Doe v. Browner

• Decision Date: 30 August 1995
• Docket Number: No. CV-S-94-795-PMP (RLH).,CV-S-94-795-PMP (RLH).
• Citation: 902 F. Supp. 1240
• Parties: John DOE I; et al., Plaintiffs, v. Carol M. BROWNER, Administrator of the United States Environmental Protection Agency, Defendant.
• Court: U.S. District Court — District of Nevada

902 F. Supp. 1240

John DOE I; et al., Plaintiffs, v. Carol M. BROWNER, Administrator of the United States Environmental Protection Agency, Defendant.

No. CV-S-94-795-PMP (RLH).

United States District Court, D. Nevada.

August 30, 1995.

COPYRIGHT MATERIAL OMITTED

Jonathan Turley, Environmental Crimes Project, National Law Center, Washington, DC, for plaintiffs.

Kathryn E. Landreth, U.S. Attorney, J. Gregory Damm, Asst. U.S. Attorney, Lois J. Schiffer, Asst. Atty. Gen., Russell M. Young, Trial Attorney, U.S. Dept. of Justice, Environmental & Natural Resources Division, Washington, DC, for defendant.

ORDER

PRO, District Judge.

I. BACKGROUND

This is a citizen suit brought under Section 7002 of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6972. Plaintiffs are all former workers at a classified facility operated by the United States Air Force near the Groom Dry Lake Bed in Nevada that is the subject of this litigation. Because of its classified nature, the Air Force facility is referred to for purposes of this litigation as "the operating location near Groom Lake."

In this action, Plaintiffs claim that the Air Force has been operating this facility in violation of several provisions of RCRA, and that Defendant Carol M. Browner, the Administrator ("Administrator") of the United States Environmental Protection Agency ("EPA"), has failed to perform her statutory duty to enforce RCRA against the Air Force.¹ Specifically, Plaintiffs contend that the EPA violated RCRA section 3007(c), 42 U.S.C. § 6927(c), by failing to conduct a RCRA inspection at the operating location near Groom Lake. See Plaintiffs' Complaint (# 4) ¶¶ 36-38. Plaintiffs also contend that the EPA violated RCRA sections 3012(b) and 3016(b), 42 U.S.C. §§ 6933(b) and 6937(b), by failing to notify the State of Nevada and the Air Force that they had not provided the EPA with adequate inventories of environmental information regarding the operating location near Groom Lake, and by failing to carry out an inventory program there. See Plaintiffs' Complaint (# 4) ¶¶ 43-44, 33-34. Further, Plaintiffs claim that the EPA violated RCRA sections 3007(c) and 3016(a), 42 U.S.C. §§ 6927(c), 6937(a), by failing to make available to the public RCRA inspection and inventory information regarding the operating location near Groom Lake. See Plaintiffs' Complaint (# 4) ¶¶ 14, 20 and 40.

Plaintiffs seek a declaration that the Administrator and the EPA have failed to perform acts or duties required by RCRA and that the Administrator and the EPA continue in their failure to perform these acts. As a result, Plaintiffs seek an injunction against the Administrator and the EPA prohibiting them from violating RCRA's mandatory requirements. Plaintiffs also seek the costs of litigation pursuant to RCRA Section 7002(e), 42 U.S.C. § 6972(e), and other relief this Court finds to be appropriate and just.

Presently before the Court is a Motion for Summary Judgment (# 47) filed by the Administrator on May 22, 1995, in which she argues that Plaintiffs' claims are now moot. The Administrator filed a Statement of Uncontested Material Facts (# 66) in support of her Motion for Summary Judgment on June 23, 1995. On June 26, 1995, Plaintiffs filed a Motion for a Continuance to Defendant's Motion for Summary Judgment (# 67) consolidated with Plaintiffs' Memorandum in Opposition to Defendant's Motion for Summary Judgment (# 67). On July 5, 1995, Plaintiffs filed a Motion to Strike Portions of Defendant's Statement of Uncontested Material Facts and Portions of Supporting Affidavits (# 73). In response, the Administrator filed a Reply Memorandum in Support of Defendant's Motion for Summary Judgment and Memorandum in Opposition to Plaintiffs' Motion for a Continuance (# 85) on July 14, 1995, and a Memorandum in Opposition to Plaintiffs' Motion to Strike (# 89) on July 20, 1995. Thereafter, Plaintiffs filed their own Statement of Contested and Uncontested Material Facts in Opposition to the Motion for Summary Judgment (# 111) along with Sealed Affidavits (# 112) in support of their Statement on July 28, 1995. On August 3, 1995, Plaintiffs filed a Reply Memorandum in Support of the Motion for Continuance (# 121).

