Riverkeeper v. Taylor Energy Co., Civil Action No. 12–337.

• Court: United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
• Citation: 117 F.Supp.3d 849
• Docket Number: Civil Action No. 12–337.
• Parties: Apalachicola RIVERKEEPER, et al., Plaintiffs v. TAYLOR ENERGY COMPANY L.L.C., Defendant.
• Decision Date: 29 July 2015

117 F.Supp.3d 849

Apalachicola RIVERKEEPER, et al., Plaintiffs
v.
TAYLOR ENERGY COMPANY L.L.C., Defendant.

Civil Action No. 12–337.

United States District Court, E.D. Louisiana.

Signed July 29, 2015.
Filed July 30, 2015.

117 F.Supp.3d 851

Machelle Rae Lee Hall, Adam Babich, Morgan N. Embleton, Tulane Environmental Law Clinic, New Orleans, LA, Heather A. Govern, Boston, MA, for Plaintiffs.

Paul J. Goodwine, Taylor P. Mouledoux, Looper Goodwine & Ballew P.C., New Orleans, LA, Bret A. Sumner, Malinda Morain, Michael L. Beatty, William Ernest Sparks, Beatty & Wozniak, P.C., Denver, CO, for Defendant.

ORDER

SUSIE MORGAN, District Judge.

Before the Court is Taylor's Motion for Summary Judgment on RCRA.¹ Taylor seeks summary judgment on two grounds. First, Taylor argues the RCRA does not apply to this action as a matter of law. Second, and in the alternative, Taylor argues the summary judgment record is clear that Plaintiffs cannot prevail on the merits. The Court addresses these arguments seriatim.

I. Applicability of RCRA

Taylor argues the RCRA is not the proper statute for challenging the offshore oil discharges alleged in this case. Taylor offers three arguments in support. First, "the terminology and specifics of RCRA make clear that it is not designed for the purposes that [Plaintiffs] seek to utilize it in this case."² As a preliminary matter, it is unclear whether Taylor argues the RCRA does not apply as a matter of law or instead attempts to invoke some inherent abstention power of this Court.³ Nonetheless, because Plaintiffs have stated a facially plausible claim under the RCRA,⁴ this Court is now subject to the "virtually unflagging obligation of the federal courts to exercise the jurisdiction given them."⁵ Taylor cites no authority to establish that the Court cannot entertain Plaintiffs' RCRA claims as a matter of law or that the Court has discretion to decline to hear them.

Second, Taylor argues this citizen suit is inappropriate, because the Administrator of the EPA bears the chief responsibility for enforcing RCRA. Even accepted as true, this premise does not support dismissal. As this Court previously recognized, "Congress expressly defined the limited circumstances under which ... RCRA [citizen] suits may be barred."⁶ None of these circumstances is present in this case. Taylor's argument essentially reads the citizen-suit provision out of the RCRA in direct contravention of Congressional intent.

117 F.Supp.3d 852

Third, Taylor argues the RCRA claim is duplicative of Plaintiffs' CWA claim. In support of this argument, Taylor cites Section 6905(b) of the RCRA, which requires "[t]he Administrator ... [to] avoid duplication, to the maximum extent practicable" between RCRA regulation and government regulation under, inter alia, the CWA.⁷ As a preliminary matter, this provision is directed to the Administrator of the EPA, and Taylor cites no precedent for applying it to a citizen suit. More importantly, the defendant bears the burden of establishing the RCRA anti-duplication provision applies.⁸ Taylor's ipse dixit falls well short of carrying this burden.

II. RCRA Claim on the Merits

Even if the RCRA claim is cognizable as a matter of law, Taylor contends Plaintiffs cannot meet their burden of proof at trial. To prevail in a "contributing to" citizen suit under the RCRA, a plaintiff must establish the following elements:

(1) that the defendant is a person, including, but not limited to, one who was or is a generator or transporter of solid or hazardous waste or one who was or is an owner or operator of a solid or hazardous waste treatment, storage, or disposal facility; (2) that the defendant has contributed to or is contributing to the handling, storage, treatment, transportation, or disposal of solid or hazardous waste; and (3) that the solid or hazardous waste may present an imminent and substantial endangerment to health or the environment.⁹

Taylor argues Plaintiffs cannot any establish any of these elements.

Regarding the first, Taylor contends it is not a "person" under the RCRA because it does not "generate" or "transport" solid or hazardous waste.¹⁰ Taylor's argument belies a plain reading of the statute, which imposes liability "against any person ... including any ... generator, ... transporter, or ... owner or operator of a treatment, storage, or disposal facility...."¹¹ Use of the phrase "any person" modified by the word "including" demonstrates that "generator" and "transporter" are merely two examples of persons regulated by the statute—not conditions precedent to liability.¹²

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