US v. Schilling
| Decision Date | 08 September 1988 |
| Docket Number | Civ. No. H 87-229. |
| Parties | UNITED STATES of America v. Robert SCHILLING, John Schilling, R & J Enterprises, Inc. d/b/a Schilling Brothers Gas Stop. |
| Court | U.S. District Court — Northern District of Indiana |
F. Henry Habicht, II, Asst. Atty. Gen., Land & Natural Resources Div., U.S. Dept. of Justice, Robert Oakley, Environmental Enforcement Section, U.S. Dept. of Justice, Phyllis R. Anderson, Field Operations & Support Div., U.S. E.P.A., Washington, D.C., Andrew B. Baker, Jr., Asst. U.S. Atty., Hammond, Ind., for plaintiff.
Richard S. Tebik, Skozen & Tebik, Munster, Ind., for defendants.
This matter is before the court on plaintiff's motion for summary judgment, filed pursuant to Fed.R.Civ.P. 56 on March 10, 1988. Defendants John Schilling, Robert Schilling, and R & J Enterprises, Inc. responded on March 28, 1988, and plaintiff filed its reply on April 6, 1988.
This is a civil action brought by the United States against R & J Enterprises, Inc., and its officers Robert and John Schilling, for alleged violations of the Clean Air Act, 42 U.S.C. § 7545, and the regulations promulgated thereunder at 40 C.F.R. Part 80.
Following the August 2, 1988 consensual inspection of Schilling Brothers Gas Stop, a gasoline retail outlet located at 9125 Wicker Avenue, St. John, Indiana, the government cited defendant owners of that gasoline outlet with the following violations: (1) failing to label four gasoline pumps "unleaded gasoline"; and two pumps "contains lead anti-knock compounds" (six label violations); (2) failing to post signs stating "Federal law prohibits the introduction of any gasoline containing lead or phosphorus into any motor vehicle labeled `UNLEADED GASOLINE ONLY'" in each pump stand area, of which there are four at the outlet (four sign violations); and (3) allowing leaded gasoline to be introduced into two vehicles that were labeled as requiring unleaded gasoline (two introduction violations). Defendants face fines of $10,000 for each of the twelve violations.
In the instant motion, plaintiff asks for summary judgment on all three allegations, while defendants deny liability on all three.
Rule 56 is supplemented by Rule 11 of the General Rules of the United States District Court for the Northern District of Indiana ("Local Rule 11"), which provides in pertinent part:
emphasis added.
There are sound reasons for this rule. Requiring the moving party to provide a statement of material facts claimed to be undisputed sharpens the issues so that the nonmoving party may frame its response. Requiring the nonmoving party to controvert these facts in a "statement of genuine issues" provides a concrete procedure by which the nonmoving party may meet its burden to "designate `specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). This procedure aids the court in arriving at a just ruling on the motion.
The court looks first to the plaintiff's statement of material facts as to which plaintiff contends there is no issue. Plaintiff submits the following list to the court:
1. Defendants owned and operated a gasoline retail facility known as "Gas Stop" and located at 9125 Wicker Avenue, St. John, Indiana, on August 2, 1985.
2. The subject outlet is a retail outlet as defined by 40 C.F.R. § 80.2(k).
3. On August 2, 1985, Ruth Mancos, an authorized representative of the United States Environmental Protection Agency, conducted an inspection of the subject outlet to determine compliance with section 211 of the Clean Air Act and the regulations promulgated thereunder at 40 C.F.R. Part 80.
4. While conducting the inspection, Ms. Mancos witnessed the fueling of a 1978 Chrysler Reliant, which was labeled "Unleaded Gasoline Only" at the fuel filler inlet, from a gasoline pump designated as dispensing leaded gasoline.
5. While conducting the inspection, Ms. Mancos witnessed the fueling of a 1980 Chevrolet Camaro Z-28, which was labeled "Unleaded Gasoline Only" at the fuel filler inlet, from a gasoline pump designated as dispensing leaded gasoline.
6. Each of these vehicles was designed to require unleaded gasoline, was required to bear a label at the fuel inlet stating "Unleaded gasoline only," and did have such labels attached.
7. These fuelings were performed by customers at self service pumps within view of a station attendant.
8. The gasoline in pumps with serial numbers 0439293 and 0439294 which fueled the subject vehicles dispensed leaded gasoline on August 2, 1985.
9. The individual gasoline pumps listed below did not have affixed labels stating "Unleaded gasoline" (for those pumps used to dispense unleaded gasoline) or "Contains lead anti-knock compounds" (for these pumps used to dispense leaded gasoline).
Pump Type of
Serial Number Product Indicated
0439296 Premium unleaded
0439296 Premium unleaded
0439295 Unleaded
0439295 Unleaded
0439294 Leaded
0439294 Leaded
10. Four of the pumpstands at the subject outlet did not have prominently displaced signs stating "Federal law prohibits the introduction of any gasoline containing lead or phosphorus into any motor vehicle labeled `UNLEADED GASOLINE ONLY.'"
All proposed facts are supported by affidavits.
Pursuant to Local Rule 11, the court must assume these facts to be true except, and to the extent that, defendants in good faith controvert them in their "statement of genuine issues," as supported by appropriate affidavits and other supporting documents. See section II, supra.
Defendants claim in their response that the following issues are in dispute:
In support of their contention that a genuine dispute exists with respect to these issues, defendants offer the affidavit of defendant Robert Schilling as well as various photographs of the station and gas pumps.
In his affidavit, defendant Robert Schilling stated that on the date of the inspection, August 2, 1985, "the notice required by 40 C.F.R. § 80.22(d) was permanently affixed and prominently and conspicuously displayed in the area of each gas pump stand and were so equipped from the factory." Defendant further asserts in his affidavit that on that same date "the labels required by 40 C.F.R. § 80.22(e) were permanently affixed to the gas pump stands and were located as to be readily visible to the customer."
Defendants also offer photographs of gas pumps to prove that the notices and labels were present. Defendants offer no proof, however, nor even a bare assertion, that the photographs were taken on August 2, 1985. The photographs, therefore, only go to the credibility or weight of defendants' claim that the labels and notices were present, and do not conclusively prove that they were there on August 2, 1985.
Similarly, plaintiff offers proof in its reply that defendants' affidavit contradicts earlier statements by defendants as to when the labels and signs were purportedly affixed to the gas pumps. Even if these assertions of plaintiff are given full weight by the court, they only go to the credibility of defendants' assertion that the labels and notices were in place on August 2, 1985— they don't actually prove the labels and signs could not have been present on the date in question.
It is not the...
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