990, ordering the owners to clean up the dump. An April 1991 inspection found that no corrective action had been taken, but the City and State did nothing to gain compliance with the 1990 judgment.8 As was the case with the Deepwood dump, there currently exists a substantial danger of fires from the solid waste present on the site, and the dump is also easily accessible to children.9 The South Loop 12 site remains an open dump, and the State has not cleaned, and does not intend to...
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