Environmental Conservation v. City of Dallas
| Decision Date | 26 April 2007 |
| Docket Number | No. 3-03-CV-2951-BD.,3-03-CV-2951-BD. |
| Citation | 516 F.Supp.2d 653 |
| Parties | The ENVIRONMENTAL CONSERVATION ORGANIZATION, Plaintiff v. The CITY OF DALLAS, Defendant. |
| Court | U.S. District Court — Northern District of Texas |
F. Leighton Durham, III, Kirk L. Pittard, Durham & Pittard, Frederick William Addison, Munsch Hardt Kopf & Harr, Kirsten M. Castaneda, Locke Liddell & Sapp, Dallas, TX, Jan R. Thurman, Law Offices of Jan R. Thurman, Arlington, TX, for Plaintiff.
David E. Howe, Thomas P Perkins, Jr, Dallas City Attorney's Office, James D. Payne, Jean M. Flores,. Michael C. Christman, Guida Slavich & Flores, Dallas, TX, for Defendant.
Defendant the City of Dallas ("the City") has filed a motion for summary judgment in this citizen enforcement action brought under section 505 of the Federal Water Pollution Control Act, also known as the Clean Water Act ("CWA"), 33 U.S.C. § 1251, et seq. For the reasons stated herein, the motion is granted.
The City operates a municipal separate storm sewer system ("MS4") that collects and discharges storm water into the Trinity River and its tributaries. (See Def. MSJ App. at 279). In March 1997, the City obtained a storm water discharge permit from the United States Environmental Protection Agency ("EPA"). (Id. at 39). As required by the permit, the City created and implemented a comprehensive storm water pollution and management program ("SWMP") designed to reduce the discharge of pollutants into the MS4. (Id. at 71-272). The permit became effective on May 1, 1997 and expired at midnight on April 30, 2002. (Id. at 39). A renewal permit was issued on February 22, 2006 and remains in effect today. (Id. at 279).1
On December 9, 2003, The Environmental Conservation Organization ("ECO"), a Texas non-profit environmental watch group, sued the City in federal district court for CWA violations ("the ECO Litigation"). Succinctly stated, ECO alleges that the City has all but ignored its obligations under the SWMP by failing to develop and implement an effective program to monitor and reduce the discharge of pollutants into the MS4. (See Plf. Orig. Compl. at 8, ¶¶ 29-34).2 A list of more than 150 specific violations of Sections 4.1-4.20 of the SWMP is included as an attachment to ECO's complaint. .
On February 6, 2004, the EPA issued a Compliance Order citing the City for multiple violations of its SWMP, including many of the violations made the basis of the ECO Litigation. (Def. MSJ App. at 610-52). Among the violations identified in the Compliance Order are:
SWMP
Task or
Subtask No. Description of Alleged Violation
4.8.1 Failure to complete the following required
4.8.2 individual tasks as scheduled to reduce to
the maximum extent practicable, pollutants
discharged from the MS4 associated
with the application of pesticides, herbicides
and fertilizer, which include controls
such as educational activities, permits, and
certifications for applications in public
right-of-ways and at municipal facilities
Individual Task Completion Date
Task 1 Years 1-5 (1998-2002)
Task 2 Years 1-5 (1998-2002)
4.10.2 Failure to complete the following required
4.10.3 individual tasks as scheduled to conduct
4.10.4 ongoing field screening activities
4.10.6
4.10.9 Individual Task Completion Date
Task 2 Years 1-2 (1998-1999)
Task 3 Years 1-5 (1998-2002)
Task 4 Years 1-5 (1998-2002)
Task 6 Years 1-2 (1998-1999)
Task 9 Years 1-5 (1998-2002)
4.12.1.1 Failure to complete the following required
4.12.1.2 individual tasks as scheduled to prevent
4.12.1.3 contain, and respond to spills that may
4.12.1.4 discharge and flow into the MS4.
4.12,1.5
4.12.1.6 Individual Task Completion Date
4.12.1.7 Task 1
4.12.1.8 Subtask 1 Years 2-5 (1999-2002)
4.12.1.9 Subtask 2 Years 2-5 (1999-2002)
4.12.3.1 Subtask 3 Years 2-5 (1999-2002)
4.12.3.2 Subtask 4 Years 2-5 (1999-2002)
Subtask 5 Years 2-6 (1999-2002)
Subtask 6 Years 2-5 (1999-2002)
Subtask 7 Years 2-5 (1999-2002)
Subtask 8 Years 2-5 (1999-2002)
Subtask 9 Years 2-5 (1999-2002)
Task 3
Subtask 1 Year 3 (2000)
Subtask 2 Years 3-5 (2000-2002)
4.14.3.2 Failure to complete the following required
4.14.3.3 individual tasks as scheduled to implement
educational activities, public information
activities, and other activities to facilitate
the proper management and disposal of
used oil and toxic materials.
