Berry v. Farmland Industries, Inc.

• Decision Date: 08 September 2000
• Docket Number: No. 99-2337-JWL.,99-2337-JWL.
• Citation: 114 F.Supp.2d 1150
• Parties: Verna BERRY, et al., Plaintiffs, v. FARMLAND INDUSTRIES, INC., Defendant.
• Court: U.S. District Court — District of Kansas

114 F.Supp.2d 1150

Verna BERRY, et al., Plaintiffs, v. FARMLAND INDUSTRIES, INC., Defendant.

No. 99-2337-JWL.

United States District Court, D. Kansas.

September 8, 2000.

Randall K. Rathburn, Charles C. Steincamp, Depew and Gillen, L.L.C., Wichita, KS, 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.

This is the second of four environmental lawsuits recently filed by individuals residing near a refinery in Coffeyville, Kansas, which is owned and operated by defendant Farmland Industries, Inc. (Farmland).¹ In this case, plaintiffs filed suit on August 3, 1999, alleging that Farmland violated emissions and reporting requirements of the Clean Air Act (CAA) with respect to the Coffeyville refinery.² Pursuant to the citizen-suit provision of the CAA, 42 U.S.C. § 7604, plaintiffs seek the imposition of civil monetary penalties, injunctive relief and attorneys' fees and costs. This matter is presently before the court on the issues that remain in Farmland's Motion for Summary Judgment for Lack of Standing on Counts V-VIII (Doc. 11). As discussed in detail below, the court grants Farmland's motion with respect to the claim alleged in paragraph 45, Count V, of plaintiffs' complaint, and the court denies Farmland's motion with respect to the claim alleged in paragraph 49, Count V, of plaintiffs' complaint.

I. General Background

Farmland currently owns and operates a petroleum refinery in Coffeyville, Kansas. At the refinery, Farmland operates certain equipment, including a coal-fired boiler, a Clause Sulfur Recovery Unit (CSRU), a Fluid Catalytic Cracking Unit catalyst regenerator (FCCU), a Radco heater, and sixteen fuel gas combustion devices. The CAA limits the amount of gases that these devices may legally emit into the air. Farmland must monitor emissions from these devices and report emissions that exceed levels set forth in the CAA to the Kansas Department of Health and the Environment (KDHE) on a quarterly basis. See 40 C.F.R. §§ 60.7(c) & 60.13(h).

On August 3, 1999, plaintiffs, residents of Coffeyville who live near the Farmland refinery, filed a complaint alleging that emissions from the refinery exceeded the limits prescribed by the CAA, thereby impairing their property value, quality of life, health, and welfare. Plaintiffs also claimed that Farmland failed to report these excess emissions to the KDHE as required by federal and state regulations. On November 15, 1999, Farmland filed the present motion for summary judgment on Counts V-VIII of plaintiffs' complaint.

II. Legal Standards

Farmland's motion for summary judgment alleges that plaintiffs lack standing to bring Counts V-VIII of their complaint. Standing to sue is an essential component of "what it takes to make a justiciable case." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 118 S.Ct. 1003, 1016, 140 L.Ed.2d 210 (1998) (citing Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) and U.S. Const. Art. III, § 2). Absent standing, a federal court has no authority to act. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). To satisfy Article III's standing requirements, a plaintiff must show (1) that the plaintiff has suffered an actual or threatened injury in fact; (2) that the injury is causally connected to the challenged conduct of the defendant; and (3) that the injury will be redressed by the relief sought. See id. at 704.

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. Steel Co., 118 S.Ct. 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).

III. Procedural Posture

Since the filing of Farmland's motion for summary judgement, the parties and the court have taken steps which have substantially decreased the number of issues that the court must here decide. First, in accordance with an agreement reached by the parties, the court issued an order on December 20, 1999 (Doc. 85) setting forth "which issues in this motion remain pending and which are resolved pursuant to the Court's ruling on summary judgment in Anderson v. Farmland Industries, Inc., 70 F.Supp.2d 1218 (D.Kan.1999)."³ The court found that, pursuant to its holding in Anderson, plaintiffs lacked standing to pursue the claims alleged in Count VI and the claims related to K.A.R. 28-19-202 alleged in Count VII. The court accordingly dismissed those claims. The court also concluded that plaintiffs did not need to respond to three of the arguments asserted in Farmland's summary judgment motion because the resolution of the arguments was "controlled" by the court's Anderson opinion. Essentially, if plaintiffs "demonstrate the first two prongs of the standing inquiry — injury in fact and causation thereof by defendant's alleged Clean Air Act violations" — then, Anderson dictates the following results: (1) plaintiffs have standing to pursue the claims related to K.A.R. 28-19-210(c)(3)(D) alleged in Count VII; (2) plaintiffs have standing to pursue the claims alleged in paragraphs 37, 40, 43, 44, and 48 of Count V; and (3) plaintiffs have standing to pursue the claims alleged in Count VIII. Because the issue of whether or not plaintiffs could demonstrate the first two prongs of standing was unresolved in December, 1999, however, the court could not definitively rule on Farmland's summary judgment motion as it related to these claims at the time.

Then, by letter dated June 28, 2000,⁴ Farmland withdrew from its summary judgment motion its argument "that each individual plaintiff has the burden to demonstrate the first two prongs of the standing inquiry."⁵ As recognized by the parties, (Docs. 18 & 19), the combination of Farmland's withdrawal of this argument and the court's December 20, 1999 order leaves only two related issues for the court to resolve on summary judgment. The first issue is whether plaintiffs have standing to pursue their claim, asserted in paragraph 45 of Count V, that Farmland has violated 40 C.F.R. § 60.7(c)(1) by failing to report the magnitude of the excess emissions from the FCCU. The second issue is whether plaintiffs have standing to pursue their claim, asserted in paragraph 49 of Count V, that Farmland has violated 40 C.F.R. § 60.7(c)(1) by failing to report the magnitude of excess emissions from the CSRU. The court addresses these two issues below.

IV. Discussion

As Farmland no longer asserts that plaintiffs cannot meet the injury and causation prongs of the standing inquiry, the resolution of the two remaining issues hinges on whether plaintiffs have met the redressability prong of the standing inquiry. The Supreme Court recently set forth the standard for redressability in Steel Company v. Citizens for a Better Environment, 523 U.S. 83, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Focusing only on the redressability prong, the Court ruled that to survive a motion for summary judgment a plaintiff must come forward with specific facts from which a reasonable fact finder could conclude either that defendant was in fact violating the Act at the time plaintiffs filed their complaint or that future violations of the Act were imminent. See id. at 1019; Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Applying this standard to the two remaining issues, the court finds below that plaintiffs lack standing to bring the FCCU reporting requirement claim alleged in paragraph 45 of plaintiffs' complaint, but that plaintiffs have standing to bring the CSRU reporting requirement claim alleged in paragraph 49 of plaintiffs' complaint.

A. Alleged Reporting Violations Related to the FCCU

In paragraph 45 of their complaint, plaintiffs allege that "Farmland has violated 40 C.F.R. § 60.7(c)(1).⁶ On certain occasions, including the Fourth Quarter of 1998 and the First Quarter of 1999, Farmland failed to report the magnitude of its excess opacity emissions [from the FCCU], and/or Farmland failed to report each period during which excess opacity emissions occurred." Farmland argues that summary judgment against plaintiffs must be granted with regard to this claim because Farmland corrected its past excess emissions reports before plaintiffs filed suit. Thus, according to Farmland, plaintiffs cannot succeed on the redressability prong because they have not come forward with facts that Farmland was violating the CAA at the time plaintiffs filed suit or that future violations...