Anderson v. Farmland Industries, Inc.

• Decision Date: 22 September 1999
• Docket Number: No. 98-2499-JWL.,98-2499-JWL.
• Citation: 70 F.Supp.2d 1218
• Parties: Manuel ANDERSON et al., Plaintiffs, v. FARMLAND INDUSTRIES, INC., Defendant.
• Court: U.S. District Court — District of Kansas

70 F.Supp.2d 1218

Manuel ANDERSON et al., Plaintiffs, v. FARMLAND INDUSTRIES, INC., Defendant.

No. 98-2499-JWL.

United States District Court, D. Kansas.

September 22, 1999.

COPYRIGHT MATERIAL OMITTED

Randall K. Rathbun, Charles C. Steincamp, Depew and Gillen, L.L.C., Wichita, KS, James B McMath, Samuel E Ledbetter, Hank Bates, McMath, Vehik, Drummond, Harrison & Ledbetter, Little Rock, AR, for plaintiffs.

Terry W. Schackmann, Michael F. Saunders, Barry L. Pickens, Clayton L. Barker Spencer, Fane, Britt & Browne, Kansas City, MO, for defendant.

MEMORANDUM AND ORDER

LUNGSTRUM, District Judge.

On November 2, 1998, plaintiffs filed suit against defendant Farmland Industries, Inc. pursuant to the citizen-suit provision of the Clean Air Act, 42 U.S.C. § 7604, alleging emissions and reporting violations at Farmland's refinery in Coffeyville, Kansas.¹ Plaintiffs, a group of individuals living near the refinery, seek the imposition of civil monetary penalties, injunctive relief, and attorneys' fees and costs. This matter is presently before the Court on plaintiffs' renewed motion for partial summary judgment on standing and the fifth cause of action (doc. # 55) and defendant's renewed motion for summary judgment on lack of standing for Counts V, VI, IX, and X (doc. # 51).

As set forth in more detail below, plaintiffs' renewed motion for partial summary judgment is granted in part and denied in part. Similarly, defendant's renewed motion for summary judgment is granted in part and denied in part.

I. Facts²

Farmland currently owns and operates a refinery in Coffeyville, Kansas. At the refinery, Farmland operates certain equipment, including a coal-fired boiler, a Clause sulfur recovery unit, an FCCU catalyst regenerator, a Radco heater, and sixteen fuel gas combustion devices. Farmland has installed continuous emissions monitoring (CEM) equipment on the Radco heater, the Clause sulfur recovery unit, and the FCCU catalyst regenerator. Farmland has not installed monitoring equipment on any of the sixteen fuel gas combustion devices. Rather, these devices share a common fuel gas source with the Radco heater and Farmland monitors emissions from the Radco heater as a representative source to determine emissions from them.

Farmland must report the magnitude of emissions that exceed levels set forth in the Clean Air Act (CAA) to the Kansas Department of Health and the Environment (KDHE) on a quarterly basis. The extent of excess emissions must be reported in parts per million (ppm) in quarterly reports pursuant to 40 C.F.R. §§ 60.7(c) & 60.13(h). In the quarterly excess emissions reports for the fuel gas combustion devices and the Clause sulfur recovery unit submitted to KDHE for quarters in 1996-98, Farmland identified the magnitude of excess sulfur dioxide emissions in pounds, rather than in ppm. After the filing of this lawsuit, Farmland filed amended quarterly reports with the KDHE, giving the amount of sulfur in ppm for the 1996-98 reports. In the quarterly excess emissions reports for the Clause sulfur recovery unit submitted to KDHE for quarters in 1993-96, Farmland did not report the magnitude of excess sulfur dioxide in any units. After the filing of this lawsuit, Farmland filed amended quarterly reports with the KDHE, listing the magnitude of excess sulfur dioxide for the 1995-96 quarters. However, Farmland has not amended the 1993-94 quarterly reports because Farmland has not retained the data required to make such amendments.³ In its 1st Quarter 1999 excess emissions report for the FCCU catalyst regenerator, Farmland did not report the magnitude of excess opacity emissions.

Under K.A.R. 28-19-202 & 28-19-210(c)(3)(d), Farmland is required to report air emission inventories to the KDHE annually. These reports are used to calculate fees owed to the KDHE for excess sulfur dioxide emissions. Farmland's air emission inventory reports for 1994-96 did not account for sulfur dioxide emissions from emergency releases.