Individual Task Completion Date
Task 3
Subtask 2 Years 1-S (1998-2002)
Subtask 3 Years 1-5 (1998-2002)
4.15.2 Failure to complete the following required
individual tasks as scheduled with regard
to programs and/or controls which are currently
implemented to limit infiltration of
seepage from the municipal sanitary sewers
to the 5154.
Individual Task
Task 2
Failure to monitor and test for the presence
of wastewater I/I and overflows and
direct detected problem areas to the Water
Utilities Department for identification
and correction under the NPDES Permit
No. TX0047830, as specified in the revised
SWMP.
4.19.5 Failure to complete the following required
4.19.6 individual tasks, as scheduled, to mitigate
the adverse environmental impact of storm
water runoff by developing Best Management
Practice (BW) requirements.
Individual Task Completion Date
Task 5 Years 1-5 (1998-2002)
Task 6 Years 1-5 (1998-2002)
(Id. at 631, ¶ 57 & 640-46). Following protracted negotiations, the City and the EPA settled their differences and entered into a Consent Decree which resolves, inter alia, "the violations alleged in the Compliance Order through the date of lodging." (Id. at 356, ¶ 71). Under the terms of the settlement, the City agreed to pay $800,000 in civil penalties, to undertake two supplemental environmental projects at a cost of at least $1.2 million, to establish an environmental management system, to adhere to minimum staffing and inspection requirements, and to pay stipulated penalties for future violations of the CWA. (Id. at 744-50, 755). On May 10, 2006, the United States of America, joined by the State of Texas, filed suit to obtain judicial approval of their settlement with the City and entry of the Consent Decree ("the EPA Litigation"). Although ECO did not oppose entry of the Consent Decree, it did complain to the EPA and Texas authorities that the terms of the settlement were inadequate in various respects. (Id. at 657-60). On August 28, 2006, the court determined that the. Consent Decree was fair, reasonable, and consistent with the purposes of the CWA, and entered the decree as its final judgment in the EPA Litigation. (See id. at 774).
The City now moves for summary judgment in the ECO Litigation on the ground that the Consent Decree is res judicata of all claims asserted in that case.3 The issues have been fully briefed by the parties and the motion is ripe for determination.
Summary judgment is proper when there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. FED. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Where, as here, a party seeks summary judgment on an affirmative defense, the movant must establish "beyond peradventure all of the essential elements of the claim or defense to warrant judgment in his favor." Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir.1986) (emphasis in original). The burden then shifts to the non-movant to show that summary judgment is not proper. Duckett v. City of Cedar Park, 950 F.2d 272, 276 (5th Cir.1992). The parties may satisfy their respective burdens by tendering depositions, affidavits, and other competent evidence. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 506 U.S. 825, 113 S.Ct. 82, 121 L.Ed.2d 46 (1992). All evidence must be viewed in the light most favorable to the party opposing the motion. Rosado v. Deters, 5 F.3d 119, 122 (5th Cir.1993).
The rule of res judicata, or claim preclusion, "bars the litigation of claims that either have been litigated or should have been raised in an earlier suit." Test Masters Educational Services, Inc. v. Singh, 428 F.3d 559, 571 (5th Cir.2005), cert. denied, ___ U.S. ___, 126 S.Ct. 1662, 164 L.Ed.2d 397 (2006). The test for res judicata has four elements: (1) the parties in the subsequent action are identical to, or in privity with, the parties in the prior action; (2) the judgment in the prior case was rendered by a court of competent jurisdiction; (3) there has been a final judgment on the merits; and (4) the same claim or cause of action is involved in both suits. Id.; see also Ellis v. Amex Life Insurance Co., 211 F.3d 935, 937 (5th Cir, 2000). Although the Fifth Circuit has never considered whether res judicata applies to a citizen enforcement action under the CWA,...
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Environmental Conservation v. City of Dallas
...precedents from other circuits had applied res judicata to citizen suits under similar circumstances. Envtl. Conservation Org. v. City of Dallas, 516 F.Supp.2d 653, 657 (N.D.Tex.2007). The district court did not reach the alternative argument regarding mootness. ECO appealed II. Discussion ......