Apalachicola Riverkeeper et al v. Taylor Energy Company, L.L.C.

Filing 321

ORDER denying 261 Motion for Summary Judgment. Signed by Judge Susie Morgan on 7/29/2015. (caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
APALACHICOLA RIVERKEEPER, ET AL.,
Plaintiffs

CIVIL ACTION

VERSUS

NO. 12-337

TAYLOR ENERGY COMPANY L.L.C.,
Defendant

SECTION "E" (4)

ORDER
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

R. Doc. 261.
R. Doc. 261-1, p. 3.
3 It is also unclear why Taylor did not raise this argument over three years ago when suit was filed.
4 See R. Doc. 81.
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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.
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.

Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976).
R. Doc. 81, p. 15.
7 See 42 U.S.C. § 6905(b). The RCRA contains an additional anti-duplication provision at 42 U.S.C.
6905(a).
8 See San Francisco Herring Ass'n v. Pac. Gas & Elec. Co., No. 14–cv–04393–WHO, 2015 WL 859420, at
*13 (N.D. Cal. Feb. 26, 2015) ("[W]hen two statutes are capable of co-existence, it is the duty of the courts,
absent a clearly expressed congressional intention to the contrary, to regard each as effective. When there
are two acts upon the same subject, the rule is to give effect to both if possible . . . . Defendants have the
burden to show that . . . an inconsistency would result.") (alterations in original) (quoting Raritan
Baykeeper, Inc. v. NL Indus., Inc., No. 09–cv–4117 (JAP), 2013 WL 103880, at *27 (D. N.J. Jan. 8,
2013)).
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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
Taylor also argues—albeit implicitly—that the second element of a RCRA claim is
not met.13 Specifically, Taylor argues the oil discharged from MC-20 does not constitute
"solid waste" or "hazardous waste," as required by the statute. Hazardous waste is a
subset of solid waste.14 The RCRA's definition of "solid waste" includes "discarded

Cox v. City of Dall., Tex., 256 F.3d 281, 292 (5th Cir. 2001).
See R Doc. 261-1, p. 4.
11 42 U.S.C. § 6972(a)(1)(B) (emphasis added).
12 See Cox, 256 F.3d at 292–93.
13 Taylor only explicitly challenges the first and third elements.
14 See 42 U.S.C. 6903(25); Aviall Servs., Inc. v. Cooper Indus., LLC, 694 F. Supp. 2d 567, 582 (N.D. Tex.
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materials."15 Because the statute does not define "discarded materials,"16 courts have
developed their own definition. In general, courts agree that "discarded materials" are
those that have served or are no longer capable of serving their intended purpose.17
Applying this test, several courts have concluded that once leaked into soil or
water, petroleum products constitute solid waste, because they are no longer capable of
serving their intended purpose.18
persuasive.

The Court finds the reasoning in these cases

Therefore, the Court holds the oil that has leaked from MC-20 may

constitute solid waste if it is no longer capable of serving its intended purpose. Plaintiffs
bear the burden of establishing this element at trial.19
Finally, Taylor contends Plaintiffs cannot prove the oil discharged from MC-20
"may present an imminent and substantial endangerment to health or the
environment."20 In order to prevail, Plaintiffs need not demonstrate actual harm so
long as the threat of harm is present now.21 Whether the oil from MC-20 creates such a
threat is clearly a question of fact. Plaintiffs have submitted sufficient evidence to create
a genuine factual dispute that must be resolved at trial.

2010).
15 42 U.S.C. § 6903(27).
16 See Craig Lyle Ltd. P'ship v. Land O'Lakes Inc., 877 F. Supp. 476, 481 (D. Minn. 1995).
17 See, e.g., Zands v. Nelson, 779 F. Supp. 1254, 1262 (S.D. Cal. 1991); Craig Lyle, 877 F. Supp. at 481;
Conn. Coastal Fishermen's Ass'n v. Remington Arms Co., Inc., 989 F.2d 1305, 1314 (2d Cir. 1993);
Ecological Rights Found. v Pacific Gas & Elec. Co., 713 F.3d 502, 515 (9th Cir. 2013).
18 See, e.g., Craig Lyle, 877 F. Supp. at 481–82; Zands, 779 F. Supp. at 1262; United States v. Apex Oil Co.,
Inc., No. 05-CV-242-DRH, 2008 WL 2945402, at *81 (S.D. Ill. July 28, 2008); United States v. Union
Corp., 259 F. Supp. 2d 356, 402 (E.D. Pa. 2003); Waldschmidt v. Amoco Oil Co., 924 F. Supp. 88, 90–91
(C.D. Ill. 1996); Paper Recycling, Inc. v. Amoco Oil Co., 856 F. Supp. 671, 675 (N.D. Ga. 1993);
Dominick's Finer Foods, Inc. v. Amoco Oil Co., No. 93 C 4210, 1993 WL 524808, at *2 (N.D. Ill. Dec. 15,
1993); accord Andritz Sprout-Bauer, Inc. v. Beazer East, Inc., No. 4:CV–95–1182, 174 F.R.D. 609, 619–
21 (M.D. Pa. 1997).
19 Taylor appears to contend oil discharged into the Gulf could still serve its intended purpose if a
sufficient capturing mechanism is developed. See R. Doc. 310, p. 5.
20 42 U.S.C. § 6972(a)(1)(B).
21 See Cox, 256 F.3d at 299–300.

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CONCLUSION
There are genuine disputes of material fact that preclude the entry of summary
judgment.
Accordingly;
IT IS ORDERED that the Motion for Summary Judgment is DENIED.
New Orleans, Louisiana, this 29th day of July, 2015.
______________ _________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

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