Chapman v. Voestalpine USA Corp. et al
Filing
67
ORDER ON MOTION TO DISMISS OR STAY REQUEST FOR PERMANENT INJUNCTIVE RELIEF denying 58 Motion to Dismiss.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, 2)
United States District Court
Southern District of Texas
ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
BLAKE CHAPMAN, et al,
Plaintiffs,
VS.
VOESTALPINE USA CORP, et al,
Defendants.
June 11, 2019
David J. Bradley, Clerk
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§ CIVIL ACTION NO. 2:17-CV-174
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ORDER ON MOTION TO DISMISS OR STAY
REQUEST FOR PERMANENT INJUNCTIVE RELIEF
Defendants voestalpine Texas Holding, LLC and voestalpine Texas LLC own and
operate the La Quinta iron processing plant, which is an alleged source of airborne
metallic particulates. Plaintiffs are owners of real and/or personal property located in the
vicinity of the plant. They filed this action against Defendants because the particulates
settle on their property, causing rust and other damage. The claims sound in state law
actions for private nuisance, negligence, and trespass. Plaintiffs seek monetary damages,
as well as injunctive relief to permanently reduce or eliminate Defendants’ particulate
emissions. D.E. 53.
Before the Court is Defendants’ “Motion to Dismiss or, Alternatively, Stay
Permanent Injunction Claim” (D.E. 58/59), complaining that the claim for injunctive
relief is not ripe and that this Court does not have subject matter jurisdiction to consider
such relief as it invades the province of the Texas Commission on Environmental Quality
(TCEQ). Alternatively, Defendants argue that this Court should stay any consideration of
injunctive relief in favor of the TCEQ’s permitting process on the grounds of primary
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jurisdiction. Plaintiffs have responded (D.E. 63) and Defendants have replied (D.E. 66).
For the reasons set out below, the Court DENIES the motion.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(1) requires dismissal for lack of subject
matter jurisdiction if the court lacks statutory or constitutional power to adjudicate the
case. Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th
Cir. 1998). The burden of proof is on the party asserting jurisdiction—Plaintiffs, here.
Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001), cert. denied sub nom.,
Cloud v. United States, 536 U.S. 960 (2002).
In examining a Rule 12(b)(1) motion, the district court is empowered to consider
matters of fact that may be in dispute. “Lack of subject matter jurisdiction may be found
in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by
undisputed facts evidenced in the record; or (3) the complaint supplemented by
undisputed facts plus the court's resolution of disputed facts.”
Id. (citing Barrera-
Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996)).
A plaintiff’s
uncontroverted factual allegations are taken as true. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009).
DISCUSSION
A. Nature of Injunctive Relief Sought
Initially, Plaintiffs sought only damages for personal injury, mental anguish,
property damage, expenses for mitigating losses, lost market value of real and personal
property, and loss of use and enjoyment of real and personal property, along with
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exemplary damages. D.E. 1, 10, 29, 40. In Plaintiffs’ Fourth Amended Complaint for
Damages and Permanent Injunctive Relief (D.E. 53), filed January 29, 2019, Plaintiffs
added their request for permanent injunctive relief, to redress their complaints based on
liability theories that have been constant throughout their pleadings.
Defendants
characterize the request for injunctive relief as (1) a separate claim that is (2) designed to
interfere with the permitting jurisdiction of the TCEQ. Neither is true.
Injunctive relief is merely a remedy available, for instance, to address a
trespasser’s invasion of land, destruction of an owner’s use and enjoyment, and repeated
or continuing trespass for which legal remedies are inadequate. Beathard Joint Venture
v. West Houston Airport Corp., 72 S.W.3d 426, 432 (Tex. App.—Texarkana 2002, no
pet.) (injunctive relief for trespass of this kind is appropriate upon showing of imminent
harm, irreparable damages, and inadequate remedy at law); City of Arlington v. City of
Fort Worth, 873 S.W.2d 765, 769 (Tex. App.—Fort Worth 1994, writ dism’d) (denying
relief, but recognizing appropriate bases for granting it). Such relief is also available to
redress a nuisance, depending on the balance of the harm from the operation of a facility
against the harm to the facility owners and public. 1717 Bissonnet, LLC v. Loughhead,
500 S.W.3d 488, 500 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (denying
injunctive relief); Hot Rod Hill Motor Park v. Triolo, 276 S.W.3d 565, 568 (Tex. App.—
Waco 2008, no pet.) (affirming injunction preventing operation of a race track).
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According to the Texas Clean Air Act, as enforced under the provisions of the
Texas Water Code1,
The remedies under this chapter are cumulative of all other
remedies. Nothing in this chapter affects the right of a private
corporation or individual to pursue any available common
law remedy to abate a condition of pollution or other
nuisance, to recover damages to enforce a right, or to prevent
or seek redress or compensation for the violation of a right or
otherwise redress an injury.
Tex. Water Code § 7.004.
Also, “[t]his chapter does not exempt a person from
complying with or being subject to other law.” Id. at 7.005.
