Petition for Writ of Certiorari — Janik ex rel. Janik v. City of Dallas

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Suoreme Court, U.S.

‘ay ILI

WU eae

00 684 ocr 27 2000

No.

ae Shea

IN THE

Supreme Court of the United States

ERNEST A. JANIK, JR., individually, on behalf of Grant

Joseph Janik, on behalf of Tyler Newman Janik; LEAH

EILEEN JANIK, individually, on behalf of Grant Joseph

Janik, on behalf of Tyler Newman Janik,

Petitioners,

CITY OF DALLAS, TEXAS,

an incorporated municipality,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

JAMES J. S. JOHNSON, Esa.

Counsel of Record

P.O. Box 2952

Dallas, Texas 75221

817-430-9305 telephone

817-430-9306 FAX

Attorney for Petitioners

POON SIE eG LRT YY ORO

QUESTIONS PRESENTED

1. Whether the Fifth Circuit’s continued application of its

“bright line rule” in Friends of the Earth v. Crown Central

Petroleum Corp., 95 F.3d 358 (5th Cir. 1996), — notwithstand-

ing this Court’s Article III standing doctrine settled in Friends of

the Earth v. Laidlaw Environmental Services (TOC), Inc., 120

S.Ct. 693, 704, 707-708 (2000), — can justify dismissal of a

Clean Water Act citizen suit for past and continuing NPDES

permit violations.

2. Whether a district court’s factual detail requirements for a

Resource Conservation & Recovery Act (‘“RCRA”’) citizen suit

pleading in the alternative, — notwithstanding this Court’s ‘“‘no-

tice pleading”’ doctrine settled in Conley v. Gibson, 355 U.S. 41,

47, 78 S.Ct. 99, 103 (1957), — and notwithstanding a pending

Rule 15(d) motion to more definitely state the RCRA citizen

suit’s critical facts (involving disposed chemicals defined by the

E.P.A. in 40 CFR Pt. 122 as “‘hazardous substances”), — may

be dismissed as if a RCRA-based claim had not been pled.

3. Whether a nonmovant’s Rule 56(e) evidence, including

expert and fact witness declarations, may be deemed “undesig-

nated’’ (and thus be ignored without meaningful Rule 56 evalua-

tion), when the nonmovant’s Rule 56(e) initial objection omitted

pagination cites to such Rule 56(e) declarations, — notwith-

standing this Court’s substance-over-form norm settled in Celotex

Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553

(1986), — even though immediately cured by nonmovant.

4. Whether a district court’s Rule 56 rulings in a Clean Water

Act/R.C.R.A. citizen suit can avoid applying Article VI’s

Supremacy Clause to preemptively limit state “governmental

immunity” claimed by a city regarding its acts or omissions that

violate federal environmental statutes, — notwithstanding this

Court’s federalism doctrine and preemption ruling settled in

Sanitary District of Chicago v. U.S., 266 U.S. 405, 425-426, 45

S.Ct. 176, 178 (1924).

PARTIES TO THE PROCEEDINGS

Although this litigation has involved the City of Dallas and a

variety of insurance defendants, the City of Dallas, Texas, is the

only defendant, petitioners believe, having an interest in this

Petition for Writ of Certiorari.

The petitioners herein are the plaintiffs below, Ernest A. Janik,

Jr. and Leah Eileen Janik, individually and on behalf of their

minor sons, Grant Joseph Janik and Tyler Newman Janik.

The defendants at the trial court level were seven: the City of

Dallas, Texas, an incorporated municipality, plus the following

six “‘insurance defendants” (whose d/b/a’s are omitted as irrele-

vant to this appeal): Amica Mutual Insurance Company, a

Rhode Island company, Nobel Service Corporation, a Delaware

corporation, IAS Claim Services, Inc., a Delaware corporation,

Nobel Holdings, Inc., a Delaware corporation (dismissed by

summary judgment prior to trial), Insurance Adjustment Ser-

vices of Texas, Inc., a Texas corporation (dismissed by agree-

ment as defunct), and Floyd Myers (dismissed by agreement

before trial).

Of the seven trial court level defendants, only the following four

were parties at the circuit court of appeals level: the City of

Dallas, Texas, Amica Mutual Insurance Company, Nobel

Service Corporation, and IAS Claim Services, Inc.

At the circuit court of appeals level there was one appeal that

involved the City of Dallas, Texas, namely, 5th Circuit Appeal

No. 98-10781, which followed a summary judgment favoring that

city.

A trial was had on some of the Janiks’ claims against three of

the insurance defendants. An appeal that did not include the City

of Dallas as a party (but which arose from the same civil action)

followed said trial, namely, 5th Circuit Appeal No. 98-11369.

mma

The 5th Circuit administratively consolidated both of these two

appeals and simultaneously denied both appeals by an order of

July 6, 2000. This denial (which affirmed the district court’s

summary judgment for the city, and affirmed the district court’s

post-trial JNOV for the insurance defendants) was the subject of

the Janiks’ petition for a panel rehearing, which petition was

denied by the panel’s order of August 3, 2000.

In this Petition for Writ of Certiorari the Janiks are not seeking

review of the insurance-related rulings (i.e., the Janiks are not

herein seeking review of 5th Circuit Appeal No. 98-11369);

rather, the Janiks are herein seeking review only of the City of

Dallas-related summary judgment and its component interlocu-

tory rulings (i.e., the Janiks seek review of the affirmance in

5th Cireuit Appeal No. 98-10781).

Thus, the only real parties of interest in this proceeding,

petitioners believe, are the above-named family of plaintiffs

(“Janiks”) and the City of Dallas, Texas, a municipality

(“‘city’’).

As a matter of informational completeness, there remains yet

another appeal now pending in the Fifth Circuit that involves the

insurance “half” of this litigation; — that appeal is 5th Circuit

Appeal No. 99-11385, but that pending appeal (which involves

Rule 59 and Rule 60 motions) does not involve the City of Dallas

as a party and is not legally relevant to any of the four legal

questions presented in this Petition for Writ of Certiorari.

TABLE OF CONTENTS (for petition)

Page

Gea CUNEEEED vc scccidnsessectsdsecens i

PARTIES TO THE PROCEEDINGS .................. ii

TABLE OF CONTENTS (for petition) ................ iv

TABLE OF CONTENTS (for appendix) .............. V

pe ei se er rrr rear vii

OPINIONS AND DECISIONS BELOW................ 1

Te aT rr ay Pere ry ee 1

STATUTES & OTHER FEDERAL LAWS INVOLVED .. 1

SIATEeeEaes OF Bit CASE 2... ccc ccccccccsccececs 2

REASONS FOR GRANTING THE PETITION.......... 4

(1) The Judgment (below) in the Janik case, being

based on Crown Central, conflicts with Laidlaw,

and also conflicts with non-5th Circuit court

NS 6.8 keane ek bed Phe he Mee eea ees 4 |

(2) The Judgment (below) in the Janik case, being

based on pleading standards other than ‘‘notice

pleading’ and Rule 15(d) standards, conflicts

with Conley and also conflicts with non-5th

Cees CUS WD hi koh acne descabnateadaae 17

(3) The Judgment (below) in the Janik case, being

based on a pagination-indexed requirement that

deemed Rule 56(e) proof as ‘‘undesignated”’

despite immediate cure, conflicts with Celoter ... 22

(4) The Judgment (below) in the Janik case, being

based on state “immunity” and governmental

“diseretion”’ to avoid compliance with federal

environmental laws (an NPDES permit and

RCRA), conflicts with Sanitary District of

Chicago (and with other Supremacy Clause case

BP ree Pee rt ati hee aan 24

TABLE OF CONTENTS FOR APPENDIX

(separate volume, supporting Petition for

Writ of Certiorari)

APPENDIX’S PART “A”:

JUDGMENT AND DECISIONS BELOW (in reverse

chronologicat order)

Order of 8-3-2000 denying panel rehearing .......--

Untitled order of 7-6-2000 denying appeal......-.--.

Order entered 6-30-1998 [Doc #360] .........+---

JUDGMENT entered 5-28-1998 [Doc #352] .......

Order entered 5-26-1998 [Doc #350] .........+---

Memorandum Opinion & Order entered 5-13-1998

[Doc #848] 2.2... cece cece cee e cence enereees

Memorandum Opinion & Order entered

4-17/20-1998 [Doc #342] ......-- cece eee e eee

Order of 11-20-1997 [Doc #301] entered........-.

Memorandum Opinion & Order entered 10-15-1997

[Doc #288] 2.2... c cece cece cee cceeceneceeeres

APPENDIX’S PART “B”:

STATUTES, RULES, & OTHER LAWS INVOLVED

U.S. Constttn., Article II], Section 2 .........------

U.S. Constttn., Article VI, Supremacy Clause........

Certiorari statute 2.0... ccc ccc ccc ccccassccscces

Clean Water Act statutes..........-.- ee eee eee eeee

Resource Conservation & Recovery Act statutes......

40 CFR Pt. 122, Appendix D, Table V, page 568 ....

EPA-issued NPDES Permit for City of Dallas .......

Federal Rules of Civil Procedure, Rule 15.......-.-.

Federal Rules of Civil Procedure, Rule 56........---

Texas Constttn., Article I, § 17 (Takings Clause) ....

