Consolidated Co Inc v. Union Pacific RR Co ( 2007 )

REVISED OCTOBER 5, 2007
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 28, 2007
No. 06-30570
Charles R. Fulbruge III
Clerk
CONSOLIDATED COMPANIES INC
Plaintiff-Appellee
v.
UNION PACIFIC RAILROAD CO, Individually & in its Capacity as
Successor in Interest, aka Southern Pacific Transportation Co
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
Before HIGGINBOTHAM, GARZA, and BENAVIDES, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
In this case we granted an interlocutory appeal by Union Pacific Railroad
Co. (“Union Pacific”) under 28 U.S.C. § 1292(b) to determine whether the district
court erred in defining the term “facility” for purposes of the claims brought by
Consolidated Companies, Inc. (“Conco”) under the Resource Conservation
Recovery Act “RCRA”, 42 U.S.C. §§ 6901, et seq., and the Louisiana
Environmental Quality Act (“LEQA”), Louisiana Revised Statutes 30:2001, et
seq. Finding no error in the district court’s ruling, we affirm.
No. 06-30570
I
Conco owns a parcel of property located on the southeast Evangeline
Thruway in Lafayette, Louisiana ("Conco tract"). Conco purchased the Conco
tract in 1964 from the predecessor in interest of Union Pacific, the Southern
Pacific Company ("Southern Pacific"). Prior to that time, the Conco tract, along
with several other contiguous parcels of property, composed Southern Pacific's
railroad yard (“former railroad site”).1 Railroad activities were conducted on this
site for approximately thirty years, ceasing in the mid-1960s. Union Pacific later
merged with Southern Pacific and, for purposes of this case, assumed the
obligations and liabilities, if any, of Southern Pacific.
Conco operates a food warehouse and distribution facility on the Conco
tract. In 1996, Conco discovered contamination, including fuel oil, on the Conco
tract, which it alleges is the result of the prior railroad operations. Conco
brought suit against Union Pacific, pleading causes of action under the RCRA,
the LEQA, and various tort-based theories. Conco sought monetary damages
and injunctive relief directing Union Pacific to clean up contamination on the
entire former railroad site. Initially, the allegations in Conco’s complaint only
related to the Conco tract. However, Conco was later permitted to amend its
complaint to include allegations and requests for relief addressing the entire
site.
Upon agreement of the parties, the district court held a bench trial under
Federal Rule of Civil Procedure 42(b) on the limited issue of whether the
contiguous parcels of property that make up the former railroad site can
constitute a single "facility" for purposes of Conco's claims under the RCRA and
1
These additional contiguous tracts are identified as: (1) the Georgia Pacific parcel located at 814
Southwest Evangeline Thruway; (2) the PMT parcel located at 810 Southwest Evangeline Thruway; and (3)
the P.J.A. Properties, Inc. site at 600-602 Southwest Evangeline Thruway. The Georgia-Pacific parcel was
purchased by Georgia-Pacific Corporation from Southern Pacific in 1966. The PMT parcel is still owned by
Union Pacific.
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the LEQA. For purposes of this limited trial, Union Pacific stipulated that
contamination from pre-1964 railyard operations is present on the Conco tract
and that Conco can bring suit under the RCRA and the LEQA with respect to
that tract. However, Union Pacific argued that: (1) Conco did not have standing
to include in its suit the other contiguous tracts that compose the former railroad
site and are not owned by Conco; and (2) under the RCRA and the LEQA, a
"facility" cannot be composed of the entire former railroad site but instead must
be limited to the Conco tract.
