# Appendix — Janik ex rel. Janik v. City of Dallas > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1249%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2001 - **Citation:** 531 U.S. 1075 ## Text Supreme Court, U.S (2) FILED 20 68 4 OCT 2 7 200 OFFICE OF THe Uienn 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, v. 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 APPENDIX TO THE 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 i TABLE OF CONTENTS FOR APPENDIX (separate volume, supporting Petition for Writ of Certiorari) APPENDIX’S PART “A”: JUDGMENT AND DECISIONS BELOW (in reverse chronological order) Order of 8-3-2000 denying panel rehearing ......... Untitled order of 7-6-2000 denying appeal ......... Order-entered 6-30-1998 [Doc #260] ............. JUDGMENT entered 5-28-1998 [Doc #352] ....... Order entered 5-26-1998 [Doc #350] ............. Memorandum Opinion & Order entered 5-13-1998 DOS ee oe er ak Memorandum Opinion & Order entered B-LGFDO-T908 TIC WIGS)... ok ecw cee kc Order of 11-20-1997 [Doc #301] entered.......... Memorandum Opinion & Order entered 10-15-1997 SEE ge cn on eras ee ek APPENDIX’S PART “B”: STATUTES, RULES, & OTHER LAWS INVOLVED U.S. Constttn., Article III, Section 2 ............... U.S. Constttn., Article VI, Supremacy Clause........ I i 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) .... ii Texas Tort Claims Act statutes ..........ccccccess 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 Dee @148) « caccusazaas tte as eo Brandon (M.D.) Declaration filed 1-5-1998 [from Doe @818) ook. ccexcuse ei a eh hi ak we McElyea (P.E.) Declaration filed 1-7-1998 [from Dee O8894 oo igh See ees aos Plaintiffs’ Motion for Leave to Supplement filed 5-22- 1906 [from Sive MH iis Litawnvaken oneness Plaintiffs’ Exhibit “‘Supplement” to Plaintiffs’ Motion for Leave to Supplement filed 5-22-1998 [from Doe 0348). cscandci dane is ta a 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] ............0.0.5. City First Amended Original Answer filed 4-25-1997 [from Dec OIGGT oi << <6 Paget babe ei thease canss Brief of Appellee City Dated 12-9-1998............. APPENDIX PART A A-1 U.S. Court of Appeals Filed | August 3, 2000 In the United States Court of Appeals for the Fifth Circuit No. 98-10781 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, Plaintiffs-Appellants, v. CITY OF DALLAS TEXAS, Etc, et al, Defendants, CITY OF DALLAS TEXAS, an incorporated municipality, Defen- dant-Appellee. No. 98-11369 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, Plaintiffs-Appellants, v. CITY OF DALLAS TEXAS, Etc; et al, Defendants AMICA MUTUAL INSURANCE CO, A Rhode Island Company; INSURANCE ADJUSTMENT SERVICES OF TEXAS INC, A Texas Corporation, Also known as Insurance Adjustment Services, Also known as Insurance Adjustment Services Inc; NOBEL SERVICE CORPORATION, A Delaware Corporation, Doing business as In- surance Adjustment Services Inc, Defendants-Appellees. Appeals from the United States District Court for the Northern District of Texas, Dallas A-2 ON PETITION FOR REHEARING Before GARWOOD, WIENER and DENNIS, Circuit Judges. PER CURIAM: IT IS ORDERED that the petition for rehearing is DENIED. Entered for the Court: /s/_ WILL GARWOOD United States Circuit Judge REHG-2 CLERK’S NOTE: See FRAP and Local Rules 41 for stay of the mandate. A-3 U.S. Court of Appeals Filed July 6, 2000 In the United States Court of Appeals for the Fifth Circuit No. 98-10781 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, Plaintiffs-Appellants, v. CITY OF DALLAS, TEXAS, Etc., et al, Defendants, CITY OF DALLAS, TEXAS, an Incorporated Municipality, Defendant-Appellee. No. 98-11369 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, Plaintiffs-Appellants, v. CITY OF DALLAS, TEXAS, Etc., et al, Defendants, AMICA MUTUAL INSURANCE CO., a Rhode Island Com- pany; Insurance Adjustment Services of Texas Inc., a Texas Corporation, Also Known as Insurance Adjustment Services, Also Known as Insurance Adjustment Services Inc; Nobel Service Corporation, a Delaware Corporation, Doing Business As Insurance Adjustment Services Inc., Defendants- Appellees. A-4 Appeals from the United States District Court for the Northern District of Texas 3:95-CV-2594-D Before GARWOOD, WIENER and DENNIS, Circuit Judges.’ GARWOOD, Circuit Judge: Plaintiffs-appellants Ernest A. Janik, Jr., and Leah Eileen Janik, individually, and as next friends of their minor children, (collectively, the Janiks) filed suit against defendants-appellees the City of Dallas (the City), AMICA Mutual Insurance Co. (AMICA), IAS Claim Services, Inc., (IAS), and Nobel Service Corp. (Nobel)*, seeking recovery for personal and property dam- age resulting from a sewage leak in the basement of a home they were leasing and from the handling of their insurance claims for losses caused by the sewage leak. The Janiks brought numerous claims against the City, against AMICA (the Janiks’ insurer), and against IAS and Nobel (their insurance adjustors ). In a series of orders, the district court granted the City summary judgment on all claims against it. With regard to AMICA, IAS, and Nobel, the district court granted summary judgment in their favor on several, but not all, of the Janiks’ causes of action. The Janiks’ remaining claims against AMICA, IAS, and Nobel proceeded to trial, and the jury returned one liability question favorable to the Janiks against AMICA and IAS. The district court, however, entered judgment in favor of AMICA and IAS on this jury finding, on the basis that there was no causal link between the sole ‘Pursuant to 5th Cir. R. 47.5 the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. *The Janiks also named Floyd E. Meyers, Noble Holdings, Inc., and Insurance Adjustment Services of Texas, Inc., as defendants to this action. These defendants, however, were later dismissed from the case and are not parties to this appeal. A-5 liability finding and the damages finding. The Janiks appeal on numerous points. We affirm. FACTUAL AND PROCEDURAL HISTORY In 1993, the Janiks lived in a home they were renting at 5509 Melshire Boulevard in Dallas, Texas. On Sunday, Octo- ber 31, 1993, the Janiks returned home from church to discover a liquid seeping into their home. The Janiks attempted to clean their home and furnishings until discovering that the water was in fact untreated sewage water. The Janiks then stayed with a neighbor for several days and soon moved to a different residence. Seeking recovery for the property damage they suffered, the Janiks filed a claim under their renter’s insurance policy with AMICA. The day after discovering the sewage in their leased home, the Janiks orally notified AMICA of their claim. AMICA then referred the claim to IAS, an independent claims adjuster, which opened a file on the Janiks’ insurance claims on Novem- ber 2, 1993. Blackmon Mooring Steamatic (Blackmon Mooring ) was retained to assist in the cleaning and moving of the Janiks’ personal property. Problems, unfortunately, soon arose. The Janiks considered AMICA and the claims adjustors to be engaging in deliberate delay and misrepresentation in processing the Janiks’ claims. After several attempts by Blackmon Mooring to clean the personal property to the Janiks’ satisfaction, AMICA decided to treat the Janiks’ claim as a constructive total loss. IAS recommended that the Janiks receive $60,000 — their policy limit. However, Black- mon Mooring was owed $15,900 for its cleaning and moving services, and a dispute arose over whether AMICA would pay the © full $60,000 directly to the Janiks who would then pay Blackmon Mooring or issue two checks, one to the Janiks and the other to Blackmon Mooring. Eventually, the Janiks paid Blackmon Moor-_ ing themselves, and AMICA then released the entire $60,000 to A-6 the Janiks. In addition to the $60,000 payment for unscheduled personal property, AMICA also provided the Janiks $4,425 in coverage for additional living expenses. Although the Janiks do not contend that they received less coverage than they were entitled to under the policy, they do assert extra-contractual damages on various theories for alleged problems in the handling of their claim. The Janiks maintain that AMICA improperly delayed payment and improperly demanded proof of loss for payment, when the requirement for such proof was waived by AMICA. On October 30, 1995, the Janiks filed suit against the City, alleging