Glazer v. American Ecology Environmental Services, 6:94 CV 708.

Decision Date13 June 1995
Docket NumberNo. 6:94 CV 708.,6:94 CV 708.
Citation894 F. Supp. 1029
PartiesPhyllis GLAZER and Mothers Organized To Stop Environmental Sins, Plaintiffs, v. AMERICAN ECOLOGY ENVIRONMENTAL SERVICES CORPORATION, f.k.a. Gibraltar Chemical Resources, Inc., et al., Defendants.
CourtU.S. District Court — Eastern District of Texas

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Michael Douglas Richardson, Arnold White & Durkee, Austin, TX, for plaintiffs.

Herschel Tracy Crawford, Ramey & Flock, Tyler, TX, Rosemary Sage Moore, Ramey & Flock, Tyler, TX, for defendant.

MEMORANDUM OPINION

JUSTICE, District Judge.

I. Background

Plaintiffs, Phyllis Glazer and Mothers Organized to Stop Environmental Sins ("M.O.S.E.S."), filed an original complaint against defendant Gibraltar Chemical Resources, Inc.1 ("Gibraltar") seeking civil penalties, as well as declaratory and injunctive relief for alleged violations of the Clean Air Act ("CAA"), 42 U.S.C. § 7401 et seq., and the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6901 et seq. Plaintiffs amended their complaint on January 3, 1995. The first amended complaint names two additional defendants: American Ecology Corporation ("AEC") and American Ecology Services Corporation ("AESC").

The first amended complaint contains five claims for relief. The first two claims for relief allege CAA violations. In this regard, plaintiffs allege that the defendants are in violation of numerous provisions of Texas' State Implementation Plan ("SIP"), the New Source Performance Standards ("NSPS"), and the National Emission Standards for Hazardous Air Pollutants ("NESHAP"). Claims for relief three and four allege RCRA violations, wherein plaintiffs claim that the defendants are in violation of various federal and state hazardous waste requirements. In their final claim for relief, the plaintiffs contend that the defendants' operation of a facility in Winona, Texas, creates an imminent and substantial endangerment to health or the environment.

On December 30, 1994, defendant Gibraltar moved for judgment on the pleadings. Attached to the motion were several documents which were not included in the pleadings. Consequently, the parties were notified that the motion for judgment on the pleadings would be treated as a motion for summary judgment, in accordance with Fed. R.Civ.P. 12(c). Order, January 18, 1995. Plaintiffs and defendant Gibraltar were afforded twenty days to submit evidence in support of their respective positions. In addition to submitting evidence, they presented supplemental briefs concerning the issues. These filings having been made, the issues raised therein are ripe for adjudication.

II. Summary Judgment Standard

Summary judgment is proper under Fed. R.Civ.P. 56(c), "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 judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The substantive law underlying the claims in issue identifies which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). When assessing a motion for summary judgment, the court must make all factual inferences in favor of the party opposing the motion. Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Hansen v. Continental Ins. Co., 940 F.2d 971, 975 (5th Cir.1991). Often, summary judgment allows the court to dispose entirely of one or more claims within the case. However, a court may also grant partial summary judgment by identifying any undisputed issues of material fact. Fed.R.Civ.P. 56(d). Such facts are then deemed established for trial. See Belinsky v. Twentieth Restaurant, 207 F.Supp. 412 (S.D.N.Y.1962).

III. Analysis

Defendant Gibraltar raises various alternative grounds for summary judgment, specifically: (1) that plaintiffs' CAA and RCRA claims are precluded by the agreed final judgment in Texas v. Gibraltar; (2) that plaintiffs' CAA and RCRA claims are barred, to the extent that they allege wholly past violations; (3) that plaintiffs' claim for relief premised on 42 U.S.C. § 6972(a)(1)(B) is an impermissible collateral attack on a prior permitting decision; (4) that Texas' hazardous waste program may not be enforced under RCRA; (5) that Texas' SIP and hazardous waste programs may not be enforced, because they exceed the scope of the CAA and RCRA, respectively; (6) that certain CAA and RCRA claims are barred under the terms of the statutes, in that proper notice was not given; and (7) that the five year statute of limitations bars several of the claims.

A. Prior State Enforcement Action

Plaintiffs seek to maintain a "citizen suit" against the defendants under the CAA. The CAA provides, in relevant part:

Any person may commence a civil action on his own behalf (1) against any person ... who is alleged to have violated (if there is evidence that the alleged violation has been repeated) or to be in violation of (A) an emission standard or limitation under this Act or (B) an order issued by the Administrator or a State with respect to such a standard or limitation....

42 U.S.C. § 7604(a). Additionally, plaintiffs rely on RCRA's citizen suit provision, 42 U.S.C. § 6972(a), to assert jurisdiction. Section 6972(a) states, in relevant part:

Any person may commence a civil action on his own behalf (1)(A) against any person ... who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this Act ... or (B) against any person ... including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment....

42 U.S.C. § 6972(a).

Congress intended that "citizen groups are not to be treated as nuisances or troublemakers but rather as welcomed participants in the vindication of environmental interests." See Friends of the Earth v. Carey, 535 F.2d 165, 172 (2d Cir.1976). Thus, the citizen suit provisions have taken broad steps to facilitate the individual citizen's role in the enforcement of federal environmental statutes. See Natural Resources Defense Council v. Train, 510 F.2d 692, 700 (D.C.Cir. 1974). However, as the Supreme Court explained in Gwaltney of Smithfield v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 60-61, 108 S.Ct. 376, 383-384, 98 L.Ed.2d 306 (1987), Congress intended citizen suits to play an "interstitial," rather than "potentially intrusive" role. Hence, a citizen suit is proper when the state and federal authorities have declined to utilize their enforcement authority. See Arkansas Wildlife Federation v. ICI Americas, Inc., 29 F.3d 376, 380 (8th Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1094, 130 L.Ed.2d 1062 (1995); see also Maryland Waste Coalition v. SCM Corp., 616 F.Supp. 1474, 1483 (M.D.Md.1985).