In its interlocutory judgment filed after the conclusion of the bench trial,
the district court made several findings of fact, including: (1) that the former
Southern Pacific railroad site included a 35,000 gallon and a 30,000 gallon above
ground fuel oil tank and that oil, fuel, and dynamite were stored throughout the
site; (2) that numerous pipelines, wells and drains traversed the site during its
active use as a railyard; (3) that a 1996 preliminary subsurface investigation on
the Conco tract in the area of the 35,000 gallon fuel oil tank revealed fuel oil
contamination in the subsurface soil and the groundwater, which is undoubtedly
linked to the operations of the railroad yard; (4) that other contamination related
to or arising out of the railroad operations, including contaminants, pollutants,
hazardous wastes and/or hazardous substances as defined by law, has been
discovered throughout the former railroad site at various times by various
consultants; and (5) as early as 1990 or 1991, Union Pacific was aware of the
presence of hazardous wastes and/or hazardous substances at, on, or under the
former site and in the groundwater at various parcels.2 Further, the district
court held that: (1) Conco has constitutional standing to bring its claims under
both the RCRA and the LEQA; and (2) the entire former Southern Pacific
2
The district court’s factual findings are not at issue in this interlocutory appeal, in
which we review only the district court’s purely legal rulings. See Kinney v. Weaver, 367 F.3d
337, 347 n.9 (5th Cir. 2004) (citing Johnson v. Jones, 515 U.S. 304, 313-17, 115 S. Ct. 2151,
132 L. Ed. 2d 238 (1995)).
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No. 06-30570
railroad site can constitute a single “facility” for purposes of Conco’s RCRA and
LEQA claims. Union Pacific filed a Petition to Appeal the interlocutory order
under 28 U.S.C. § 1292(b), which was granted by this Court.
On appeal, Union Pacific renews its arguments that: (1) Conco does not
have standing to bring its claims under the RCRA and the LEQA because it has
not demonstrated an “injury in fact” sufficient to meet the requirements of
Article III, § 2 of the United States Constitution; and (2) that the district court
erred in holding that the entire former railroad site can constitute a single
“facility” for purposes of Conco’s RCRA and LEQA claims.
II
Union Pacific first argues that Conco does not have standing to bring its
claims under the RCRA and the LEQA because it has not demonstrated an
“injury in fact” sufficient to meet the requirements of Article III, § 2 of the
United States Constitution. As Union Pacific correctly notes, the citizen suit
provisions of the RCRA and the LEQA do not, in and of themselves, satisfy the
case-in-controversy requirement of Article III, § 2. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 571-72 (1992). In order to demonstrate standing, a
plaintiff must show: (1) that it has suffered an “injury in fact” that is (2) fairly
traceable to the challenged action of the defendant and (3) the likelihood that the
injury can be redressed by a favorable decision. Friends of the Earth, Inc. v.
Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180-81 (2000) (citing
Lujan, 504 U.S. at 560-61). An “injury in fact” must be both concrete and
particularized and must be either actual or imminent. Friends of the Earth, 528
U.S. at 180-81.
We find that Conco has demonstrated an “injury in fact” sufficient for
purposes of constitutional standing. Conco has produced evidence that
contaminants are present in the soil throughout the entire former railroad site,
including the Conco tract. Union Pacific has conceded that these contaminants
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No. 06-30570
are present due to the former railroad activities conducted by its predecessor-in-
interest, Southern Pacific. Further, based on the presence of these
contaminants, Conco is currently under Louisiana Department of Environmental
Quality (“LDEQ”) orders to monitor the area bordering the Georgia Pacific tract.
Conco has already incurred and continues to incur costs for its performance of
these required monitoring efforts. Recovery of these costs is one of Conco’s
objects in its suit against Union Pacific. These injuries are clearly actual,
concrete, and particularized. Id.Union Pacific argues that Conco’s injuries only give it standing to bring
suit based on the parcel of the former railroad site that Conco owns. However,
Union Pacific has not provided any compelling legal basis for so limiting Conco’s
standing. Conco’s injuries, as reflected in the district court’s factual findings,
arose out of the railroad activities that were conducted throughout the entire
former railroad site. Further, Conco has introduced evidence demonstrating
that the contaminants on the non-Conco tracts may pose further threatened
harm to Conco. An expert witness testified that the contaminants on the non-
Conco tracts may have already migrated to the Conco tract or may so migrate
in the future. The Supreme Court has consistently held that threatened harm
can constitute an injury in fact. See Lujan, 504 U.S. at 571-72.