that the City was responsible for the sewerage leak and — the resulting personal and property damages they suffered. The Janiks sought recovery under various theories, including trespass, conversion, nuisance, the Texas Constitution, the Federal Clean Water Act, 33 U.S.C. §§ 1251-1887 (CWA), the Texas Tort Claims Act, Tex. Crv. Prac. & REM. CopDE ANN. §§ 101.001- 101.109 (TTCA), the Texas Water Code, the Texas Solid Dispo- sal Act, the Federal Declaratory Judgment Act, the Texas Declar- atory Judgment Act, and violations of the Fourteenth Amendment of the United States Constitution. In their third amended com- plaint, the Janiks referenced the Resource Conservation and Recovery Act, 42 U.S.C. § 6972 (RCRA), as an alternative standard to support their claims under the CWA and state nuisance law. In a series of orders, the distriet court granted — summary judgment in favor of the City on each claim asserted by the Janiks. In the same complaint, the Janiks also named AMICA, IAS, and Nobel as defendants. The Janiks alleged inter alia that AMICA, IAS, and Nobel were liable for negligence, gross negligence, civil conspiracy, breach of fiduciary duty, breach of contract, quasi- contract, economic coercion and undue influence, violations of the Texas Deceptive Trade Practices Act (DTPA), violations of the Texas Uniform Fraudulent Transfer Act (TUFTA), and Texas A-7 Insurance Code violations, all in connection with their conduct and | representations while adjusting the Janiks’ insurance claims.° In a series of orders, the district court granted summary judgment in favor of AMICA on the following causes of action asserted by the Janiks: breach of fiduciary duty, quasi-contract, economic coercion and undue influence, and DTPA violations. The district court also granted IAS summary judgment on the Janiks’ claims against it for civil conspiracy and economic coercion. The remaining claims were tried before a jury. In August 1998, The Janiks remaining claims against AMICA, IAS, and Nobel proceeded to trial. At the close of the Janiks’ case, the district court granted the defendants judgment on the Janiks’ TUFTA claim. The district court then submitted the charge to the jury. The charge included the following liability issaes: breach of contract, breach of the duty of good faith and fair dealing, negligence, gross negligence, negligent misrepresentation, civil conspiracy (as to AMICA), and nineteen insurance code viola- tions. The jury answered “yes” to only one liability question, finding that AMICA and IAS violated the Texas Insurance Code by “[f]ailing to acknowledge with reasonable promptness perti- nent communications with respect to claims arising under the policy.” The jury made a damages finding of $2,815.7u, repre- senting the “out of pocket costs to plaintiffs to clean plaintiffs’ consumer goods, other than those requiring special remediation efforts, as to those items that can be cleaned at a cost less than “Against AMICA, the Janiks sought recovery for breach of contract, quasi-contract, DTPA violations, bad faith, negligence, gross negli- gence, economic coercion and undue influence, breach of fiduciary duty, the Texas Declaratory Judgment Act, the Federal Declaratory- Judg- ment Act, civil conspiracy, unconscionability, and Texas Insurance Code violations. The claims against IAS were based upon negligence, gross negligence, economic coercion and undue influence, civil conspiracy, Texas Insurance Code violations, DTPA violations, and TUFTA viola- tions. The Janiks sought recovery from Nobel for alleged TUFTA violations. A-8 the cost of replacement.” The jury apportioned responsibility for the loss at twenty-five percent to AMICA and seventy-five percent to IAS. The district court, however, ruled that the jury’s liability finding bore no relationship to the damages finding, specifically determin- ing that there was no evidence of any out-of-pocket expenses incurred by the Janiks as a result of any delayed or inadequate communication by IAS and AMICA. Therefore, the district court entered judgment in favor of AMICA and IAS. The Janiks filed motions for reconsideration, new trial, and judgment as a matter of law. The district court denied relief on