AES P.R., L.P. v. Trujillo-Panisse

• Citation: 199 F.Supp.3d 492
• Decision Date: 27 July 2016
• Docket Number: Civil No. 14-1767 (FAB)
• Parties: AES PUERTO RICO, L.P., Plaintiff, v. Marcelo TRUJILLO-PANISSE, et al., Defendants.
• Court: United States District Courts. 1st Circuit. District of Puerto Rico

199 F.Supp.3d 492

AES PUERTO RICO, L.P., Plaintiff,

v.Marcelo TRUJILLO-PANISSE, et al., Defendants.

Civil No. 14-1767 (FAB)

United States District Court, D. Puerto Rico.

Signed July 27, 2016

David T. Buente, Paul J. Zidlicky, Samuel B. Boxerman, Paul J. Sampson, Sidley Austin LLP, Washington, DC, Ricardo L. Ortiz-Colon, Melissa Hernandez-Carrasquillo, Fiddler Gonzalez & Rodriguez, P.S.C., Jose L. Ramirez-Coll, Antonetti Montalvo & Ramirez-Coll, San Juan, PR, for Plaintiff.

Francisco J. Medina-Medina, San Juan, PR, for Defendants.

OPINION AND ORDER

BESOSA, District Judge

Two Puerto Rican municipalities, Humacao and Peñuelas, passed ordinances restricting the use of ash derived from coal combustion within their territorial borders. AES Puerto Rico, L.P. ("AES-PR"), a coal-fired power plant owner, filed suit against the municipalities to challenge the legality of the ordinances. (Docket No. 1.)

Before the Court are AES-PR's second motion for partial summary judgment, (Docket No. 84), related statement of undisputed facts, (Docket No. 85), and related motion for judicial notice, (Docket No. 86). Defendants, the municipalities and their mayors, opposed plaintiff's motion for partial summary judgment, (Docket No. 107), and plaintiff replied, (Docket Nos. 115, 117).

Also before the Court are defendants' motion for summary judgment, (Docket No. 88), related statement of uncontested facts, (Docket No. 89), and motion for judicial notice, (Docket No. 90). Plaintiff opposed defendants' motion for summary judgment, (Docket No. 108), responded to their request for judicial notice, (Docket No. 110), and responded and moved to strike exhibits attached to defendants' statement of uncontested facts, (Docket Nos. 109, 111). Defendants opposed plaintiff's motion to strike. (Docket No. 118.)

The Court has already ruled on a partial motion for summary judgment and judgment on the pleadings filed by AES-PR addressing the federal and Commonwealth preemption claims. (Docket No. 60.)

I. REQUESTS FOR JUDICIAL NOTICE AND MOTION TO STRIKE EXHIBITS

Before reviewing the facts underlying the parties' motions for summary judgment, the Court first evaluates the admissibility of the documents presenting those facts. Thus, the Court reviews the parties' requests for judicial notice, (Docket Nos. 86, 90), and plaintiff's motion to strike, (Docket No. 111).

A. Requests for Judicial Notice

Both parties request that the Court take judicial notice of several documents. (Docket Nos. 86, 90). Federal Rule of Evidence 201(b) allows a court to take judicial notice of "a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). Thus, to be reasonably indisputable in order to qualify for judicial notice, a fact must meet at least one of those two prongs. "[The] party requesting judicial notice bears the burden of persuading the trial judge that the fact is a proper matter for judicial notice." In re Tyrone F. Conner Corp., Inc., 140 B.R. 771, 781 (Bankr.E.D.Cal.1992) (citing In re Blumer, 95 B.R. 143 (9th Cir. BAP 1988) ).

1. Plaintiff's Request for Judicial Notice

AES-PR requests that the Court take judicial notice of the following documents as exhibits to its motion for partial summary judgment:

(1) Municipality of Humacao Ordinance Number 21, Series 2013-2014 (the "Humacao Ordinance") (Docket No. 86-1)¹ ;

(2) Municipality of Peñuelas Ordinance Number 13, Series 2012-2013 (the "Peñuelas Ordinance") (Docket No. 86-2);

(3) AES-PR Guayama facility's Puerto Rico Environmental Quality Board ("EQB") Operating Permit (Docket No. 86-3);

(4) El Coqui Landfill's EQB Permit to Operate a Facility for Final Disposal of Non-Hazardous Solid Waste (Docket No. 86-4);

(5) Peñuelas Valley Landfill's EQB Permit to Operate a Facility for Final Disposal of Non-Hazardous Solid Waste (Docket No. 86-5);

(6) the Environmental Protection Agency ("EPA")'s August 14, 2014 letter to the EQB (Docket No. 86-6);

(7) the EQB's August 27, 2014, Resolution No. R-14-27-20 (Docket No. 86-7);

(8) the EQB's October 15, 2015, Resolution No. R-15-23-1 (Docket No. 86-8);

(9) Ecosystems Landfill's EQB Permit to Operate a Facility for Final Disposal of Non-Hazardous Solid Waste (Docket No. 86-9); and

(10) the English translation of Puerto Rico Tourism Co. v. Municipality of Vieques, 179 D.P.R. 578 (2010) (Docket No. 86-10).

(Docket No. 86 at pp. 1-2.) Defendants do not challenge AES-PR's requests for judicial notice.

