U.S. v. Murphy Oil Usa, Inc.

• Decision Date: 21 May 2001
• Docket Number: No. 00-C-0409-C.,00-C-0409-C.
• Court: U.S. District Court — Western District of Wisconsin
• Parties: UNITED STATES of America, Plaintiff, v. MURPHY OIL USA, INC., Defendant.

Page 1054

143 F.Supp.2d 1054

UNITED STATES of America, Plaintiff, v. MURPHY OIL USA, INC., Defendant.

No. 00-C-0409-C.

United States District Court, W.D. Wisconsin.

May 21, 2001.

As Amended May 25, 2001 and June 11, 2001.

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Leslie K. Herje, Madison, WI, for U.S.

John Koeppl, Dewitt, Ross & Stevens, Madison, WI, for Murphy Oil USA, Inc.

Mark A. Thimke, Foley & Lardner, Milwaukee, WI, for Wisconsin Manufacturers & Commer.

OPINION AND ORDER

CRABB, District Judge.

This is a civil action brought by plaintiff United States of America against defendant Murphy Oil USA. Inc. to obtain injunctive relief and civil penalties for alleged past and present violations of environmental laws at defendant's petroleum refinery in Superior, Wisconsin. Plaintiff contends that defendant has violated and is continuing to violate the Clean Air Act, 42 U.S.C. §§ 7401-7671q, the Clean Water Act, 33 U.S.C. §§ 1251-1387. Sub-chapter III of the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6921-6939e, and the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. §§ 6991-6991h. Jurisdiction is present. See 28 U.S.C. §§ 1331, 1345 and 1355; 42 U.S.C. § 7413(b); 33 U.S.C. § 1319(b); 42 U.S.C. §§ 6928(a) and (h) and 6991(e).

Some description of the laws alleged to have been violated will provide context for this comprehensive prosecution plaintiff has brought, in which it is alleging 24 separate violations against defendant and in which defendant has asserted eleven affirmative defenses, nine of them against the alleged Clean Air Act violations. The Clean Air Act assigns responsibility to both the state and federal governments for preventing and controlling air pollution. Congress has charged the Environmental Protection Agency with establishing national ambient air quality standards that protect human health and the environment. See 42 U.S.C. § 7409. Individual states have the opportunity to adopt statutes and regulations to achieve the federally established air quality standards within their borders. See 42 U.S.C. §§ 7407 and 7410. Once approved by plaintiff, these state plans are referred to as "state implementation plans" and are enforceable by both the state and federal governments. See id.; see also 42 U.S.C. § 7413(a) and (b). Plaintiff has approved Wisconsin's implementation plan for regulating sulfur dioxide, the main air pollutant at issue in this case. As part of their preparation of implementation plans, states must designate those areas in their states in which air quality attains the standards set by the federal government. In those "attainment areas" states must implement and enforce a Prevention of Significant Deterioration program that prescribes a pre-construction review process for large stationary sources of air emissions. In Wisconsin, the Department of Natural Resources has had authority for this review process during all relevant times. The reviewing authority estimates the emissions for a proposed source to determine whether they will lead to a deterioration of the air quality within the attainment area beyond statutorily determined levels. Those sources that will produce such emissions must undergo Prevention of Significant Deterioration review that may require the utilization of best available control technology to control emissions from the proposed new or modified emission source. See 42 U.S.C. § 7475(a)(4).

In addition, the Clean Air Act prescribes uniform national standards known as New Source Performance Standards that establish technology-based minimum levels of performance with which certain types of new and modified sources must comply. See 42 U.S.C. § 7411. These standards apply to certain types of new emission sources and the modification of certain types of existing sources.

The Clean Water Act has as its goal the restoration and maintenance of the chemical biological and physical integrity of the nation's waters. See 33 U.S.C. § 1251(a). It prohibits the discharge of any pollutant into the navigable waters of the United States except in compliance with a National Pollutant Discharge Elimination System permit issued by plaintiff. See 33 U.S.C. § 1342. The Wisconsin Department of Natural Resources administers the permit system within Wisconsin, pursuant to a 1974 memorandum of understanding that gave the state implementation and enforcement authority over the system. Under the Clean Water Act, effluent limitations control particular discharges. Generally, there are two types of limits, categorical limits and water based quality limits. In this case, only water based quality limits are at issue.