The injunctive relief requested is further consistent with the provisions of
Defendants’ TCEQ permit, according to the allegations, taken as true. The permit allows
for controls in addition to those acknowledged in granting the permit and specifically
directs Defendants to not create a nuisance. D.E. 53, p. 9. Plaintiffs seek measures to
reduce Defendants’ emissions of particulates, consistent with the TCEQ’s purpose and to
bring Defendants into compliance with the terms of their current TCEQ permit. Such
measures include, but are not limited to:
The installation and use of a Particulate Matter Continuous Emissions
Monitor with trained personnel;
Installation and use of a closed circuit television system to monitor yard
and material handling issues;
Installation and use of a meteorological station to determine when stop
work orders should be issued to avoid excessive emissions on dry, dusty
days;
1
Tex. Water Code §§ 5.013(a)(11), 7.002, 7.00251 provide the enforcement mechanism for Texas Health & Safety
Code ch. 382, the Texas Clean Air Act.
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Use of an Environmental Management Information System to track
deviations and episodic releases to enhance communication and timely
actions to address anomalies in the operations and emissions;
Make changes to the cooling tower to correct design flaws and reduce
particulate emissions; and
Implement a flare minimization plan, including addressing facility
operating limits.
D.E. 53, pp. 21-30.
While the allegations note that Defendants intend to seek a
modification of their permit to increase the level of particulates they are allowed to emit,
the injunctive relief requested does not require this Court to interfere with the permitting
process. Instead, Plaintiffs seek relief that will bring Defendants into compliance with
the permit already obtained and will supplement current measures to reduce emissions,
all as contemplated by the statutory scheme that contemplates protection of their private
interests.
B. Ripeness
Defendants complain that the request for injunctive relief is not ripe because it
relates to a TCEQ permitting process that has not yet begun. “A claim is not ripe for
adjudication if it rests upon contingent future events that may not occur as anticipated, or
indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300 (1998). This is a
common problem when a regulatory process may lead to offending land use.
For instance, Defendants cite Monk v. Huston, 340 F.3d 279, 282-83 (5th Cir.
2003), a landfill case. The tortious conduct would not occur unless a regulatory permit
approved a landfill operation—an operation that had not yet begun. The Monk plaintiffs
predicated their complaint on a denial of procedural due process in the regulatory
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permitting proceedings—due process rights that do not exist absent a deprivation of life,
liberty, or property.
The Monk opinion states that the claim is not ripe until that
deprivation occurs, which would only be after the regulatory agency issued the permit—
if it issued the permit.
Defendants’ other cases on ripeness have similar holdings. Abdelhak v. City of
San Antonio, 509 F. App’x 326, 329 (5th Cir. 2013) (no takings claim absent final
decision on a request for variance); Smith v. City of Brenham, Tex., 865 F.2d 662, 664
(5th Cir. 1989) (no uncompensated taking without permit initiating creation and operation
of landfill); and Texas Comm’n on Envtl. Quality v. Guadalupe Cty. Groundwater
Conservation Dist., No. 04-15-00433-CV, 2016 WL 1371775, at *4 (Tex. App.—San
Antonio Apr. 6, 2016) (claim not ripe until pending permitting process completed,
allowing offending operations). If no harm will occur until a permit is issued, the claim
for damage done is not ripe.
Plaintiffs’ claim, however, is based on allegations that particulate emissions have
occurred for over two years and continue to occur—violating Defendants’ existing TCEQ
Title V permit. If proven, such a claim could justify some injunctive relief designed to
reduce or eliminate those emissions or the harm that they cause. The exact nature of that
relief would depend on what the evidence demonstrates. The options for injunctive relief
are not so limited that this Court is precluded from considering any such relief simply
because Defendants hold a TCEQ permit.
Because Plaintiffs’ have alleged an existing and ongoing tortious act, the claims
are ripe. They are not contingent on any future TCEQ Title V permitting process. The
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Court DENIES Defendants’ motion to the extent it seeks to preclude any remedy
involving injunctive relief.
C. Exclusive Jurisdiction
Defendants argue that the TCEQ has exclusive jurisdiction over the subject matter
at issue and that Plaintiffs must exhaust their administrative remedies before bringing
their claim in this Court. This is true if the statutory authorization for the agency clearly
abrogates common law rights. See Forest Oil Corp. v. El Rucio Land & Cattle Co., 518
S.W.3d 422, 428 (Tex. 2017). It does not. Instead, it expressly preserves common law
rights. Tex. Water Code § 7.004. The Court DENIES Defendants’ motion with respect
to its assertion of TCEQ exclusive jurisdiction.
D. Primary Jurisdiction
Defendants also ask the Court to stay the injunctive relief issues in favor of the
TCEQ’s exercise of primary jurisdiction. As already noted, the TCEQ does not have
jurisdiction to evaluate Plaintiff’s common law claims. Those claims were preserved for
judicial action. Tex. Water Code § 7.004. And Defendants have failed to demonstrate
that there is any pending proceeding that would address Plaintiffs’ complaints to which
the Court should defer. Rather, Defendants—in a permit modification proceeding not yet
initiated—are expected to seek a permit that would perpetuate the damage that Plaintiffs
are already allegedly suffering. The Court DENIES Defendants’ motion with respect to
its request for a stay of injunctive relief pursuant to the primary jurisdiction doctrine.
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CONCLUSION
For the reasons set out above, the court DENIES Defendants’ motion to dismiss
or, alternatively, to stay permanent injunction (D.E. 58/59).
ORDERED this 11th day of June, 2019.
___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE
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