A-37

Texas Tort Claims Act statutes ...................

APPENDIX’S PART “C”:

OTHER MATERIALS NEEDED FOR

UNDERSTANDING THE PETITION

Plaintiffs’ Notice of Appeal filed 6-25-1998 (re 5th

Circuit Appeal 98-10781) [from Doc #358] ......

Brandon (M.D.) Declaration filed 3-10-1997 [from

08 ORES acccactanss tndsceeenkiaa eee

Brandon (M.D.) Declaration filed 1-5-1998 [from

00 OGRES oc cn cvacadcésadendvdkekietenseneeee

McElyea (P.E.) Declaration filed 1-7-1998 [from

Due OO0EY .cccectisscetiaee eee

Plaintiffs’ Motion for Leave to Supplement filed 5-22-

ROSS EFPUNS DOO GGEGs oc ckicscccckcncdncbeices

Plaintiffs’ Exhibit ““Supplement”’ to Plaintiffs’ Motion

for Leave to Supplement filed 5-22-1998 [from

00 @GGE) vicnsvsicsecesssssbissseeee

Janik Declaration filed 2-3-1997 [from Doc #85] ....

Janik Declaration filed 2-24-1997 [from Doc #132] ..

Janik Declaration filed 11-12-1997 [from Doc #328}

Biological Hazards Excerpt from Janik Declaration

filed 2-3-1997 [from Doc #85] .................

City First Amended Original Answer filed 4-25-1997

frames U0 DIGGS v wndncvicadcachsesi avons

Brief of Appellee City Dated 12-9-1998.............

B-34

vii

TABLE OF AUTHORITIES

A. Cases Alphabetically Arranged

Ballenger v. Grand Saline, 276 S.W.2d 847 (Tex. Civ.

hints, 20 Wn IA as caves bch tscaSanatadaniwasaks 15

Celoter Corp. Catrett, 477 U.S. 317, 106 S.Ct. 2548

SOE in isda Ss baie as de i,23-24

City of Tyler v. Likes, 962 S.W.2d 489 (Tex. 1997) .......

Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99

SD a0 eso bi vadeereksakdtAsnces uvodeasenccion i,18,20

Dague v. City of Burlington, 935 F.2d 1343 (2nd Cir.

PED nckesnacoddakadns ceeded ckseeunn kek cceus eens 21

Driscoll v. Adams, 181 F.3d 1285 (11th Cir. 1999) ....... 17

Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227 (1962) ...... 18

Friends of the Earth v. Crown Central Petroleum Corp.,

95 F.3d 358 (Sth Cir. 1996)..........:...... i,4-10,13,16

Friends of the Earth v. Gaston Copper Recycling, 204

F.3d 149 (4th Cir. 2000), en banc reversing 179 F.3d

ee ee Es nace nb bdeedesbsssesesbeuesns 7,17

Friends of the Earth v. Laidlaw Envtl. Servs.

(TOC), Inc, _—*US. __,, 120 S.Ct. 693

SN Ti thhdes cde ened cos see ueseeuvces i,4-5,7-13,17,30

LaSalvia v. United Dairymen, 804 F.2d 113 (9th Cir.

1986, cert. denied, 482 U.S. 928, 107 S.Ct. 3212

SEE dindededkun cdaShi ki hwavoawdadnteekeinew ues 19

Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct.

a ee ere eer errr 8,12n.3

Middlesex County Sewerage Auth. v. Nat'l Sea Clammers

Assn., 453 U.S. 1, 101 S.Ct. 2615 (1981) ............ 8,17

Newton v. Highland Park, 282 S.W.2d 266 (Tex. App. —

I a 15

Patterson Farm, Inc. City of Britton, S.D., 22 F.Supp.2d 1085

Se SEN tncedadesthncbbucssadesekaweaaks 7,19,23

PIRG of N.J., Inc. v. Magnesium Elektron, Inc.,

Ee ee BAe GRU GO BED ho hctiniccddcdssdecsdeess 5-6

viii

Quarantino v. Tiffany & Co., 71 F.3d 58 (2nd Cir.

EE ENR KOE a: GAS SER om fe IE NE oP 19,22

Sanitary District of Chicago v. United States,

266 U.S. 406, 45 S.Ct. 176 (1984) 2... cece ccc caces i,25

Shade v. City of Dallas, 819 S.W.2d 578 (Tex. App. —

ee Oe Pe eeer eau Sea ees 29

Sierra Club v. Simkins Indus., 847 F.3d 1109

Se Ee SE execs pebe ahs oooh se eee een een 6 mens 6-7

Train v. Colorado PIRG, 426 U.S. 1, 96 S.Ct. 1938

| Per rr rr er res Sere Sree 16

United States v. Allegheny Metal Finishing Co., 696

ae, SEE COU. ED os wat nba de wan bees aawe x 27

United States v. Eidson, 108 F.3d 1336 (11th Cir.

FE re ee Pr er aey Poni ay gaye 17-18

United States v. Gulf Park Water Co., Inc., 972 F.Supp.

Re Rg re re re eer rey 27

Ward v. Coleman, 423 F.Supp. 1352 (D.C.Okla. 1976) .... 27

Waste Action Project v. Dawn Mining Corp., 137 F.3d 1426

NT. EE Wade knas decent ddd cbvarnedaaed ka Car 16

Wyoming v. Oklahoma, 502 U.S. 437, 112 S.Ct. 789

PE Eee Creek seh ce Pek A wes ARR e 27

B. Constitutional Provisions

U.S. Constitution,

BE NE isn hn Ok-cakwds vawesek ns endenss i,1,4-17,30

Article VI, Supremacy Clause ................... 1,1,24-27

Texas Constitution,

I EOE bs bobs cdocedad0sebenessbesaeeruae 25

C. Statutes

Certiorari statute

ee We It ROREED 00d bur ordsccaccedencusrscnaeuna 1

Clean Water Act

ee a EE wd acd ckcdactoikxedeneseteieteteean 16

Pe as TE EE - on dood ca¥esadtns do teass eee 13,16

ee Wes SE hk dce 408505 000500 ss ee 13,16

Oe Ges wna wa sehaaneweawes i,4-9,13,16,24-25,30

Resource Conservation & Recovery Act (““RCRA’’)

RE ok cs iva coe co as a keke se ocean aees 20

I ee ie ga ee pa eae 20

5a agape kak oa SERRE oe 20

nn I og oc a ge i,18-22,24-25,30

Texas Tort Claims Act

Tex. Civ. Prac & Rems. Code, § 101.021 ............... 25

Tex. Civ. Prac & Rems. Code, § 101.0215 .............. 25

Tex. Civ. Prac & Rems. Code, § 101.056.......... 25,27-28

D. Treatises & the Like

Prosser, Wade & Schwartz,

Cases & Matrials on Torts, 7th ed. (Foundation, 1982),

a ae a uae nw adeks 14-15

E. Other Materials Cited as Authorities

Federal Rules of Civil Procedure

EEE, Sanecudeu ns 1 be5h Fen oo ese 4h ep souk ae i,1,18-23

IES A eC en a 1,3,14n.5,23-25

| EI SOE Ce TEEPE TEE TT ECPI OE i,15,23-24

40 Code of Federal Regulations (‘Protection of Environment’’),

Part 122, Appendix D, Table V, page 586......... 18,22,30

NPDES Permit for the City of

I as 1,2,4,12-13,15,17,26-30

Y.B. 27 Hen. VIII, Mich., pl. 10 (England, 1536) ......... 14

Brunet,

“Summary Judgment Materials,” 147 F.R.D. 647

REARS Paitin Naki EF ne ores Se 9 no 24

Keeton,

“Trespass, Nuisance and Strict Liability,” 59 Colum. L.

I rg a es ad ae xd 14

McRae,

“Development of Nuisance in the Early Common Law”

De es Ba a ED ch ch cede dows vdesccenes 14

1972 U.S. Code & Cong. Adm. News, p. 3668............. 16

1977 U.S. Code & Cong. Adm. News, p. 4326............. 16

OPINIONS BELOW

The district and appellate court rulings and opinions below are

all unpublished decisions. In reverse chronological order they are:

the Fifth Circuit’s Order of 8-3-2000 denying panel rehearing;

the Fifth Circuit’s uncaptioned ruling of 7-6-2000 denying ap-

peal; and the following rulings of the district court below: Order

entered 6-30-1998 /#360]; Judgment entered 5-28-1998

[#352]; Order entered 5-26-1998 /{#350]; Memorandum

Opinion & Order entered 5-13-1998/#343]; Memorandum

Opinion & Order entered 4-17/20-1998 [#342]; Order en-

tered 11-20-1997 {/#301]; and Memorandum Opinion & Order

entered 10-15-1997 [#238]. The text of these rulings and

opinions are set forth in the Appendix’s Part “A”.

JURISDICTION

Petitioners’ timely appeal in the court of appeals below was

denied by an order entered July 6, 2000 (see Appendix

Part “‘A”). A timely petition for panel rehearing was thereafter

denied by the court of appeals by an order entered August 3, 2000

(see Appendix Part ‘“‘A’’). This Court’s jurisdiction is now invoked

under 28 U.S.C. § 1254(1).