these motions. The Janiks then timely appealed. DISCUSSION On appeal, the Janiks assert that the district court erred in its disposition of their claims against the City, AMICA, IAS, and Noble. We affirm. I. The City The district court granted the City’s motions for summary judgment on all of the Janiks’ claims. On appeal, the Janiks contend that the district court committed error in four respects: (1) the district court’s finding that the Janiks lacked Article III standing to assert a CWA claim; (2) the district court’s decision that the Janiks had not stated a cause of action under the RCRA‘; ‘On appeal, the Janiks contend that even if the district court correctly determined that they had failed to state a claim under the RCRA, the district court erred in refusing their motion to amend their pleadings pursuant to Rule 15 of the Federal Rules of Civil Procedure. Whether a party should be allowed to amend his pleadings is a decision left to the sound discretion of the district court. See Moody v. FMC Corp., 995 F.2d 63, 65 (5th Cir. 1993). The Janiks filed their Rule 15 motion to amend their pleadings to include an RCRA claim on May 22, 1998, more than two and one-half years after filing this action and after three A-9 (3) the district court’s conclusion that the City was not liable under the TTCA; and (4) the district court’s determination that the City’s actions did not constitute a nuisance and, therefore, did not result in an unconstitutional takings. With regard to the first two issues, we agree with the district court for the reasons stated in its orders, but write further to address the last two points raised by the Janiks. We review a grant of summary judgment applying the same standard as the court below was required to apply. See King v. Chide, 974 F.2d 653, 655 (5th Cir. 1992). Summary judgment is proper when no issue of material fact exists and the moving party is entitled to judgment as a matter of law. See id. at 656. Summary judgment evidence is viewed in the light most favorable to the nonmovant, in this case, the Janiks, and questions of law are reviewed de novo. See id. We may affirm a judgment on any basis raised below and supported by the record. See Davis v. Scott, 157 F.3d 1008, 1005 (5th Cir. 1998); Davis v. Liberty Mut. Ins. Co., 525 F.2d 1204, 1207 (5th Cir. 1976); see also 10A CHARLES ALAN WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE § 2716, at 290 (3d ed. 1998). The Janik’s claims under nuisance and the TTCA are governed by Texas law. When adjudicating claims for which state law provides the rules of decision, we are bound to apply the law as interpreted by the state’s highest court. See Transcontinental Gas v. Transportation Ins. Co., 953 F.2d 985, 988 (5th Cir. 1992). If the state’s highest court has not spoken on a particular issue, “it is the duty of the federal court to determine as best it can, what the highest court of the state would decide.” Jd. When making such a determination, we are bound by an intermediate state appellate court decision unless ‘convinced by other persua- sive data that the highest court of the state would decide other- previous amendments to their pleadings. We cannot conclude that the district court abused its discretion in refusing the Janiks’ request for a fourth amendment. A-10 wise.” First Nat’l Bank of Durant v. Trans Terr Corp., 142 F.3d 802, 809 (5th Cir. 1998) (internal quotations and footnote omitted). We, however, ‘“‘will not expand state law beyond its presently existing boundaries.” Rubinstein v. Collins, 20 F.3d 160, 172 (5th Cir. 1994) (footnote omitted). We will first consider the Janiks’ claim under the TTCA. Before the Texas legislature enacted the TTCA, liability against a munic- ipality for the negligence of its representatives depended upon the classification of the activity at issue as either a governmental function or a proprietary function. See Dilley v. City of Houston, 222 S.W.2d 992, 993 (Tex. 1949). The former was shielded by sovereign immunity, while the latter was not. Under this scheme, if a municipality decided to provide sewer services, such services were classified as a proprietary function and, therefore, not afforded immunity. See City of Tyler v. Likes, 962 S.W.2d 489, 502 (Tex. 1997) (“Common law classified operation and mainte- nance of storm sewers as proprietary functions for which a municipality could be sued.’’). The TTCA, however, has largely done away with this classification system. Under the TTCA, sovereign immunity applies to negligence claims arising from a municipality’s construction, operation, and maintenance of its sewer systems, except to the extent such immunity is waived by the TTCA. See Tex. Civ. Prac. & Rem. Cope ANN. § 101.021 A-11 (1997)° id. § 101.0215.