Additionally, Conco has submitted evidence showing that the City of
Lafayette’s water supply, the Chicot aquifer, lies beneath the land surface at
issue. An expert witness testified that the toxic contaminants located
throughout the former railroad site may have migrated into the water supply.
Conco’s employees, like the citizens of Lafayette generally, drink the water
supplied by this aquifer and, therefore, have been or will be injured by any
pollution of the aquifer.3 Given this evidence, we hold that Conco’s injuries, both
3
Data that would allow definitive determination as to whether the contaminants have
polluted or will soon pollute the water supply is not available. However, expert testimony,
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No. 06-30570
actual and threatened, are sufficiently related to the former railroad site so as
to give Conco standing to bring claims implicating the site in its entirety. See
id. at 560-61.
III
Union Pacific also argues that the district court erred in holding that the
entire former railroad site can comprise a single “facility” for purposes of Conco’s
claims under the RCRA. Union Pacific contends that only the Conco tract can
legally be considered as a “facility” under the RCRA. Conco brings suit under
§ 6972(a)(1)(B), commonly referred to as the citizens suit provision of RCRA,
which provides that “any person may commence a civil action on his own behalf,”
thereby empowering a plaintiff to act, in effect, as a private attorney general on
behalf of citizens. See Prisco v. A & D Carting Corp., 168 F.3d 593 (2d. Cir.
1999). In order to prevail under this section, a plaintiff must establish the
following elements:
1. The defendant is a person, including, but not limited to, one who
was or is a generator 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. The defendant has contributed to, or is contributing to, the
handling, storage, treatment, transportation, or disposal of solid or
hazardous waste; and
3. The solid or hazardous waste may present an imminent and
substantial endangerment to human health or the environment.
42 U.S.C. § 6972(a)(1)(B) (emphasis added). Although the term “facility” is
employed throughout the RCRA, it is not specifically defined in § 6909, the act’s
definition section. However, “facility” is defined in § 6991b(h)(6)(D), a section of
the RCRA that addresses claims relating to underground storage tanks. This
section reads:
credited by the district court, established that Union Pacific has neither fully complied with
LDEQ testing efforts on the property it still owns nor permitted Conco to conduct testing
beyond the Conco tract.
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No. 06-30570
“For purposes of this paragraph, the term “facility” means, with
respect to any owner or operator, all underground storage tanks
used for the storage of petroleum which are owned or operated by
such owner or operator and located on a single parcel of property (or
on any contiguous or adjacent property).”
42 U.S.C. § 6991b(h)(6)(D) (emphasis added).
“Facility,” then, is defined in the RCRA in a manner that is inclusive of
contiguous or adjacent tracts of property. It is a well accepted rule of statutory
construction that “identical words used in different parts of the same act are
intended to have the same meaning.” Commissioner v. Lundy, 516 U.S. 235,
250, 116 S. Ct. 647, 133 L. Ed.2d 611 (1996); see also Cox v. City of Dallas, 256
F.3d 281, 293 n.22 (5th Cir. 2001). The definition of “facility” in § 6991b(h)(6)(D)
is particularly instructive of how the term should be interpreted in the instant
case because the contexts in which the term is used are quite similar. In
§ 6991b(h)(6)(D), “facility” is defined in relation to property on which
underground storage tanks are present. In the case before us, at issue is the
appropriate boundary of a “facility” with respect to the former railroad site, upon
which above ground storage tanks were located. That the definition of the term
would be consistent between such similar contexts is logically compelling.