On July 12, 1995, Defendant also filed a Motion for Protective Order Staying Discovery (# 82) in this matter pending this Court's ruling on Defendant's Motion for Summary Judgment (# 47). Because Defendant's Motion for Summary Judgment will be ruled upon in this Order, Defendant's Motion for Protective Order Staying Discovery (# 82) will be denied as moot.

On August 11, 1995, this Court conducted an in camera inspection of the classified "RCRA Inspection Report" and "Air Force Inventory Report" referenced in the Administrator's Motion for Summary Judgment. After reviewing these documents and after considering the parties' respective positions as set forth in their briefs, the Court concludes that the Administrator's Motion for Summary Judgment should be granted in part and denied in part.

II. STANDARD OF REVIEW

Pursuant to Federal Rule of Civil Procedure 56, summary judgment is proper "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 has the initial burden of showing the absence of a genuine issue of material fact. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir.1982). Once the movant's burden is met by presenting evidence which, if uncontroverted, would entitle the movant to a directed verdict at trial, the burden then shifts to the respondent to set forth specific facts demonstrating that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). If the factual context makes the respondent's claim implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-58, 89 L.Ed.2d 538 (1986); California Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir.1987), cert. denied, 484 U.S. 1006, 108 S.Ct. 698, 699, 98 L.Ed.2d 650 (1988).

If the party seeking summary judgment meets this burden, then summary judgment will be granted unless there is significant probative evidence tending to support the opponent's legal theory. First Nat'l Bank v. Cities Service Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 1593, 20 L.Ed.2d 569 (1968); Commodity Futures Trading Com. v. Savage, 611 F.2d 270 (9th Cir.1979). Parties seeking to defeat summary judgment cannot stand on their pleadings once the movant has submitted affidavits or other similar materials. Affidavits that do not affirmatively demonstrate personal knowledge are insufficient. British Airways Bd. v. Boeing Co., 585 F.2d 946, 952 (9th Cir.1978), cert. denied, 440 U.S. 981, 99 S.Ct. 1790, 60 L.Ed.2d 241 (1979). Likewise, "legal memoranda and oral argument are not evidence and do not create issues of fact capable of defeating an otherwise valid motion for summary judgment." Id.

A material issue of fact is one that affects the outcome of the litigation and requires a trial to resolve the differing versions of the truth. See Admiralty Fund v. Hugh Johnson & Co., 677 F.2d 1301, 1305-06 (9th Cir. 1982); Admiralty Fund v. Jones, 677 F.2d 1289, 1293 (9th Cir.1982).

All facts and inferences drawn must be viewed in the light most favorable to the responding party when determining whether a genuine issue of material fact exists for summary judgment purposes. Poller v. Columbia Broadcasting Sys., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962). After drawing inferences favorable to the respondent, summary judgment will be granted only if all reasonable inferences defeat the respondent's claims. Admiralty Fund v. Tabor, 677 F.2d 1297, 1298 (9th Cir.1982).

The trilogy of Supreme Court cases cited above establishes that "summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Celotex, 477 U.S. at 327, 106 S.Ct. at 2555 (quoting Fed.R.Civ.P. 1). See also Avia Group Int'l, Inc. v. L.A. Gear California, Inc., 853 F.2d 1557, 1560 (Fed. Cir.1988).

III. DISCUSSION

A. The Resource Conservation and Recovery Act

The Resource Conservation and Recovery Act establishes a "cradle-to-grave" regulatory scheme for the treatment, storage and disposal of solid and hazardous wastes. RCRA's stated purpose is to protect the environment from the dangers associated with solid and hazardous wastes. 42 U.S.C. § 6901(b). One of the mechanisms provided for by RCRA to control solid and hazardous waste is the citizen suit. A citizen suit under 42 U.S.C. § 6972(a)(2) permits a plaintiff to bring a civil action "against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator." In this case, Plaintiffs allege that the EPA has failed to perform certain non-discretionary duties allegedly created by RCRA.

The Administrator contends that summary judgment should be granted in her favor because Plaintiffs' claims are now moot. The Administrator argues that since the commencement of this suit, the EPA has performed a RCRA inspection at the operating location near Groom Lake. Furthermore, the Administrator contends that the Air Force has provided the EPA...