Pursuant to Federal Rule of Evidence 201, the Court already took notice of documents 1, 2, 3, 4, and 7 as authentic public records. (Docket No. 60 at pp. 9-11.) Pursuant to the same authority, the Court takes judicial notice of the existence of documents 5, 6, 8, 9, and 10 as public records whose authenticity is not disputed. Document 6, the EPA letter, is "relevant not for the truth of anything asserted in it but simply as a legally significant event ...." See Torrens v. Lockheed Martin Servs. Grp., Inc., 396 F.3d 468, 473 (1st Cir.2005). Taking judicial notice of the existence of document 10, the Puerto Rico Tourism Co. order,² not its content, does not elevate it from a source of persuasive authority to one of binding authority. See Peviani v. Hostess Brands, Inc., 750 F.Supp.2d 1111, 1117 (C.D.Cal.2010).

Accordingly, the Court finds the above documents appropriate for judicial notice. AES-PR's request for judicial notice, (Docket No. 86), is GRANTED .

2. Defendants' Request for Judicial Notice

Defendants request that the Court take notice of nineteen documents, (Docket No. 90), and plaintiff opposes this request on numerous grounds, (Docket No. 110). Defendants request that the Court take judicial notice of the following documents:

(1) the publication by Alan H. Lockwood and Lisa Evans titled Ash in Lungs: How Breathing Coal Ash is Hazardous to Your Health(Docket No. 90-1);

(2) the EPA's November 7, 2011, letter to the EQB (Docket No. 90-2);

(3) the publication by B. Gottlieb, et al. , Coal Ash: The Toxic Threat to Our Health and Environment(Sept. 2010) (Docket No. 90-3);

(4) the EPA publication 600/R.-12/724 by A.C. Garrabrants, et al. , titled Leaching Behavior of "AGREMAX" Collected from a Coal-Fired Power Plant in Puerto Rico(Dec. 2012) (Docket No. 90-4);

(5) the Puerto Rico Senate Report on Bill 340 (Oct. 2013) (Docket No. 103-1);

(6) the Test America, Inc. Analytical Report by S. Hoffman titled Summary of Analysis of a Coal Ash Sample Taken in Salinas, Puerto Rico(Sept. 28, 2010) (Docket No. 90-6);

(7) the El Nuevo Día newspaper article by G. Cordero, titled Bill for Regulation of Toxic Coal Ash(Sept. 11, 2013) (Docket No. 103-2);³

(8) the Peñuelas Ordinance (Docket No. 90-8);

(9) the Humacao Environmental Quality and Natural Resources Commission Report (Oct. 10, 2013) (Docket No. 90-9);

(10) the Humacao Ordinance (Docket No. 90-10);

(11) the Puerto Rico Senate Resolution 1158 (May 13, 2015) (Docket No. 103-4);

(12) the Puerto Rico House of Representatives Tenth Partial Joint Report on Resolution No. 305 (Feb. 13, 2007) (Docket No. 103-10);

(13) the El Nuevo Día newspaper article by G. Alvarado-Leon titled AES Coal Ash Toxic(Mar. 14, 2013) (Docket No. 103-5);

(14) the El Nuevo Día newspaper article by G. Alvarado-Leon titled AES Ashes in Arduous Debate(Docket No. 103-6);

(15) the El Nuevo Día newspaper article by R. Tellado-Domenech titled House of Representatives Hones in Aim on AES(July 12, 2015) (Docket No. 103-7);

(16) the El Nuevo Día newspaper article by C. Quiles titled Firmly Against Coal Ash Disposal(Docket No. 103-8);

(17) the EPA's July 16, 2012 letter to the EQB (Docket No. 90-17);

(18) the EPA publication titled Soil Screen Guidance: Fact Sheet(July 1996) (Docket No. 90-18);

(19) the University of Puerto Rico Department of Chemistry Resolution (May 13, 2015) (Docket No. 103-9).

(Docket No. 90 at pp. 2-4.) Despite uncertainty regarding the relevance of these documents,⁴ the Court will review defendants' documents to determine their appropriateness for judicial notice.

a. Undisputed Public Records

Pursuant to Federal Rule of Evidence 201, the Court already took notice of documents 8 and 10 as authentic public records. See Docket No. 60 at pp. 9-11. Pursuant to the same authority, the Court takes judicial notice of the existence of documents 2, 5, 11, 12, and 17 as public records whose authenticity is not questioned. As with the EPA letter noticed for plaintiff above, defendants' EPA letters, documents 2 and 17, are relevant only as "legally significant event[s]," not for the truth of the statements contained within them. See Torrens, 396 F.3d at 473.

Defendants also request that the Court take judicial notice of document 6, a report by a private company. (Docket No. 90 at p. 3.) The Court declines to do so. Document 6 is produced by a private company, Test America, Inc., not by a government agency or office, and thus, does not qualify for judicial notice as a public or government document.

b. Newspaper Articles

Defendants' documents 7, 13, 14, 15, and 16 are newspaper articles published in El Nuevo Dia , a Puerto Rico newspaper. Newspaper articles, as inadmissible hearsay, are not suitable for judicial notice to establish the truth of the matter asserted, but may be noticed to show that an event was publicized. See U.S. ex rel. Osheroff v. Humana Inc., 776 F.3d 805, 811 n. 4 (11th Cir.2015) ("[C]ourts may take judicial notice of documents such as the newspaper articles at issue here for the limited purpose of determining which statements the documents contain (but not for determining the truth of those statements)."); United States v. Griffin, 525 F.2d 710, 711, (1st Cir.1975) (taking judicial notice of newspaper files to establish that an ongoing event received substantial publicity); People v. McKinney, 258 Mich.App. 157, 670 N.W.2d 254, 258 n. 4 (2003) (excluding newspaper articles as inadmissable...