Recognizing the obvious danger that unlimited citizen suits would overburden the courts, Congress included various restrictions. See Friends of the Earth v. Consolidated Rail Corp., 768 F.2d 57, 63 (2nd Cir. 1985). For instance, the CAA statutory grant of jurisdiction is limited by section 7604(b)(1)(B), which prohibits the commencement of an action, "if the Administrator or the State has commenced and is diligently prosecuting a civil action in a court of the United States or a State to require compliance with the standard, limitation, or order...." 42 U.S.C. § 7604(b)(1)(B) (emphasis added).

Similarly, RCRA limits a plaintiff's right to bring a citizen suit against a defendant in certain circumstances. A citizen may not maintain an action against a defendant under section 6972(a)(1)(A) ("a permit violation" claim), when the "State has commenced and is diligently prosecuting a civil ... action in a court of ... a state to require compliance with such permit, standard, regulation, condition, requirement, prohibition, or order." 42 U.S.C. § 6972(b)(1)(B). Moreover, a citizen is prohibited from bringing suit under section 6972(a)(1)(B) ("an imminent and substantial endangerment" claim), when the "State, in order to restrain or abate acts or conditions which may have contributed or are contributing to the activities which may present the alleged endangerment, has commenced and is diligently prosecuting an action under subsection (a)(1)(B)." 42 U.S.C. § 6972(b)(2)(C).

Defendant Gibraltar argues that Texas v. Gibraltar Chemical Resources, Inc., No. 92-2671-CA, litigated in the District Court of Smith County, 241st Judicial District of Texas, bars this citizen suit. To properly analyze this contention, it must be determined whether Texas v. Gibraltar was commenced and diligently prosecuted to require compliance with the same CAA standard, limitation, or order and the same RCRA permit, standard, regulation, condition, requirement, prohibition, or order involved in the instant citizen suit. Moreover, it must be determined whether Texas v. Gibraltar was an action "under subsection (a)(1)(B)," so as to bar the imminent and substantial endangerment claim.

In order to determine the merit of defendant Gibraltar's contentions, a two-part inquiry is required. See Conn. Fund for the Environment v. Contract Plating Co., Inc., 631 F.Supp. 1291, 1293 (D.Conn.1986). First, it must be ascertained whether an action by the state of Texas was pending in state court on the date this citizen suit was commenced. Examining the undisputed facts in this action, it is clear the state of Texas was actually prosecuting Texas v....

To continue reading

Request your trial
26 cases
  • Mylonakis v. Georgios M.
    • United States
    • U.S. District Court — Southern District of Texas
    • 3 Diciembre 2012
    ...the present or the future, not in the past"), superseded by statute on other grounds as stated in Glazer v. American Ecology Environmental Services Corp., 894 F.Supp. 1029 (E.D. Tex. 1995)). Like the citizen plaintiff in Steel Co. who sought civil penalties payable to the United States for ......
  • Little v. Louisville Gas & Elec. Co.
    • United States
    • U.S. District Court — Western District of Kentucky
    • 16 Julio 2014
    ...amended the Clean Air Act ... explicitly to allow citizen suits for purely historical violations”); Glazer v. Am. Ecology Envtl. Servs. Corp., 894 F.Supp. 1029, 1037–38 (E.D.Tex.1995) (finding that plaintiffs may maintain CAA suits based on allegations that past violations were repeated). T......
  • People v. Thoro Products Co., Inc.
    • United States
    • Colorado Supreme Court
    • 19 Mayo 2003
    ...in both the civil context, see 28 U.S.C. § 2462 (five-year statute of limitation for civil actions); Glazer v. American Ecology Envtl. Servs., 894 F.Supp. 1029, 1044 (E.D.Tex.1995), and the criminal context. See 18 U.S.C. § 3282 (five-year statute of limitation period for criminal proceedin......
  • Hackensack Riverkeeper v. Delaware Ostego Corp.
    • United States
    • U.S. District Court — District of New Jersey
    • 11 Septiembre 2006
    ..."in lieu of the federal RCRA Subchapter III hazardous waste program under 42 U.S.C. § 6926(b)." Glazer v. American Ecology Environmental Services Corp., 894 F.Supp. 1029 (E.D.Tex.,1995); Cox v. City of Dallas, Texas 1999 WL 33756552 (N.D.Tex. Aug.4,1999); Fallowfield Development Corp. v. St......
  • Request a trial to view additional results
2 books & journal articles
  • Addressing the Problem: The Judicial Branches
    • United States
    • Environmental justice: legal theory and practice. 4th edition
    • 20 Febrero 2018
    ...and after the complaint was iled.”6 Env’t Tex. , 66 F. Supp. 3d at 894; see also Glazer v. American Ecology Envtl. Servs. Corp. , 894 F. Supp. 1029, 1037-38 (E.D. Tex. 1995). Accordingly, because an “emission standard or limitation” includes any “standard,” “limitation,” “schedule,” “term,”......
  • Separate but equal: double jeopardy and environmental enforcement actions.
    • United States
    • Environmental Law Vol. 28 No. 1, March 1998
    • 22 Marzo 1998
    ...1993 U.S. App. Lexis 35911, 24 Envtl. L. Rep. 20122, cert. denied, 513 U.S. 811 (1994); Glazer v. American Ecology Envtl. Servs. Corp., 894 F. Supp. 1029, 1041 (E.D. Tex. 1995) (holding requirements of Texas hazardous waste program not broader in scope than the federal requirements were eff......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT