Wilson v. Amoco Corporation
| Decision Date | 01 May 1998 |
| Docket Number | No. 96-CV-0124-B.,96-CV-0124-B. |
| Parties | Eleanor F. WILSON, Richard F. Wilson, P.D. Chadderdon, Clinton E. Nelson, Virginia E. Nelson, Kathryn A. Kennedy, William Michael Kennedy, Mark R. Francis, C. Laverne Gangwish, and Toni A. Dodge, Plaintiffs, v. AMOCO CORPORATION, an Indiana corporation, Amoco Oil Company, a Maryland corporation, Burlington Northern Railroad Company, a Delaware corporation, and Steiner Corporation, a Nevada corporation, Defendants. |
| Court | U.S. District Court — District of Wyoming |
Robert T. McAllister, Denver, CO, J.N. Murdock, Casper, WY, for Plaintiffs.
Frank D. Neville, Casper, WY, Raymond W. Martin, Cheyenne, WY, Peter Billings, Salt Lake City, UT, Gary E. Parish, R. Daniel Scheid, Denver, CO, Thomas F. Ryan, Chicago, IL, for Defendants.
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
Currently before the Court are the dispositive motions of Defendants Burlington Northern and Steiner Corporation. The facts of this case are set forth at length in the Court's previous order on Plaintiffs' Motion for Preliminary Injunction. See Wilson v. Amoco Corp., 989 F.Supp. 1159 (D.Wyo. 1998). The Court therefore will not recount the facts in any detail here. Suffice it to say that Plaintiffs allege Defendants Burlington Northern and Steiner have discharged and released hazardous and toxic contaminants from their respective Casper, Wyoming facilities, and in doing so have injured the public health and the environment as well as Plaintiffs' properties. Plaintiffs bring claims under the citizen suit provisions of the Resource Conservation and Recovery Act (RCRA) and the Clean Water Act (CWA), and common law claims of trespass, nuisance, negligence, and indirect condemnation.
1. Summary Judgment
Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A fact is material if it might affect the outcome of the suit; an issue of material fact is genuine if a reasonable jury could return a verdict for the party opposing summary judgment. See Walker v. Toolpushers Supply Co., 955 F.Supp. 1377 (D.Wyo.1997). In determining whether to grant summary judgment, the Court must examine the factual record in the light most favorable to the nonmoving party. See Thomas v. IBM, 48 F.3d 478, 484 (10th Cir.1995).
The Resource Conservation and Recovery Act, or RCRA, regulates the generation, handling, treatment, storage, transportation, and disposal of solid and hazardous wastes. See 42 U.S.C. §§ 6922 - 25. In an effort to secure enforcement of the Act's provisions, Congress conferred enforcement power not only on the EPA or a duly authorized state agency, but also in certain circumstances on affected United States citizens themselves. RCRA's citizen suit provision provides in relevant part as follows:
[A]ny person may commence a civil action on his own behalf —
(B) against any person, including the United States and any other governmental instrumentality or agency, ... 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)(1)(B). Thus, any affected citizen may bring suit against any of the above individuals or entities whose waste-related acts or omissions present an imminent and substantial endangerment to health or the environment.
As the plain language of § 6972(a) specifies, it is not necessary that Plaintiffs show the contamination is damaging, or will damage, health or the environment. It is enough to show that such an endangerment "may" exist. In other words, Plaintiffs need not show actual harm to health or the environment, only threatened harm. See Dague v. City of Burlington, 935 F.2d 1343, 1355 (2d Cir.1991), rev'd on other grounds, 505 U.S. 557, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992); United States v. Price, 688 F.2d 204, 211 (3d Cir.1982). This expansive language is indicative of Congress's intent "to confer upon the courts the authority to grant affirmative equitable relief to the extent necessary to eliminate any risk posed by toxic wastes." See Dague, 935 F.2d at 1355. Consequently, if the Court finds an imminent and substantial endangerment exists, it has broad equitable powers, and may, "without regard to the amount in controversy or the citizenship of the parties, ... restrain any person who has contributed to the past or present handling, storage, treatment, transportation, or disposal of the solid or hazardous waste" presenting the threat to health or the environment. See 42 U.S.C. § 6972(a).