“Facility” is also defined in the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA), which shares a similar legislative
purpose with the RCRA. The RCRA, in fact, calls upon the Administrator of the
Environmental Protection Agency (EPA) to integrate the provisions of the RCRA
with those of CERCLA in a manner consistent with the goals and policies
expressed in each act. See 42 U.S.C. § 6905. In § 9601(9), CERCLA defines
“facility” as “any site or area where a hazardous substance has been deposited,
stored, disposed of, or placed, or otherwise come to be located.” 42 U.S.C.
§ 9601(9). In Tanglewood East Homeowners v. Charles-Thomas, Inc., 849 F.2d
1568, 1572-74 (5th Cir. 1998), we read this definition as leaving “no room for
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No. 06-30570
doubt” that an entire development, rather than the individual parcels of
property owned by the private citizens, constituted a “facility” under CERCLA.
In doing so, we explained that the statutory definitions in Ҥ 6972 [of the RCRA]
are the same as the definitions in CERCLA.” Id. at 1574. It is the clear
guidance of Tanglewood, then, that we let the inclusive definition of “facility”
found in CERCLA inform our interpretation of the term as it is employed in
§ 6972 of the RCRA.4
The legislative purpose behind the RCRA is also instructive. The RCRA
“‘is a multifaceted approach toward solving the problems associated with the
three-four billion tons of discarded materials generated each year.’” Cox, 256
F.3d at 295 n.24 (quoting H.R. Rep. No. 94-1491, Part I, at 2 (1976), reprinted in
1976 U.S.C.C.A.N. 6238, 6239). “Congress believed that by giving citizens
themselves the power to enforce [RCRA] provisions by suing violators directly,
they could speed compliance with environmental laws, as well as put pressure
upon a government that was unable or unwilling to enforce such laws itself.”
Greenpeace, Inc. v. Waste Techs. Indus., 9 F.3d 1174, 1179 n.2 (6th Cir.
1993)(citing H.R. Rep. No. 98-198, Part I, at 53 (1983), reprinted in 1984
U.S.C.C.A.N. 5576, 5612). Congress expressly intended the RCRA to “close
loopholes in environmental protection.” United States v. Waste Indus., Inc., 734
F.2d 159, 165 (4th Cir. 1984).
When read in light of its legislative intent, it is clear that the correct
interpretation of the term “facility” in § 6972(a)(1)(B) is one that encompasses
the entire former Southern Pacific railroad site. For the construction of “facility”
advanced by Union Pacific, one that would divide the former railyard into
4
Union Pacific attempts to distinguish Tanglewood on the ground that the “facility” at
issue there was a residential subdivision, rather than an industrial facility. However, as
neither the RCRA nor CERCLA distinguish residential from commercial or industrial
“facilities,” this is a difference without legal distinction under the statutes.
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No. 06-30570
several separate facilities along current property lines, would require a plaintiff
to bring numerous suits to effectuate the remediation of one large, discrete
pollution source. Such a result would slow, rather than speed, compliance with
environmental laws, and open, rather than close, a loophole in environmental
protection. It also defies common sense; if a single source of contaminants, like
the former railroad site, is to be adequately cleaned up, it must be done in a
comprehensive fashion. To remove the hazardous elements from only the Conco
tract would still leave that land vulnerable to the migration of the toxic elements
remaining just beyond its property line. Union Pacific’s proffered construction
of “facility”, then, is neither pragmatic nor consistent with Congressional intent.
Union Pacific also contends that the “facility” should be limited to the
Conco tract under the RCRA because Conco does not own the other tracts that
make up the former railroad site. However, nothing in the RCRA prevents a
plaintiff from bringing a suit implicating a facility in which he lacks a complete
or even a partial ownership interest. See § 6972(a)(1)(B). Indeed, we have
allowed such suits under the RCRA. See, e.g., Cox, 256 F.3d at 281 (allowing
RCRA suit by homeowners for cleanup of landfill facility in which plaintiffs had
no ownership interest); Such an approach is simply part-and-parcel with
expansive private attorney general provisions like that included by Congress in
§ 6972(a)(1)(B). Accordingly, we find no reason to limit the definition of “facility”
on this basis.