STATUTES & OTHER FEDERAL LAWS INVOLVED

The statutes & other federal laws involved are: the

U.S. Constitution, Article III’s Section 2 and Article VI’s

Supremacy Clause; Clean Water Act statutes; Resource Conserva-

tion & Recovery Act statutes; portions of the E.P.A.-issued

NPDES Permit for City of Dallas; and Federal Rules of Civil

Procedure, Rule 15(d) and Rule 56. The text of these statutes

and other federal laws are set forth in the Appendix’s Part “B”.

STATEMENT OF THE CASE

Procedural History. The final judgment below blended a

few interlocutory partial summary judgments (Clean Water

Act, etc.) with a judgment on the pleadings (RCRA claim).

In 1993 untreated sewage wastewater harmed the Janiks,

personally, and their property. In 1995 the Janiks sued the City of

Dallas and various insurance entities on claims relating to the

Janiks’ personal injuries and property damages, combined with a

Clean Water Act citizen’s suit. After some discovery, cross mo-

tions for summary judgment were filed. Interlocutory partial

summary judgments were granted to the City of Dallas, then

vacated, revised, then quasi-reinstated. The trial court entered

Judgment on May 28, 1998 (Doc #352) as to claims against the

City. That Judgment relied upon prior memorandum opinions and

orders (“rulings”) entered below, i.e., rulings entered 10-15-

1997 (Doc #238), 11-20-1997 (Doc #301), 4-17(20?)-1998

(Doc #342), 5-13-1998 (Doc #343), and 5-26-1998 (Doc

#350). The Fifth Circuit panel affirmed and denied a rehearing.

Statement of Relevant Facts. On 10-31-1993 untreated sew-

age wastewaters of the City of Dallas were discharged in a

manner not authorized by the city’s EPA-issued Clean Water Act/

NPDES permit (‘‘polluter’s permit”), with most of the untreated

sewage wastewater invading the home of the Janiks prior to its

draining into the Trinity River. This physical invasion of the

Janiks property by ten-thousands of gallons of untreated munici-

pal sewage waters, and the biohazardous contaminants there-

from, substantially and illegally interfered with the Janiks’ use

and enjoyment of their home and related personal property items,

and sickened them. Doc #85 at 3-19; Doc #318 at 8-11;

Doc #140 at 1-5.

This unauthorized pollution discharge produced ongoing harm

to the Janiks’ health, safety, and property during 1993 (and

after), and revealed unauthorized conditions and practice of the

ay SUR ek CN

Se os ake eects ee

City of Dallas, as to similar biohazardous contaminations, that

continue to jeopardize the health, safety, and property of the

community at large, due to the past and current problems with

Dallas’ sanitary sewer system. Doc #331 at 1-5; Doc #332 at 3.

The Rule 56 evidence shows that the city did not attempt to

fulfill its Clean Water Act polluter’s permit-mandated duties (to

preventively protect against, report, and remedially mitigate the

human health-jeopardizing adverse impacts and threats of its

unpermitted discharge of pollutants) to the Dallasites involved.

This unfixed and unmitigated situation has harmed U.S. waters

in the tributary network of the Trinity River, since the city’s

unpermitted discharge of untreated sewage wastewater routinely

contains at least 21 hazardous substances, in addition to raw fecal

coliforms, and thus the environment is still at substantial risk.’

Doc #318 at 11-18. Continuing risks of recurrences to Dallasites

(including the Janiks) are still imminent, according to expert

declarants Brandon (M.D.), Egbert (P.E.), and McElyea (P.E.).

Continuing risk of such recurrences involve substantial endanger-

ment to all Dallasites who (even to date) are serviced by Dallas

Water Utilities; so potential for repeat of such injuries and

damaged property remains. See Doc #188 at 11-38, 59-63, 75-

82; Doc #119 at 1-5H; Doc #82’s Exhibit “B’; Doc #118 at 1-

3; Doc #115 at 2-3; Doc #318 at 11-18; Doc #122 at 1-4;

' Doc #318 is Dr. Brandon’s DECLARATION WITH EXPERT OPINIONS

RELEVANT TO SEWAGE-BORNE HAZARDOUS WASTES (filed 1-5-1997), a

copy of which was attached as Exhibit “B” to Doe # 326 (plaintiffs’

Objection filed 1-7-1998), which identifies and discusses (at the

declaration’s pages 14-18) 21 EPA-defined “hazardous wastes”

reported to the EPA as being found in the City of Dallas’ untreated

sewage influent: acetaldehyde, allyl alcohol, aniline, benzyl chloride,

carbaryl, carbofuran, carbon disulfide, cresol, cyclohexane, dimethyl

amine, disulfoton, ethylene dibromide, formaldehyde, furfural, me-

thoxychlor, methyl methacrylate, parathion, phosgene, resorcinol,

strychnine, and triethylamine. Regarding plaintiffs’ good faith asser-

tion of a Clean Water Act citizen suit, see Doc #148 at 1-5.

Doc #130 at 3-37; Doc #85 at 3-19, 40-41; Doc #331 at 1-5;

Doc #332 at 3.

REASONS FOR GRANTING THE PETITION

1. Article III Standing Issue for Clean Water Act Case.

This Court should grant a reversal, to correct the Fifth Circuit’s

continued application of its “bright line rule” in Friends of the

Earth v. Crown Central Petroleum Corp., 95 F.3d 358 (5th Cir.

1996), which conflicts with Court’s Article III standing doctrine

settled in Friends of the Earth v. Laidlaw Environmental

Services (TOC), Inc., 120 S.Ct. 693, 704, 707-708 (2000).

Otherwise, the Fifth Circuit will continue to affirm district court

dismissals of Clean Water Act citizen suits, for past and continu-

ing NPDES permit violations, in cases where plaintiffs have

Article III injuries-in-fact that satisfy Laidlaw but do not satisfy

the Fifth Circuit’s narrower gatekeeping in Crown Central.

In more particularized summary, this first federal question is

whether the Fifth Circuit’s continued reliance upon the “bright

line rule” in Friends of the Earth v. Crown Central Petroleum

Corp., 95 F.3d 358, 360-361 (&th Cir. 1996), — notwithstanding

this Court’s Article III ruling in Friends of the Earth v. Laidlaw

Env’l Services (TOC), Inc., 120 S.Ct. 693, 704, 707-708

(2000), — improperly deprived petitioners of their right to seek

citizen suit relief under Section 505 of the Clean Water Act

(33 U.S.C. § 1365), for their own past and continuing injuries

caused by a city’s NPDES permit violations, namely, both actual-

ized and threatened injury to petitioners’ human health and

private property, and also to the environment, including continu-

ing risks of injury to the tributary network of a navigable river.

This Article III question involves a “split” in the circuit courts

of appeals on Article III standing, an important federal question.

(See Supreme Court Rule 10(a), regarding ‘“‘conflicts” in the

circuit courts of appeals. )

The Fifth Circuit continues, despite Laidlaw, to deny Article III

standing recognition to Clean Water Act citizen suitors who do not

fit its rigid and exclusive three-part formula set forth in F’nends

of the Earth v. Crown Central Petroleum Corp.,

95 F.3d 358, 360-361 (5th Cir. 1996) (‘Crown Central’), —a

test which the Third Circuit calls a “bright line rule’’:

In a case similar to the one before us, the Fifth Circuit held

that “an individual without standing to sue for discharge

violations, a fortiori, lacks standing to sue for reporting

violations.” Friends of the Earth, Inc. v. Crown Central

Petroleum Corp., 95 F.3d 358, 362 (5th Cir. 1996) (af-

firming lower court’s dismissal of emissions claims and moni-

toring and reporting claims). Because we think that it is at

least possible that some plaintiff in the future might

allege a specific and concrete injury arising from a

defendants’ failure to monitor and report its effluent

discharges, we will not adopt the Fifth Circuit’s [Crown

Central] bright line rule.

Quoting PIRG of New Jersey, Inc. v. Magnesium Elektron, Inc.,

123 F.3d 111, 124 (3rd Cir. 1997) (emphasis added). In effect,

the Janiks’ case would not have been dismissed on Article III

standing grounds if its had been brought in a court that followed

the Third Circuit’s view of Article III, as opposed to the Fifth

Cireuit’s view of Article III:

For example, a [Clean Water Act citizen suit] plaintiff

might have reason to fear the toxicity of fish in a river due to

a defendant’s past pollution of that river, which had resulted

in injury to others. Were the defendant to then fail to monitor

and report its effluent, the plaintiff might reasonably decide

to forego eating fish from the river. Such a result might

constitute the type of injury in fact necessary to support the

plaintiff's [Article III] standing to sue.