In the five years prior to plaintiffs' filing of their complaint, the Radco heater at Farmland's Coffeyville Refinery discharged sulfur dioxide in amounts greater than the 20 ppm emission limit, set forth in 40 C.F.R. § 60.104(a)(1), on 232 days. Farmland reported such occurrences to the KDHE in the Quarterly Emissions Reports for the Radco heater from the 4th Quarter 1993 until the 3rd Quarter 1998. Since the filing of plaintiffs' complaint, the Radco heater has discharged gas containing greater than 20 ppm sulfur dioxide on twenty days. Each of the sixteen fuel gas combustion devices also discharged gas containing greater than 20 ppm sulfur dioxide on the same twenty days. During thirty-seven hours on January 2-4, 1999, the fuel gas combustion devices discharged approximately 25,759 pounds of sulfur dioxide into the atmosphere over and above 20 ppm. During a seven-hour period on December 22, 1998, the fuel gas combustion devices discharged approximately 3,118.4 pounds of sulfur dioxide into the atmosphere over and above 20 ppm.

In the five years prior to plaintiffs' filing of their complaint, the FCCU catalyst regenerator at Farmland's Coffeyville Refinery discharged excess opacity in amounts greater than the 30% emission limit, set forth in 40 C.F.R. § 60.102(a)(2), on 396 days. Farmland reported such occurrences to the KDHE in the Quarterly Emissions Reports for the FCCU catalyst regenerator from the 4th Quarter 1993 until the 3rd Quarter 1998. Since the filing of plaintiffs' complaint, the FCCU catalyst regenerator has discharged gas exhibiting greater than 30% opacity on ten days.

In the five years prior to plaintiffs' filing of their complaint, the Clause sulfur recovery unit discharged sulfur dioxide in amounts greater than the 250 ppm emission limit, set forth in 40 C.F.R. § 60.104(a)(2)(l), on 254 days. Farmland reported such occurrences to the KDHE in the Quarterly Emissions Reports for the Clause sulfur recovery unit from the 4th Quarter 1993 until the 3rd Quarter 1998. Since the filing of plaintiffs' complaint, the Clause sulfur recovery unit has discharged gas containing greater than 250 ppm sulfur dioxide on six days.

Farmland's discharge of sulfur dioxide and particulate matter drifted over plaintiffs' homes. These excess emissions have interfered with plaintiffs' use and enjoyment of their homes and property. They were unsightly, smelled bad, and impaired the quality of the air that plaintiffs breathed.

II. The Standing Inquiry

A. Applicable Standards

Both parties have moved for summary judgment on the issue of whether plaintiffs have standing to bring this action. The Constitution extends the "judicial power" of the federal courts of the United States only to "Cases" and "Controversies." Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 118 S.Ct. 1003, 1016, 140 L.Ed.2d 210 (1998) (citing U.S. Const. art. III, § 2, cl. 1). Standing to sue is an essential component of "what it takes to make a justiciable case." Id. (citing Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990)). The "irreducible constitutional minimum of standing" contains three requirements: (1) the plaintiff must have suffered an actual or threatened injury in fact; (2) there must be a causal connection between the injury and the defendant's complained-of conduct; and (3) the injury must be redressable by the relief sought. See id. at 1016-17.

This triad of injury in fact, causation, and redressability comprises the core of Article III's case-or-controversy requirement, and the party invoking federal jurisdiction bears the burden of establishing its existence. Id. at 1017 (citing FW/ PBS, Inc. v. Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990)). Here, then, plaintiffs have the burden of establishing that they have standing to bring this action. As the Supreme Court explained in Lujan v. Defenders of Wildlife:

Since [the elements of standing] are not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation. At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we "presum[e] that general allegations embrace those specific facts that are necessary to support the claim." In response to a summary judgment motion, however, the plaintiff can no longer rest on such "mere allegations," but must "set forth" by affidavit or other evidence "specific facts" which for purposes of the summary judgment motion will be taken to be true. And at the final stage, those facts (if controverted) must be "supported adequately by the evidence adduced at trial."

504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citations omitted).

B. Discussion

1. Count V: Excess Emissions Violations — the Radco heater, the Clause sulfur recovery unit, and the FCCU catalyst regenerator

In plaintiffs' motion for summary judgment, plaintiffs maintain that the uncontroverted facts demonstrate that plaintiffs have suffered injuries in fact; plaintiffs' injuries are traceable to defendant's conduct; and plaintiffs' injuries are redressable through injunctive relief by this court. Defendant contests each of these assertions in its motion for summary judgment. As set forth below, the Court finds that plaintiffs have standing to bring this claim.

Farmland's first response to plaintiffs' motion for summary judgment is that plaintiffs have failed to establish adequately the first two prongs of the standing inquiry — injury in fact and causation. As plaintiffs highlight in their papers, however, Farmland has conceded certain facts material to this issue. In plaintiffs' Statement of Uncontroverted Facts, plaintiffs asserted the following:

Farmland's excess...