For the foregoing reasons, we hold that the district court correctly
determined that under § 6972(a)(1)(B) of the RCRA, the term “facility” can
encompass the entire former railroad site.
IV
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No. 06-30570
Union Pacific similarly argues that the district court erred in holding that
the entire former railroad site can compose a “facility” for purposes of the LEQA.
Again, Union Pacific contends that under the LEQA, a “facility” must be limited
to the Conco tract. The LEQA’s citizen suits provision provides that “any person
having an interest, which is or may be adversely affected, may commence a civil
action on his own behalf against any person whom he alleges to be in violation
of this Subtitle II [of Title 30] or of the regulations promulgated hereunder.” La.
R.S. 30:2026(A)(1). In its complaint, Conco alleges, in part, that Union Pacific
violated § 2273 because it (1) was an owner and/or operator of “a pollution source
or facility”; and/or (2) “generated a hazardous waste which was eventually
transported, stored, disposed of or discharged at a pollution source or facility”;
and/or (3) “disposed of or discharged a hazardous substance at a pollution source
or facility.” La. R.S. 30:2273. In § 2004(14), the term “facility” is defined, for
purposes of the citizen suits provision, as:
[A] pollution source or any public or private property or facility
where an activity is conducted which is required to be regulated
under this Subtitle and which does or has the potential to do any of
the following:
(a) Emit air contaminants into the atmosphere.
(b) Discharge pollutants into waters of the state.
(c) Use or control radioactive materials and waste.
(d) Transport, process, or dispose of solid wastes.
(e) Generate, transport, treat, store, or dispose of hazardous wastes.
La. R.S. 30:2004(14). In turn, § 2004(13) defines “pollution source” as:
[T]he immediate site or location of a discharge or potential
discharge, including such surrounding property necessary to secure
or quarantine the area from access by the general public.
La. R.S. 30:2004(13) (emphasis added). Conco alleges, and the district court
itself found, that pollutants and hazardous waste are located throughout the
entire former railroad site, clearly qualifying it as a “pollution source” under §
2004(13). Further, the facts found by the district court demonstrate that each
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No. 06-30570
tract composing the former railroad site has the potential to discharge pollutants
into the Chicot aquifer and that both existing conduits and groundwater could
further spread the contaminants beyond the site. These facts qualify the former
site as a “facility” under § 2004(14)(b) and (c).
Although Union Pacific nevertheless contends that the “facility” must be
limited to the property boundaries of the Conco tract, the language of LEQA
itself clearly suggests otherwise. By its plain terms, § 2004(13) defines “pollution
source” so expansively that the term can encompass not only the entire location
of a discharge of contaminants (such as the former railroad site) but the
surrounding property as well. This statutory language appears to reflect a
legislative choice to prioritize the thorough remediation of environmental
hazards over more narrow observation of property lines. This approach is
employed elsewhere in the LEQA as well. See La. R.S. 30:2204(c) (specifying
that a “hazardous waste site” includes “the entire contaminated area and may
extend beyond a facility’s boundary). In short, nothing in the LEQA suggests
that a “facility” must be limited to the property lines of the Conco tract.
Accordingly, we hold that the district court did not err in determining that the
entire former railroad site can constitute a “facility” for purposes of Conco’s
LEQA claims.5
V
For the foregoing reasons, we AFFIRM.
5
Union Pacific also contends that Conco cannot bring suit under LEQA § 30:2026
because it does not have an “interest which is or may be adversely affected.” Clearly, the
evidence in the record demonstrates (at a minimum) that Conco’s interest in the Conco tract
and its interest in the safety of its employees’ drinking water may be adversely affected by the
contamination located throughout the former railroad site. Accordingly, Union Pacific’s
argument on this issue fails.
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