Quoting PIRG of New Jersey, Inc. v. Magnesium Elektron, Inc.,

123 F.3d 111, 124 at footnote 9 (3rd Cir. 1997).

The “‘split’”” between the Fifth and Fourth Circuits, on this

Article III gatekeeping question, has been observed and discussed

by a district court within the Eighth Circuit:

The Third Circuit recently addressed this precise issue,

noting the apparent split in the Circuits. Public Interest

Research Group v. Magnesium Elektron, Inc., 123 F.3d 111

(8d Cir.1997). In [Sierra Club v.] Simkins Indus.,

[847 F.3d 1109 (4th Cir. 1988),] only monitoring and

reporting violations were alleged; nevertheless, the Fourth

Circuit did find that the plaintiff had standing because such

violations hindered environmental policy-makers “who might

undertake to remedy the effects of any pollution.” 847 F.3d

at 1113.... The Fifth Circuit, on the other hand, has adopted

a bright line rule that “an individual without standing to sue

for discharge violations, a fortiori, lacks standing to sue for

reporting violations,’ Jd. (quoting Friends of the

Earth, Inc. v. Crown Central Petroleum, 95 F.3d 358, 362

(5th Cir. 1996) ). The Third Circuit decided not to adopt this

bright line rule, reasoning that “‘it is at least possible that

some plaintiff in the future might allege a specific and

concrete injury arising from a defendant’s failure to monitor

and report tis effluent discharges ...” Jd. ...

Neither the United States Court of Appeals for the Eighth

Circuit nor apparently any District Court in the Eighth

Circuit has been called upon to decide a question similar to

that presented here. This Court finds the rule developed by

the Fourth Circuit [in Semkins Indus. ] to be the proper rule

and holds that plaintiff does have standing to pursue its

claims against the City for the alleged ongoing violations of

the terms and conditions of the NPDES permits. As ex-

plained in Simkins Indus., because the definition of an

“effluent standard or limitation” under 33 U.S.C.

§ 1365(f)(6) includes “a permit or condition thereof is-

sued under § 1342,” a violation of permit conditions is a

violation of the effluent standard or limitation. 847 F.2d

at 1117. ... Moreover, “[ujnless a permit holder monitors

as required by the permit, it will be impossible for state and

federal officials charged with enforcement of the Clean Water

Act to know whether or not the permit holder is discharging

effluents in excess of the permit’s maximum levels.”’ Jd.

Quoting from Patterson Farm, Inc. v. City of Britton, S.D.,

22 F.Supp.2d 1085 1093 (D.S.D. 1998).

Furthermore, the Fourth Circuit’s approach to Clean Water Act

citizen suit standing qualifications — in contrast to the “bright

line rule” of the Fifth Circuit’s Crown Central holding — can be

seen in Friends of the Earth v. Gaston Copper Recycling,

204 F.3d 149 (4th Cir. 2000), en banc reversing 179 F.3d 107

(4th Cir. 1999):

Standing inquiry in environmental cases, for example,

must reflect the context in which the suit is brought. In some

instances, environmental injury can be demarcated as a

traditional trespass on property or tortious injury to a person.

In other cases, the damage is to an individual’s aesthetic or

recreational interests. The Supreme Court has made it clear

that such interests may be vindicated in the federal courts.

see, e.g., Friends of the Earth v. Laidlaw Envtl. Servs.

(TOC), Inc., ... 120 S.Ct. 698, 705...

Quoting 204 F.3d at 154. Thus, economic and non-economic

injuries may be asserted by Clean Water Act citizen suit plaintiffs,

if they are “among the injured” — so that the suitor is a truly

interested stakeholder in the litigation’s eventual outcome. Id. If

so, Clean Water Act’s citizen suit gates should be opened:

In addition to meeting the “‘irreducible’’ constitutional

minimum, Lujan v. Defenders of Wildlife, ... an individual

must also satisfy any statutory requirements for standing

before bringing suit. As noted earlier, the citizen suit provi-

sion of the Clean Water Act confers standing on any “person

or persons having an interest which is or may be adversely

affected.” 33 U.S.C. § 13865(g). The language chosen by

Congress confers standing on a “‘broad category or potential

plaintiffs” who “can claim some sort of injury,” be it actual

or threatened, economic or noneconomic. National Sea

Clammers, 453-U.S. at 16-17, 101 S.Ct. 2615. The Su-

preme Court recognized in National Sea Clammers that this

[statutory] grant of standing reaches the outer limits of

Article III. Jd. at 16, 101 S.Ct. 2615 (“It is clear from the

Senate Conference Report that this phrase was intended by

Congress to allow suits by all persons possessing standing

under this Court’s decision in Sierra Club v. Morton.’’)

Thus, if a Clean Water Act plaintiff meets the constitutional

requirements for standing, then he ipso facto satisfies the

statutory threshold as well.

Quoting Gaston Copper Recycling, 204 F.3d at 155.

Besides a ‘“‘split” in the federal circuits, this Article III question

involves a deviation from the U.S. Supreme Court’s most recent

precedent, by a circuit court of appeals, on Article III standing, an

important federal question. (See Supreme Court Rule 10(c), on

conflicts by circuit courts of appeals with federal law “settled”

by this Court.) The Fifth Circuit continues, despite Lazdlaw, to

deny Article III standing recognition to Clean Water Act citizen

suitors who do not fit its rigid and exclusive three-part formula set

forth in Friends of the Earth v. Crown Central Petroleum Corp.,

95 F.3d 358, 360-361 (5th Cir. 1996) (“Crown Central”), —a

test which this Court has very recently “‘settled’’ by indicating

that the quintessential Article III inquiry, in a Clean Water Act

citizen suit, is a continuing “injury to the plaintiff,” as opposed to

a continuing “injury to the environment”:

The relevant showing for purposes of Article III standing,

however, is not injury to the environment_but injury to the

plaintiff.

Laidlaw, 120 S.Ct. at 704.”

On example of a Laidlaw plaintiff, who claimed an injury-in-

fact due to NPDES violations, was Gail Lee:

Gail Lee attested that her home, which was near Laidlaw’s

facility, had a lower value than similar homes located further

from the facility, and that she believed the pollutant dis-

charges accounted for some of the discrepancy.

Id. at 705.

In effect, the trial court below used a 1996 Fifth Circuit case for

an Article III “standing” application that now conflicts with this

Court’s holding in Laidlaw, yet the Fifth Circuit panel below, —

despite specific citation to this conflict (see Janiks’ Petition for

Panel Rehearing, pages 2-6), — did not vacate its discussion-

less reliance on that ruling, such that the Fifth Circuit panel below

continued its conflict with this Court’s Laidlaw ruling.

Why? In the proceedings below, the trial court grounded (and

limited) its disposal of the Clean Water Act claim on its own

application of the Friends of the Earth v. Crown Cent. Petrol.

Corp., 95 F.3d 358 (5th 1996), by saying:

To establish constitutional standing, plaintiffs must show

(1) actual or threatened injury, (2) fairly traceable to the

City’s actions, and (3) that the injury will likely be redressed

if they prevail in the lawsuit. Friends of the Earth, Inc. v.

Crown Cent. Petroleum Corp., 95 F.3d 358, 360 (Sth Cir.

1996) ...

The court need only address the second element because

the plaintiffs have failed to meet the requirement that the

injury be “fully traceable” to any City violation. To establish

that their injury is “fairly traceable” to the City’s discharge,

plaintiffs must establish that the City “has (1) discharged

some pollutant in concentrations greater that allowed by its

permit (2) into a waterway in which the plaintiffs have an

interest that is or may be adversely affected by the pollutant

and that (3) the pollutant causes or contributes to the kinds

of injuries alleged by the plaintiffs.” Friends of the Earth

[v. Crown Central], 95 F.3d at 360-61. ... Plaintiffs have

failed to adduce any evidence that they have an interest in

the Trinity River, which is the relevant waterway in this case.

Nowhere in their motion or response do plaintiffs identify

their specific interest in the Trinity River. Plaintiffs have

therefore failed to raise a genuine issue of material fact on

this issue and to prove this element. The court holds that

plaintiffs lack standing to assert a discharge violation under

the Clean Water Act.

Order of 4-16-1998 (Doe #342), pages 2-3 and 4-5. The Fifth

Circuit panel below effectively adopted Crown Central’s “river

interest” condition/ position without any appellate opinion discus-

sion, thus effectively applying the “river interest’’ test to the

Janiks. But discussion is needed! The “stakeholder” approach to

nuisance “standing”’ analysis has just been ratified once again, by

this Court in Laidlaw 120 S.Ct. at 707-708 (7-to-2 holding in a

Clean Water Act/NPDES permit-related case decided on Arti-

cle III “standing” question).

Thus, a “river interest” condition is not per se required by

Article III's “standing” doctrine, because it is the injury to the

plaintiffs, and not to the river, that is critical:

The relevant showing for purposes of Article III standing,

however, is not injury to the environment but injury to the

plaintiff. To insist upon the former rather than the latter as

part of the standing inquiry (as the dissent in essence does,

post, at 713-714) is to raise the standing hurdle higher than

the necessary showing for success on the merits in an action

alleging noncompliance with an NPDES permit. Focusing

properly on injury to the plaintiff, the District Court found

that [the NPDES permit violations-alleging plaintiffs] had

demonstrated sufficient injury to establish standing. ...

Laidlaw, 120 S.Ct. at 704. Thus, the authoritative standard for

screening “standing” in a Clean Water Act-based/NPDES permit

violations case is whether the plaintiffs were injured by NPDES

permit violations (and not whether proof of plaintiffs’ injuries

must be yoked to proof of an “environmental injury” to a

particular river wherein they have a special “interest” ). Laidlaw,

120 S.Ct. at 705 (illustrating how plaintiff Gail Lee’s pollutant

discharge-affected economic interests can satisfy Article II] stand-

ing in a Clean Water Act/NPDES permit violation context).

