United States District Court, E.D. Louisiana
RESIDENTS OF GORDON PLAZA, INC.
LATOYA CANTRELL, ET AL.
ORDER AND REASONS
Residents of Gordon Plaza, Inc. filed the instant motion for
partial summary judgment on defendants' second defense.
Rec. Doc. 19. Defendants timely filed a response in
opposition. Rec. Doc. 25. Plaintiff then sought, and was
granted, leave to file a reply. Rec. Doc. 33. For the reasons
discussed below, IT IS ORDERED that
plaintiff's motion for partial summary judgment is
GRANTED and defendants' second defense
BACKGROUND AND PROCEDURAL HISTORY
filed a citizen enforcement suit under the Resource
Conservation and Recovery Act (“RCRA”), alleging
that the Mayor and City of New Orleans (“the
City”) have imposed inhumane and dangerous living
conditions on residents of Gordon Plaza. Rec. Doc. 2 at 1.
Gordon Plaza is located on the former Agriculture Street
Landfill (“Landfill”) site, which the City of New
Orleans operated as a dump from 1909-1957 and reopened for
waste from Hurricane Betsy in 1965-66. Id. at 5.
Plaintiffs allege that the City disposed of hazardous and
solid waste at the Agriculture Street Landfill, and there are
presently levels of dangerous chemicals above government
standard. Id. at 6. Plaintiffs aver that the City
developed the Landfill for residential use in the 1970s and
1980s and marketed homes at Gordon Plaza to
African-Americans, withholding that the homes were located on
top of a toxic dump. Id. The EPA listed the Landfill
as a Superfund Site on the National Priorities List in 1994.
Id. at 7. Plaintiff asserts that from 1994 to 2001
the EPA installed inconsistent soil cover to limit
residents' exposure to landfill waste, before announcing
that it would require no further remedial action at the
Landfill in 2002. Id. Plaintiff states that
Hurricane Katrina further devastated the Landfill in 2005,
and flooding and time have since eroded the soil cover the
EPA installed, causing contaminated soil to wash out from
under homes and contaminate the surrounding area.
Id. Plaintiff avers that its members face the risk
of toxic chemical exposures, including to chemicals
associated with cancer, birth defects, and genetic damage.
Id. at 8-9. Therefore, plaintiff brings suit under
the RCRA against defendants, who plaintiff asserts are the
present and past operators of the disposal facility and have
contributed to the handling and disposal of solid and
hazardous waste that “may present an imminent and
substantial endangerment” to health or the
environment.” Id. at 10-11. Defendants filed
an answer denying plaintiff's claims and asserting
affirmative defense. Rec. Doc. 13.
filed the instant motion for partial summary judgment on
defendants' second affirmative defense of lack of subject
matter jurisdiction, arguing that it has no basis in law.
Rec. Doc. 19. Defendants timely filed a response in
opposition, arguing that they have properly pled as a defense
that plaintiff is not permitted to bring this suit under the
citizen suit provisions of the RCRA because defendants ceased
operation of the Landfill prior to enactment of the RCRA.
Rec. Doc. 25 at 2.
argues that defendants' second defense must be dismissed
because it has no basis in law. Rec. Doc. 19 at 1.
second defense asserts that this Court lacks subject matter
jurisdiction because no federal question is presented under
the Resource Conservation and Recovery Act
(“RCRA”). Rec. Doc. 13.
This Honorable Court lacks subject matter jurisdiction
because the operation of the Agriculture Street Landfill
ceased prior to enactment of the Resource Conservation and
Recovery Act (RCRA), 42 U.S.C. § 6901 et seq.,
which, therefore, does not apply in the premises and, hence,
no federal question is presented under the RCRA and the
Complaint asserts no other basis for jurisdiction Rec. Doc.
13 at 1. Plaintiff asserts that the plain language of the
RCRA authorizes injunctive relief against defendants based on
“the past or present handling, storage,
treatment, transportation, or disposal of any solid or
hazardous waste.” 42 U.S.C. § 6972(a)(1)(B);
Rec. Doc. 19 at 1. Furthermore, plaintiff avers that binding
Fifth Circuit precedent precludes the City's second
defense because in Cox v. City of Dallas, 256 F.3d
281, 298 (5th Cir.2001) the Fifth Circuit held that the RCRA
applied retroactively. Rec. Doc. 19-1 at 4. Therefore,
plaintiff argues that defendants' second defense is
invalid as a matter of law and should be dismissed.
Id. at 7.
argue that they have properly pled their second defense that
plaintiff is not permitted to bring this suit under the
citizen suit provisions of the RCRA. Rec. Doc. 25. Defendants
aver that the citizen suit provisions were not enacted until
1984, while the City has not operated the Landfill since
1966. Id. at 2. Defendants note that they have pled
their second defense in order to preserve this issue for
appeal and reconsideration by the Fifth Circuit, or in the
event of consideration by the Supreme Court in the interim.
Id. at 9. Regardless of whether this occurs,
defendants also argue that the Fifth Circuit's decision
in Cox is not as broad as proposed by plaintiffs and
does not permit retroactive application of the RCRA in all
circumstances. Id. Defendants assert that
retroactive application of the RCRA is limited to past actors
where endangerment currently exists, and their past action
constitutes a continuing violation. Id. Defendants
state that their second defense should be read together with
their third and fourth defenses, which address the lack of
jurisdiction of this Court. Id. at 3.
Defendants' third defense asserts that plaintiff lacks
standing as there is no injury in fact. Id. at 2-3.
In their fourth defense, defendants plead that this Court
lacks subject matter jurisdiction because they have been in
compliance with the Consent Decree entered by a court in
2008, in which the City undertook remediation and maintenance
obligations of the Landfill in lieu of financial obligations
after Hurricane Katrina. Id. at 5-6. Therefore,
defendants aver that there is a genuine issue of fact as to
whether defendants' past actions present an imminent and
substantial endangerment to health or the environment so as
to allow for retroactive application of the RCRA to
defendants. Id. at 10. Defendants assert that
summary judgment is not proper, and their second defense
should not be dismissed.
judgment is appropriate when “the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of
law.” Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986) (quoting Fed.R.Civ.P. 56(c)). A genuine issue of
material fact exists if the evidence would allow a reasonable
jury to return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). When the movant bears the burden of proof, it must
“demonstrate the absence of a genuine issue of material
fact” using competent summary judgment evidence.
Celotex, 477 U.S. at 323. But “where the
non-movant bears the burden of proof at trial, the movant may
merely point to an absence of evidence.” Lindsey v.
Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir.
1994). When the movant meets its burden, the burden shifts to
the non-movant, who must show by “competent summary
judgment evidence” that there is a genuine issue of
material fact. See Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, ...