The Resource Conservation and Recovery Act addresses the problems posed by hazardous waste and attempts to reduce the threat to human health and the environment that such waste poses. The act takes what has been called a "cradle-to-grave" approach, regulating hazardous waste from its initial generation to its ultimate disposal. See, e.g., United States v. Power Engineering Co., 10 F.Supp.2d 1145, 1147 (D.Colo.1998). Plaintiff has authorized the state of Wisconsin to administer and enforce a hazardous waste program. As a generator of hazardous waste, defendant is subject to the act.

The Emergency Planning and Community Right-to-Know Act was enacted as independent legislation within the Comprehensive Environmental Response Compensation and Liability Act. The act has two goals: providing local communities with information about potential chemical hazards within their boundaries and encouraging state and local emergency planning for response to spills or releases of toxic or hazardous chemicals. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 86, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). The act's reporting requirements compel users of specified toxic and hazardous chemicals to file annual forms describing such matters as the name and quantity of chemicals on hand, the waste-disposal method employed and the annual quantity released into each environmental medium. See id. at 86-87, 118 S.Ct. 1003; 42 U.S.C. §§ 11022 and 11023.

The case is before the court on plaintiff's motion for partial summary judgment on all claims as to liability and defendant's motion for partial summary judgment dismissing claims 1-5, 7, 8 and 14-21. I conclude that defendant's motion for partial summary judgment must be denied either because there are material facts in dispute that prevent resolution before trial or because the defenses fail as a matter of law. Central to the first four Clean Air Act claims is plaintiff's allegation that defendant withheld from regulators relevant information concerning its plans to improve its sulfur recovery unit and distillate unifier in 1988 and 1992. It remains unclear exactly what information was withheld, what the relevance of any such information might be and what significance any withheld information might have in light of the frequent inspections the Wisconsin Department of Natural Resources made of the refinery and the numerous discussions they had with defendant's employees before and during the construction period. Until these matters are resolved at trial, it is not possible to make a final determination of many of the defenses defendant has raised or the first four claims plaintiff has brought.

I conclude that plaintiff's motion for partial summary judgment must be denied as to claims one through five, ten, eleven, twelve and thirteen, twenty-two through twenty-four and that it will be granted as to claims six, seven, eight, nine, fourteen, seventeen and eighteen. A ruling will be reserved on claim fifteen, a portion of which has been withdrawn by plaintiff. Claims sixteen, nineteen, twenty and twenty-one are withdrawn by plaintiff.

Before setting out the undisputed facts, a few words about the parties' submissions are in order. First, a party's proposed findings of fact are supposed to be facts. "Facts" refer to the historical events out of which the dispute arose. Facts are what happened, who did it, when it happened, who made what admissions or representations, what or whom was involved. It is not a "fact" that this court has subject matter jurisdiction over the case, pursuant to 28 U.S.C. § 1331 or any other statute. That is a conclusion of law. Similarly, it is not a fact that notice of the commencement of this action was given to the state of Wisconsin pursuant to 42 U.S.C. § 7412(b). That too is a legal conclusion. The fact or facts are what was done to effect such notice. Did plaintiff send the state a letter? If so, on what date was it sent and what did it say?

Counsel should not include excerpts from statutes in their proposed findings of fact; such excerpts are not facts but law and should be saved for discussion in the brief or proposed conclusions of law. Counsel should note that except in unusual circumstances, it is not a material fact that so-and-so testified to such-and-such in a deposition. For example, in a case involving an automobile accident it is not a material fact that John Smith testified in a deposition that the traffic light was green when he entered the intersection. The fact for the trier of fact (or the judge determining the existence or non-existence of disputed material facts) is whether the light was green, not what John Smith said about it. The correct way to propose the fact is, "The traffic light was green when John Smith entered the intersection. See April 2, 2001 deposition of John Smith at 27, ls. 11-22."

Second, it is not necessary to repeat all of the proposed facts in the brief. See Procedures to be Followed on Motions for Summary Judgment ¶ 5. If counsel include facts in a brief, they must take care not to rely on any fact that has not been made the subject of a proposed finding. Moreover, if counsel believe it necessary to refer to factual...