The Janiks did submit competent summary judgment evidence,

aS a nonmovant, showing that each of the three Laidlaw standing

elements would be provable at trial, i.e., that:

(1) the Janiks suffered an “injury in fact” that was/is

(a) concrete and particularized and (b) actual or

imminent;

(2) the Janiks’ injuries were/are “fairly traceable” to the

challenged conduct of the defendant; and

(3) it is likely, as opposed to merely speculative, that the

injury will be “redressed” by a favorable decision.”

First, the Janiks showed they could present evidence at trial

that they suffered “injuries in fact.” Doc #85 (esp. pp. 3-7, 40,

describing sicknesses and property damage due to city sewage

flooding contaminations); Doe #140(esp. pp. 1-5); Doe #140

* See Laidlaw Env'l, 120 S.Ct. at 704, following Lujan v. Defenders of

Wildlife, 504 U.S. 555, 112 S.Ct. 2130 (1992).

(pp. 1-5, providing medical data and diagnoses of Janik sickness

as caused by untreated sewage flooding and sewage-produced

bioaerosol exposures); RECORD EXCERPTS Tab M (pages 6, 40)

and Tab N (page 3); 98-10781 Opening Brief (pp. 3-4).

Second, the Janiks showed they could present evidence at trial

that their injuries were “fairly traceable” to the City’s strict

liability violations of its EPA-issued NPDES permit, e.g., allowing

an “overflow not specifically authorized” in the City’s NPDES

permit (violating Part II’s page 17, § E); failing to “take all

reasonable steps to minimize or prevent any discharge in viola-

tion” of its NPDES permit that “thas a reasonable likelihood of

adversely affecting human health or the environment”’ (violating

Part III's § B’s 92). See Doe #331 (pp. 1-5, sewer system not

fixed yet); Doe #188 (pp. 27-35); Doe #122(p. 3, 912);

Doc #140 (pp. 1-5, providing medical diagnoses of Janik sickness

as caused by sewage flooding and related sewage-bioaerosoi

exposures); Doe #318 (pp. 1-14, esp. p. 10, providing medical

diagnoses of Janik illnesses as being caused by sewage flooding

and sewage-bioaerosol exposures); Record Excerpts Tab M

(pp. 12-13) and Tab O (pp. 7-8); Opening Brief (pp. 8-20).

Third, the Janiks showed they could present evidence at trial

that the relief sought satisfies ‘“redressability,’”’ because

§ 1365(d) relief may include injunctive relief, appointment of a

master, and deterrence catalyzed by civil penalties.* Doc #188

(pp. 30, 86); Record Excerpts Tab P (showing how the

plaintiffs’ proof of NPDES violations can satisfy Clean Water Act

“public nuisance”’ goals while simultaneously proving “‘nuisance

per se” as a yoked “private nuisance”’ claim, as discussed in the

Opening Briefs pages 8-16).

The trial court denied that the Janiks were sufficiently con-

cerned “‘stakeholders” qualified to bring a citizen suit challenging

the city’s failure to fulfill its Clean Water Act-based NPDES

* Laidlaw Env'l, 120 S.Ct. at 706.

polluter’s permit-mandated duties to preventively protect against,

to report, and to remedially mitigate the human health-jeopardiz-

ing impacts and ongoing threats of unpermitted discharge of

pollutants onto Dallasites and/or their private property.

In Friends of the Earth, Inc. v. Crown Cent. Petrol. Corp.,

95 F.8d 358 (5th Cir. 1996), — to the extent that any “‘stand-

ing” analysis in Crown Central survives Laidlaw, — an “‘extra”’

“standing”’ formula was used, but it only makes sense if applied

to a citizen’s suit primarily focusing on injury to “the environ-

ment,” which is but one of the two Clean Water Act concerns, the

other being “human health.” But the standing question relevant

to the Janiks’ identity as “stakeholders” qualified to sue as

citizens to enforce the Clean Water Act is whether their “‘special”’

human health-oriented injuries are “traceable” to the city’s viola-

tions of its permitted right to discharge pollutants in accordance

with the strict liability parameters of its EPA-issued NPDES

permit. See 33 U.S.C. § 1865(g) (defining “citizen’’?) and

33 U.S.C. §1311(a) (defining “unlawful” noncompliance by

cross-references, e.g., the NPDES section, § 1342), in conjunc-

tion with 33 U.S.C. § 1342 (defining the NPDES polluter’s

permit program) and 33 U.S.C. § 13865(f) (defining “effluent

standard or limitation” to include NPDES permit and conditions

thereof), and 33 U.S.C. § 1862(6) (defining “sewage” as a

“pollutant” ). Accord, Doc #85 at 3-19.

In the Janiks’ case, the trial court erred by denying their Clean

Water Act claim, based on “‘standing,” as if only those asserting a

“river interest” injury can be a stakeholder.’ This misses the boat.

As to Clean Water Act citizen suit “standing,” please review the

arguments, authorities, and Rule 56 evidence chart provided in Plain-

tiffs’ Motion to Reconsider the Partial Summary Judgment of 10-14-

1997, With or Without ... Page Number Citations (filed 10-24-1997

as Doc #241),—esp. at its pages 2-3, and attached Exhibit A

(pages A-1 through A-13), Exhibit B (pages 42-53, — about Clean

Water Act “‘standing”’), Exhibit D (Miller Declaration, last 3 pages),

The Janiks’ suit is a modern-day equivalent of a “combined”

public-and-private nuisance claim.

The Janiks suffer special injuries directly related to one of the

twin concerns of the Clean Water Act and RCRA: “human

health” and ‘‘the environment’’). By missing this twofold key to

the “public nuisance” side of the Clean Water Act’s nature, the

trial court has ignored and negated literally centuries of Anglo-

American legal history. Historically (for 460+ years!), nuisance

claimant ‘‘stakeholder” status at common law has been recog-

nized as satisfied — since the reign of King Henry VIII — by the

public nuisance claimant’s proof of a “special” (personal-

ized) injury that is substantial and/or uniquely suffered, such that

a ‘‘stakeholder’— claimant’s injury credentials him to assert a

claim to ‘“‘abate’”’ (remedy) the incurred, ongoing, and/or immi-

nently threatened damages to the public’s rights. See Prosser,

Wade & Schwartz, Cases and Materials on Torts, 7th ed., “‘Nui-

sance,” at 855, citing as the seminal case, Y.B. 27 Hen. VIII,

Mich., pl. 10 (1536), and Prosser, supra, at 847-848, citing

McRae, “Development of Nuisance in the Early Common Law,”

1 U. Fla. L. Rev. 27 (1948), “and Keeton, ‘‘Trespass, Nuisance

and Strict Liability,” 59 Colum. L. Rev. 457 (1959), and Restate-

ment, 2nd Torts § 821C (‘“‘Public nuisance’’).

Because the ‘‘stakeholder’” must have a “special” injury from

the nuisance, it is not unusual for such a claimant to combine (or

to “unite’’) his “private nuisance” and ‘public nuisance” claims

into the same lawsuit. Prosser, Wade, & Schwartz, Torts (7th ed.,

1982), “Nuisance,” at 848. Texas case law accords with this

time-honored tradition. E.g., Ballenger v. Grand Saline, 276

S.W.2d 847 (Tex. Civ. App. — Waco 1955); Newton'v. Highland

Park, 282 S.W.2d 266 (Tex. App. — Dallas 1955, writ ref’d,

n.r.e.). In fact, the private claimant who can best assert a public

Exhibit E (Janik Declaration, pages 1-2), Exhibit G (Levine Declara-

tion, 3 pages), Exhibit M (McKasson Declaration, pages 1-3), Ex-

hibit Q (Rule 56 List, pages 1-3), — with Doc #85 at 3-19.

nuisance-like action is the private citizen who himself or herself

can simultaneously assert a private nuisance-like claim.

Since the Janiks have been Dallasites receiving City of Dallas

sewer service via Dallas Water Utilities fa stakeholder fact which

Mr. Janik’s Rule 56(e) declarations confirm] — at all times

during 1993 to date, — the Janiks are as much at risk of the city’s

unmitigated biohazardous risk-producing noncompliances, with

the city’s Clean Water Act/NPDES permit, as the Janiks were

when those city noncompliances caused their disastrous personal

injuries and personal property losses during 1993. If the Janiks

have no Clean Water Act § 1365 “standing” to complain — about

the city’s ongoing failure to prevent untreated sewage wastewater

overflows by fixing the defective sanitary sewer system, and about

the city’s ongoing failures to monitor and report their untreated

sewage overfiows, and about the city’s ongoing failure to mitigate

the harms causes by its ‘‘we’re-unaccountable-so-we-don’t-miti-

gate” practices, — then what Dallasites ever can?

How can the EPA adequately oversee Clean Water Act compli-

ance if the city can evade NPDES permit compliance duties by

non-reporting unlawful discharges, then assert state law ‘“‘immu-

nity” regarding citizen suits for permit violations?

1-C. The Fifth Circuit’s failure to use legislative history.

In effect, the Fifth Circuit’s “bright line rule” in Crown Central

is defeating the very intent of Congress, whose intent must be

judicially considered in Clean Water Act decisions. This is error.