Burlington Northern contends Plaintiffs' RCRA claim is ripe not for summary judgment, but for final judgment, as there has been no new evidence offered by Plaintiffs in support of this claim since the Court's preliminary injunction order finding no imminent and substantial endangerment resulting from BN's contamination. Although this Court did rule at the preliminary injunction stage that the diesel fuel — the only substance shown "with any certainty to be attributable to BN" — did not constitute an imminent and substantial endangerment, see Wilson, 989 F.Supp. at 1180, that ruling was based as much on the heightened evidentiary showing required to secure preliminary injunctive relief as the evidence offered by BN in response to Plaintiffs' charges.
Moreover, there is some evidence, albeit limited, that BN is responsible for more than just diesel fuel contamination. Plaintiffs direct the Court's attention specifically to reports by Hart Crowser suggesting railroad maintenance operations at the BN yard are responsible for the release of chlorinated organics into the groundwater. See Pls.Ex. 3 at 2, 5, & 24; Ex. 16 at 3, 12, & 22. The Court admits, as it has throughout these proceedings, that the evidence against BN is unlikely to support a finding of imminent endangerment. That ultimate conclusion, however, is best made by the Court at trial after a full and fair presentation of the evidence has been made.
Like BN, Steiner asks the Court to dismiss the RCRA claim against it on the basis of this Court's preliminary injunction order finding that the PCE-infected ground-water poses no imminent and substantial endangerment to the health of Casper citizens or the Casper environment. As does BN, however, Steiner overlooks that the Court's ruling on preliminary injunction was based in part on the unique burdens imposed on Plaintiffs at that proceeding. See Wilson, 989 F.Supp. at 1180. Indeed, although the Court refused to enjoin Steiner at that time, it specifically directed the parties' attention to (1) the presence of certain affidavits "evidenc[ing] strongly Steiner's haphazard and consciously inappropriate handling of PCE-infected substances;" and (2) the fact that the ruling was not meant to signify that "Steiner is not a potential or even significant source of the PCE contamination." Id.
The Court is aware that the mere presence of PCE-infected groundwater is alone not enough to constitute an imminent and substantial endangerment. Plaintiffs submit, however, that tenants in a North Casper mobile home park are drinking groundwater containing PCE; that certain Casper properties are using groundwater for domestic purposes; that other properties' water supplies could be impacted in the event of a backflow; and that Casper citizens could be exposed to health risks by inhaling PCE fumes or using PCE-contaminated water. While Steiner contends this evidence is so lacking in force to warrant studied consideration, the Court believes it premature in these circumstances to determine the probative value of evidence and the credibility of witnesses without the benefit of live testimony and conduction of a trial on the merits. The Court therefore will not dismiss Plaintiffs' RCRA claim against Steiner.
The Clean Water Act was intended to "maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). The Act therefore categorically prohibits any person from discharging pollutants from a point source into the navigable waters of the United States without a permit. See 33 U.S.C. § 1311(a); see also Committee to Save Mokelumne River v. East Bay Mun. Utility Dist., 13 F.3d 305, 309 (9th Cir.1993).
As with RCRA, Congress saw fit to permit affected citizens to bring suit to enforce certain provisions of the CWA. The CWA's citizen suit provision provides in relevant part as follows:
[A]ny citizen may commence a civil action on his own behalf —
(1) against any person ... who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation....
33 U.S.C. § 1365(a). If the Court finds a person in violation of the CWA, it may order any relief it considers necessary to secure prompt compliance with the Act.
In recent years, and in this case, there has been much debate about when a person is "in violation" of the CWA. The controversy originated in 1987 when the Supreme Court in Gwaltney of Smithfield, Ltd., v. Chesapeake Bay Found., 484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306, held the CWA's citizen suit provision did not permit private actions based on "wholly past [CWA] violations." The Court reasoned that the most...
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