Waste Action Project v. Dawn Mining Corp., 137 F.3d 1426,

1428-1429 (9th Cir. 1998), following Train v. Colorado PIRG,

426 U.S. 1, 9-11, 96 S.Ct. 1938, 1942-1943 (1976).

In fact, the Clean Water Act’s own language, as well as its

legislative history, indicate that Congress strove to protect both

“human health” and “the environment’, and that this was to

be accomplished in part by “public participation” in “enforce-

ment’. E.g., 38 U.S.C. §1251(e) (‘‘Public participation in ...

enforcement of any regulation, etc.: Public participation in ...

enforcement of any regulation, standard, effluent limitation,

plan, or program established by the [EPA] Administrator ...

under this chapter shall be provided for, encouraged, and

assisted by the [EPA] Administrator and the States ...” [em-

phasis added]); § 1811(g)(2)(C) (“A modification under this

subsection shall be granted only upon a showing ... [that] such

modification will not result in a discharge of pollutants ... which

may reasonably be anticipated to pose an unacceptable risk to

human health or the environment ...” [emphasis added]);

§ 1342(k) (‘‘National Pollutant Discharge” Elimination System”’

... “Compliance with permits: Compliance with a permit issued

pursuant to this section shall be deemed compliance, for purposes

of sections 1319 and 1365 ..., except any standard imposed under

section 1317 of this title for a toxic pollutant injurious to human

health . . .[ emphasis added] ); § 1365 (‘Citizen suits’’); etc. See,

accord, 1972 U.S. Code Cong. & Adm. News, p. 3668, re

Pub.L. 92-500, esp. 3750-3751, 3825. Cf also 1977 U.S. Code

Cong. & Adm. News, p. 4826, re 1977 Pub.L. 95-217; 1981

U.S. Code Cong. & Adm. News, p. 2629, re Pub.L. 97-117.

Thus, the end-result of the Fifth Circuit’s Crown Central

“bright line rule” is to improperly quash opportunities for private

attorneys general to have the greatest-possible access to federal

courts, for Clean Water Act-based health-related citizen suits:

The Supreme Court recognized in National Sea Clammers

that this [statutory] grant of standing reaches the outer

limits of Article II]. Jd. at 16, 101 S.Ct. 2615 (“‘It is clear

from the Senate Conference Report that this phrase was

intended by Congress to allow suits by all persons possessing

standing under this Court’s decision in Sierra Club v. Mor-

ton.”’) Thus, if a Clean Water Act plaintiff meets the consti-

tutional requirements for standing, then he ipso facto

satisfies the statutory threshold as well.

Quoting Gaston Copper Recycling, 204 F.3d at 155.

Accordingly, a citizen suit is proper if the plaintiff asserts

within his or her complaint a good faith claim for an “injury in

fact,” personal to that plaintiff, that “flows” from a defendant’s

violation of the Clean Water Act’s NPDES permit program.

Moreover, as citizen suit affiant Gail Lee’s example in Laidlaw

illustrates, 120 S.Ct. at 705, the Article III-qualifying injury

claimed by the citizen suit plaintiff need not be a “recreational” or

“aesthetic” interest in a “U.S. water,” it may be to a personal

property interest that is directly harmed by a U.S. water’s

behavior triggered by a Clean Water Act violation committed by

the defendant. See also, accord, Driscoll v. Adams, 181 F.3d

1285, 1291 (11th Cir. 1999) (landowner’s stormwater runoff

from construction site drained into stream that intermittently

flows as a tributary into Spiva Branch, a “navigable water,”

injuring economic interests of neighboring property owner), cit-

ing United States v. Eidson, 108 F.3d 1336, 1341-1342

(11th Cir. 1997) (drainage ditches and manmade canals can

qualify as “waters of the United States” for Clean Water Act

violation purposes, if they flow into a ‘‘navigable water’).

2. Notice Pleading, Rule 15(d), & R.C.R.A. Citizen Suits.

This Court should grant a reversal, to correct the Fifth Circuit’s

failure to reverse the district court’s factual detail requirements-

based dismissal of the Janiks’ alternative claim for a Resource

Conservation & Recovery Act (“RCRA”) citizen suit, — not-

withstanding this Court’s “notice pleading” doctrine settled in

Conley v. Gibsom, 355 U.S. 41, 47, 78 S.Ct. 99, 103 (1957), —

and notwithstanding a pending Rule 15(d) motion to more

definitely state the RCRA citizen suit’s critical facts (re disposed

chemicals defined by the E.P.A. in 40 CFR Pt. 122 as “hazardous

substances”; see Janik Appendix Part ‘‘C’’). In essence, the Fifth

Circuit affirmed a judgment on the pleadings, and thereby dis-

missed the alternative RCRA-based claim as if a RCRA-based

claim had not even been pled at all. However, the plaintiffs

provided adequate “notice pleading”’ of their alternative RCRA

citizen suit claim, — satisfying the “‘notice pleading’ doctrine of

Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103 (1957).

Accordingly, the Fifth Circuit’s affirmance below conflicts with

“settled”? U.S. Supreme Court precedent. (See Supreme Court

Rule 10(c), regarding conflicts by circuit courts of appeals with

federal law “‘settled” by this Court.)

Moreover, the Janiks offered to make a more definite statement

of their RCRA-based citizen suit claim via Rule 15(d), moving for

leave to file a Supplement to their amended complaint. The district

court below rejected this practical solution to the RCRA “‘notice

pleading” issue, in direct conflict with this Court’s holding in

Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230 (1962).

Furthermore, the Fifth Circuit’s affirmance of the trial court

below, on this Rule 15(d)-related issue, contradicts precedents in

other federal circuits. E.g., see Quarantino v. Tiffany & Co.,

71 F.3d 58, 65-66 (2nd Cir. 1995) (‘‘leave to file a supplemental

pleading should be freely permitted when the supplemental facts

connect it to the original pleading’’); LaSalvia v. United Dairy-

men, 804 F.2d 1113, 1119 (9th Cir. 1986), cert. denied, 482

U.S. 928, 107 S.Ct. 3212 (1987) (Rule 15 supplements to

pleadings should be freely permitted when supplemental facts

connect the supplemental pleading to the original pleading’s focal

fact allegations). Thus, the Fifth Circuit’s treatment of

Rule 15(d) in the Janik case clashes with Rule 15(d)’s treatment

by the Second and the Ninth Circuits. (See Supreme Court

Rule 10(a), regarding “conflicts” in the federal circuits. )

In effect, the Janiks’ Rule 15(d) motion would have been

granted in the Second Circuit and in the Ninth Circuit, and thus

the Janiks would have, there, been allowed a “‘day in court” to

prove up their alternative RCRA-based claim facts, e.g., the

RCRA-relevant facts provided in the Rule 56(e) declarations of

expert witnesses Brandon, McElyea, and Egbert). This is a

particularly clear-cut case of the defendant having no “unfair

prejudice” by the Rule 15(d) filing, because the plaintiffs’ critical

fact-pleading therein represented RCRA-relevant data that was

repeatedly and wrongfully withheld (i.e., not produced) by the

city during the discovery phase, as Doc #348 demonstrates. See,

accord, Patterson Farm, Inc. v. City of Britton, S.D., 22 F.

Supp.2d 1085, 1093 (D.S.D. 1998) (“However, because the City

has not provided plaintiff in this case with all of the relevant

records, the City’s motion for summary judgment cannot prevail.

Nor has the City offered sufficient evidence to refute the allegation

that it has violated its NPDES permits by failing to abide by

inspection and record keeping provisions ...’’).

2-A. Notice Pleading Requirements for R.C.R.A. Citizen Suit.

In more particularized summary, the first half of this second

federal question is whether the Third Amended Complaint satis-

fied federal “notice pleading’ standards for Resource Conserva-

tion & Recovery Act citizen suit relief available under 42 U.S.C.

§ 6972, — pursuant to the “notice pleading” doctrine of Conley v.

Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103 (1957):

The ... Federal Rules of Civil Procedure do not re-

quire a claimant to set out in detail the facts upon which

he bases his claims. To the contrary, all the Rules

require is ‘‘a short and plain statement of the claim” that

will give the defendant fair notice of what the plaintiff's

claim is and the grounds upon which it rests. The illustra-

tive forms appended to the Rules plainly demonstrate this.

Such simplified “‘notice pleading” is made possible by the

liberal opportunity for discovery and the other pretrial

proceedings established by the Rules to disclose more

precisely the basis of both claim and defense and to

define more narrowly the disputed facts and issues. ...

The Federal Rules reject the approach that pleading is a

game of skill in which one misstep by counsel may be decisive

to the outcome and [we] accept the principle that the

purpose of pleading is to facilitate a proper decision on the

merits.

Conley, 355 U.S. at 47-38, 78 S.Ct. at 103 (emphasis added).

The Janiks’ Third Amended Complaint [Doe #188, at

pp. 75-80] pled in the alternative for ‘other appropriate relief

available under 42 U.S.C. § 6972,” in conjunction with complaint

allegations suggesting that city discharges of untreated sewage

constituted RCRA violations (and thus did not qualify for

42 U.S.C. § 6903(27)’s exemption regarding treated domestic

sewage), being disposals of hazardous substances that posed

(and still pose) a substantial present or potential hazard to

human health or the environment when improperly managed

and/or improperly disposed of, due to the defective conditions of

the city’s sanitary sewer line’s pre-treatment conveyance piping.

Though the Janiks still allege (as per page 81 of Doc #188)

that this case is more of a Clean Water Act/nuisance case than a

“RCRA-rooted action per se’, the plaintiffs still reserve the right

(as suggested in ]/77b of said Doc #188’s page 81) to assert the

RCRA citizen as the leading federal claim 7? plaintiffs are disal-

lowed to sue under the Clean Water Act.

The 3rd Amended Complaint itself explicitly requested “‘appro-

priate relief, including but not limited to: ... appropriate relief

available via 42 U.S.C. § 6972” — which statutory section this

Court can judicially notice is RCRA’s citizen’s suit provision.

Moreover, the general ‘“‘pleading picture” described by the

Janiks’ pleadings qualifies the Janiks’ case within RCRA case law

standards regarding the RCRA citizen suit provision’s critical

terms: “‘imminent,”’-‘‘substantial,”’ and “‘endangerment”’. “Immi-

nent”, for RCRA citizen suit purposes, refers to the nature of the

threat, rather than identifying the expected time when of the

- threat’s emergency occurrence. Dague v. City of Burlington,

935 F.2d Cir. 1848, 1355-1856 (2d Cir. 1991). See Doe #318

at 11-18, esp. at 18; Doc #332 at 3 (5b, 16); Doe #331 at 3

(Y5b, 96). “Endangerment”, for RCRA citizen suit purposes,

means “‘a threatened or potential harm and does not require proof

of actual harm.” Quoting Dague, 935 F.2d at 1356. See

Doc #318 at 11-18, esp. at 18: Doc #332 at 3 ((5b, 96);

Doe #331 at 3 (95b, 96). As to “substantial” endangerment,

see Doc #318 at 11-14, 18. Plaintiffs’ Rule 15 motion was never

explicitly ruled on prior to the expiration of the trial court’s

jurisdiction over the City of Dallas side of this litigation. Accord-

ingly, this Court should rule that RCRA’s requirements for plead-

ing a citizen suit were satisfied by the Janiks’ “notice pleading” in

Doc #188, esp. at pages 75-82, 1 75-80). (Accord, see

Doc #318 at 11-18; Doc #140). The Janiks, as RCRA citizen

suit plaintiffs, should be granted their “day in court”.

2-B. Abuse in Rejecting Rule 15 Supplement to Complaint.

Even if plaintiffs were incorrect in their argument 2-A above,

plaintiffs should nevertheless be permitted to try their RCRA-

based claim as a citizen suit clarified by their attempted “more

definite statement” in their Supplement, pursuant to Rule 15(d).

In more particularized form, the second half of this second federal

question is whether a district court can refuse, without abusing its

Fed.R.Civ.P. Rule 15 discretion, to accept filing of a Rule 15

supplement to an amended complaint, in order to permit a

plaintiff's more definite statement regarding a RCRA citizen suit

pleading under 42 U.S.C. § 6972.

This result is especially proper in this case, since the Janiks’

submitted Rule 15 supplemental pleading described and summa-

rized E.P.A.-mandated monitoring data involving 21 disposed

chemicals (all 21 being defined by the E.P.A. in 40 CFR Pt. 122

as “hazardous substances’’), of direct relevance to the originally

pled complaint facts, and did so within a discovery-framed context

that clarified that there could be no Rule 15-related showing of

unfair prejudice to the defendant.

In this case, the reason for the plaintiffs’ delay in pleading the

names of the 21 “hazardous substances” (improperly ‘“‘disposed”

by the city) was that the city did not properly produce the

monitoring data in discovery, despite defendant’s knowledge that

the citizen suit focused on defendant’s discharges of pollutants

into a tributary network of a navigable river. See Doc #348.

As noted above, the Second Circuit utilized the Quarantino

ease to define a trial court’s Rule 15(d) discretion. In the

Quarantino case the plaintiff added a new claim for relief; in the

Janiks’ case, however, only a “‘more definite statement” of the

“alternative” RCRA citizen suit allegations was sought. (Com-

pare Doc #188, at complaint pages 75-82, with Doc #348, at

pages 1-16, plus its attached proposed “‘Supplement”’ at pages 1-

6.) Despite Quarantino being cited to the trial court (Doe #347,

page 4), it denied the Janiks’ Rule 15 motion by implication (in

Doc #352) and by a later ruling (Doc #360) that issued after

appeal was noticed (Doe #358). Accordingly, the Fifth Circuit’s

affirmance below represents a “split” in the circuit courts of

appeals regarding a trial court’s discretion to accept or reject the

filing of a Rule 15 supplement.

Accordingly, denial of the Janiks’ Rule 15(d) motion — which

attempted to add hazardous substance disposal allegations not

know earlier due to improper discovery obstruction by the city —

was an abuse of discretion that prejudicially rewarded the city’s

improper discovery tactics. See, accord, Patterson Farm, Inc. v.

City of Britton, S.D., 22 F.Supp.2d 1085, 1093 (D.S.D. 1998).

3. Rule 56(e) Requirements for Nonmovants.

This Court should grant a reversal of the Fifth Circuit’s

affirmance below, to correct the ruling that a nonmovant’s

Rule 56(e) evidence, including expert and fact witness declara-

tions, may be deemed “undesignated” (and thus be ignored

without meaningful Rule 56 evaluation) by a district court, when

the nonmovant’s Rule 56(e) initial objection omitted pagination

cites to such Rule 56(e) declarations, — notwithstanding this

Court’s substance-over-form norm settled in Celoter Corp. v.

Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553 (1986). A

reversal of such a ruling is especially appropriate in this case,

since the nonmovants immediately “cured” the supposed problem

by promptly filing a nonmovant’s motion for reconsideration that

provided pagination-cites and proof indexing.

In more particularized form, this third federal question is

whether a district court may repeatedly decline to meaningfully

evaluate the provable merits of a nonmovant’s Rule 56(e) evi-

dence, — notwithstanding this Court’s substance-over-form norm

within Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct.

2548, 2553 (1986),— by deeming nonmovant’s Rule 56(e)

evidence as ‘“‘undesignated” because nonmovant’s first Rule 56

response did not expressly cross-reference Rule 56(e) declara-

tions’ page numbers, despite the Rule 56(e) record being

promptly “‘cured”’ 9 days later.

Specifically, the 10-15-1997-entered interlocutory ruling that

faulted the Janiks for having ‘“undesignated” evidence

[Doc #238] was later vacated as of 4-16-1998 [Doc #342],

followed by a similar interlocutory ruling that continued to sug-

gest that the Janiks’ Rule 56(e) evidence was still “undesig-

nated,” although is was no longer (as of 10-24-1997, when

Doc #241 cured and/or mooted any possible “undesignated”

Rule 56(e) evidence problem). This usage of a interlocutory

partial summary judgment, post-vacatur, so that a substitute

ruling later recited an “undesignated” record, when no such

“undesignated”’ record then existed, was a reversible error that

was later incorporated by reference into the final judgment

[Doe #352].

The trial court’s rejection of the Janiks’ Rule 56( e) proof,

including the expert witness and fact witness declarations, was a

punitive sanction that exceeded Due Process boundaries. Because

the trial court’s deemed “undesignated”’ sanction is not authorized

by the text of Fed.R.Civ.P. Rule 56(e), and because it conflicts

with the substance-over-form doctrine of Celotex, the Fifth Cir-

cuit’s affirmance below represents a conflict with this Court’s

“settled” precedent regarding Rule 56(e). (See Supreme Court

Rule 10(c), regarding conflicts by circuit courts of appeals with

federal law “settled” by this Court.) See also, accord, Brunet,

“Summary Judgment Materials,” 147 F.R.D. 647, 656-657

(1993).

4. Governmental Immunity Versus Federal Preemption.

| This Court should grant a reversal, to correct the Fifth Circuit’s

approval of Rule 56 rulings, in a Clean Water Act/R.C.R.A.

citizen suit context, that deny the application of Article VI's

Supremacy Clause to preémptively limit state sovereignty and

state statute-grounded “governmental immunity” claimed by a

city, as a defense to that city’s accountability for its acts or

omissions that violate federal environmental statutes. Otherwise,

this Court’s federalism doctrine and preémption ruling settled in

Sanitary District of Chicago v. U.S., 266 U.S. 405, 425-426, 45

S.Ct. 176, 178 (1924), will go ignored and unenforced.

In more particularized form, this fourth federal question is

whether a district court’s Rule 56 rulings in a Clean Water Act

citizen suit may avoid recognizing that Article VI’s Supremacy

Clause preémpts a state “governmental immunity” defense as to

any municipality’s acts or omissions that violate its NPDES

permit, — when doing so disarms the force of this Court’s holding

in Sanitary District of Chicago v. U.S., 266 U.S. 405, 425-426,

45 S.Ct. 176, 178 (1924).

By not reaching (much less discussing) the issue of federal

preemption (regarding polluter permit duties), the Fifth Circuit

negated the NPDES-rooted strict liability bases for the Janiks’

claims under both Texas state statutory law (esp. the “TTCA”)

and Texas state Constitution (Texas’ non-negligent “nui-

sance”/“damaging” remedy), so this Court should correct its

ruling to accord with federal preémption law.

Thus, at the trial court level, the district court avoided the

implications of both Clean Water Act and RCRA preémption of

state immunity laws to the extent that they involve pollutant

“discharge” regulations affecting “navigable water’ pollution as

well as the “disposal” of “hazardous wastes.” This side-stepping

of federal environmental regulatory schemes effectively ignored

and deviated from Sanitary District of Chicago v. U.S., 266

U.S. 405, 45 S.Ct. 176, 178-179 (1924), a “settled” preémption

precedent regarding navigable waters-related sewage regulation.

(See Supreme Court Rule 10(c), regarding conflicts by circuit

courts of appeals with federal law “settled” by this Court.)

The city’s plea of unaccountability, as to its duty to comply with

its NPDES permit, is directly contradicted by the city’s own

sewage treatment plant operational records, which include the

following entry that admits a permit violation:

10/31/93 Sunday D shift

... Surge basin pumps failed, not tripped, causing run-

off overload into stormwater system — violation of permit

(bypass). Sandy hurt hand/wrist on bypass valve at sludge

transfer pumps, but did not want to fill out an accident

report. ... PP system still not feeding out well.

Quoting Doc #316 at 8(emphases added).

In any event, the city cannot legally assert “discretionary

powers” to evade the very specific standards, terms, and condi-

tions of its EPA-issued NPDES polluter’s permit, such as the

specific affirmative and prohibitive standards noted (and quoted)

within Doe #188, e.9., at page 27’s ]20d(a) (quoting NPDES

permit @ page 17 of Part II, § E:

... overflows from any part of the publicly owned treat-

ment works collection system are not authorized by

this permit. Any such overflow not specifically authorized

in an NPDES permit would constitute an unpermitted dis-

charge. ...

and further noting, at page 27’s ]20d(b), that the City of Dallas’

NPDES permit @ Part III, § B, 92, indicated the city’s duty:

... [to] take all reasonable steps to minimize or pre-

vent any discharge in violation of this permit which has

a reasonable likelihood of adversely affecting human

health or the environment”). ... [emphasis added ]

The trial court turned federalism on its head by allowing the

City to escape federal accountability from a federally preemptive

regulatory scheme (and its mandated strict liability standards),

by the city’s assertion of a hierarchically inferior state-law

affirmative defense called ‘discretionary powers’ (TTCA,

§101.506). For a state law to be permitted to violate a federal

law, Congress must manifest “unambiguous intent” to excuse

such violations, Wyoming v. Oklahoma, 502 U.S. 437, 112 S.Ct.

789 (1992). No such Congressional intent exists in this case.

Does the City of Dallas regard itself as above federal

law? — as above NPDES permit accountability? Yes, they have

even said so:

... the Clean Water Act is not applicable or relevant to this

case. Defendant [City of Dallas] admit[s] that Plaintiffs

have filed this action to seek injunctive relief against the City

of Dallas, as stated in ... Plaintiffs’ Third Amended Com-

plaint, but Defendant [City of Dallas] denies Plaintiffs

are entitled to such relief, and further denies it is

required to report any discharges of untreated sewage

onto Plaintiffs’ premises pursuant to its NPDES permit.

Defendant [City of Dallas] admits that it did not report

any alleged discharge of sewage into the sanitary storm

sewer [sic] near Plaintiffs’ premises.

Quoting City of Dallas’ First Amended Original Answer

[Doce #190], page 15 (emphasis added).

Yet, under Supremacy law, the city may not constitutionally

justify its claim that its nuisance law-based immunity and state

statute-defined “discretion” escapes federal NPDES permit viola-

tion consequences. Accord, U.S. v. Gulf Park Water Co., Inc.,

972 F. Supp. 1056, 1059 (S.D. Miss. 1997) (discharge from

sewage treatment plant was “pollutant”; compliance with Clean

Water Act is strict liability matter); Ward v. Coleman, 423 F.

Supp. 1352, 1357 (D.C. Okla. 1976) (federally mandated “per-

formance rather than excuses” is what the Clean Water Act

imposes on polluters); U.S. v. Allegheny Metal Finishing Co.,

696 F. Supp. 275, 281, 283, 285-286 (W.D. Mich. 1988)

(NPDES permit-holder held strictly liable for violating ‘“technol-

ogy-forcing” RCRA standards, due to the permit-holder’s unap-

proved waste storage/disposals). The very least that the city

should have done, due to its NPDES duty to “mitigate” adverse

health impacts, would be to have promptly warned the Janiks

about the biohazardous situation, especially as to contaminating,

airborne colony-forming bio-aerosols and sewage-borne toxin-

containing hazardous wastes:

The City of Dallas man did not offer to help clean nor did

he give us any warnings as to the seriousness of such raw

sewage exposure. He did not warn us that breathing the air

above such an overflow was very dangerous to our health.

Quoting Doc #122 at 3, 912 (Mrs. Janik’s declaration; emphasis

in original). A failure to warn in such a situation, as a matter of

law, must be a violation of the NPDES permit “‘duty to mitigate”.

CONCLUSION

The City of Dallas is a city government that: (1) had and has

a duty to obey federal pollution laws and standards;

(2) breached many of those duties, and yet continues to do so;

(3) thereby caused illnesses and property losses to four Dallas

residents, who are now serviced by Dallas Water Utilities and

are (as others) still at risk. Also, Texas state nuisance law must

be interpreted in a manner that does not thwart federal preémp-

tion law (which imposes NPDES and RCRA duties on the City

of Dallas, with its strict liability violation accountabilities),

despite City claims of ‘‘discretion’”’ immunity.

The Janiks are a family who have resided in and who continue

to reside in the City of Dallas, and their sanitary sewer utilities

are supplied by and serviced by the City of Dallas.

To the extent that the City of Dallas continues to violate its

EPA-issued NPDES permit’s terms and conditions:

(a) such as the mandatory obligation of the city to take

actions to prevent the unpermitted discharges of un-

treated sewage from the city’s sanitary sewer system,

(b) such as the city’s mandatory obligation to properly moni-

tor and to report to the EPA its sanitary sewer system’s

discharges, and

to human health and the environment caused by unper-

mitted discharges. from the city’s sanitary sewer sys-

tem, —

the Janiks (like other Dallasites serviced by Dallas Water Utili-

ties) stand at risk of a re-run of their untreated sewage-dis-

charge-caused physicai health injuries and perscnal property

losses. The Janiks, as much or more than any other family of

Dallas residents, are proper “citizen suit’ plaintiffs who have

suffered injury from NPDES violations, and who continue to be

threatened with imminent re-injury from similar non-mitigation

episodes caused by the continuing non-compliance of and institu-

tionalized policy of unaccountability of the City of Dallas, with

respect to its NPDES permit. The institutionalized policy and

practice of the city is such that the cause of the city’s NPDES

permit non-compliance problem is still “unfixed”. The City of

Dallas’ defective sanitary sewer system is one of the oldest and

largest in the nation — it is an inadequately managed time-bomb

waiting to explode with harms again, to revisit someone with the

Janiks’ nightmare, or with the Shades’ nightmare,” despite the

fact that accountability respecting and compliance with the city’s

NPDES permit would provide preventive protection against this

continuing non-compliance and imminent threat of harm to

human health and/or to the environment, including but not

limited to imminent harm to the artificial tributary network of the

natural tributary basin of the Trinity River, which is a navigable

river of the United States, preémptively regulated by the Clean

Water Act. rf

Moreover (or alternatively), the Janiks have standing to seek

and have properly pled for citizen suit remedies under RCRA, due

to the city’s unauthorized disposal of EPA-defined hazardous

substances on or about October 31, 1993(Doe #318, pp. 13-18

cross-referenced to 40 CFR Pt. 122, App.D, Table V), — despite

non-production of the city’s monitoring reports regarding such

hazardous substances, which discovery non-compliance delayed

the Janiks’ ability to amend their pleadings with a more definite

statement of their RCRA claim. Under Article III as it is inter-

preted in Laidlaw, and as it is interpreted outside of the Fifth

Circuit, the Janiks are “stakeholders” with constitutional “stand-

ing” to sue as citizen suit plaintiffs under the Clean Water Act

who assert their own injuries caused by the city’s NPDES permit

violations. Also (or alternatively), the Janiks seek RCRA-based

citizen suit remedies. In particular, the Janiks seek proper civil

penalties, injunctive relief, remedial appointment of a master

(if necessary), declaratory relief, costs and attorneys fees,

and other proper relief from the challenged rulings below, —

> See Shade v. City of Dallas, 819 S.W.2d 578 (Tex. App. — Dallas

1991, no writ) (untreated sewage wastewater case).

pursuant to this honorable Court’s granting of a Writ of

Certiorari to the Fifth Circuit Court of Appeals, followed by a

reversal of the rulings below (that relate to the City of

Dallas), and otherwise providing proper relief for

petitioners.

Respectfully submitted,

James J. S. Johnson, Esq.

P.O. Box 2952, Dallas, Texas 75221

817-430-9305 phone; 817-430-9306 FAX

Attorney for Petitioners (Plaintiffs)

Date: Oct. 26, A.D. 2000

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.