° Accordingly, the TTCA narrowed mu- nicipal liability for damages caused by sewer systems. City of Tyler, 962 S.W. 2d at 504. The Janiks alleged below, and reiterate on appeal, that the City’s employees utilized motor-driven equipment when repairing a sewer line in their neighborhood. The Janiks contend that this equipment caused the sewage to seep into their home, thereby falling within the purview of section 101.021 of the TTCA (see note 5, supra). Under the TTCA, the City is immune from liability for the intentional torts of trespass and conversion asserted by the *Section 101.021 of the Texas Civil Practice and Remedies Code states as follows: “A governmental unit in the state is liable for: (1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if: (A) the property damage, personal injury, or death arises - from the operation or use of a motor-driven vehicle or motor- driven equipment; and (B) the employee would be personally liable to the claimant according to Texas law; and (2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it @ private person, be liable to the claimant according to Texas law.” *Section 101.0215 reads in pertinent part: Z “(a) A municipality is liable under this chapter for damages arising from its governmental functions, which are those functions that are enjoined on a municipality by law and are given it by the state as part of the state’s sovereignty, to be exercised by the municipality in the interest of the general public, including but not limited to: (9) sanitary and storm sewers; (32) water and sewer service; and A-12 Janiks. See Tex. Civ. Prac. & Rem. Cope ANN. § 101.057." In response to an interrogatory, the Janiks stated that they “have not asserted any ‘negligence’ cause of action (or ‘count’) against the City of Dallas.” As the City is immune for any intentional tort alleged against it and the Janiks have not sought recovery under a negligence theory, there is no remaining basis for liability under the TTCA. Therefore, the district court’s grant of summary judgment in favor of the City on the Janiks’ claim under the TTCA is affirmed. The Janiks also sought recovery under a state-law takings claim, which they based on the doctrine of nuisance. Texas courts have split actionable nuisance into three categories: (1) the negligent invasion of another’s interest; (2) the intentional inva- sion of another’s interest; and (3) other conduct, culpable because it is abnormal and out of place in its surroundings, that invades another’s interests. See City of Tyler, 962 S.W.2d at 503. As noted previously, the Janiks do not allege that the City acted negligently; therefore, the first category of nuisance is inapplica- ble. Although several pre-City of Tyler Texas courts of appeals’ decisions suggest that the Janiks may recover under the abnormal and unusual condition branch of nuisance, see Bible Baptist Church v. City of Cleburne, 848 S.W.2d 826 (Tex. App.-Waco 1993, writ denied); Shade v. City of Dallas, 818 S.W.2d 578 (Tex. App.-Dallas 1991, no writ)*, the Janiks’ pleadings do not "Section 101.057 provides as follows: “This chapter does not apply to a claim: (1) based on an injury or death connected with any act or omission arising out of civil disobedience, riot, insurrection, or rebellion; or (2) arising out of assault, battery, false imprisonment, or any other intentional tort, including a tort involving disciplinary action by school authorities.” “However, when considering a nuisance claim from excessive flooding caused by culverts and a drainage channel, the Texas Supreme Court focused on whether the culvert system was abnormal and out of place in A-13 contain an allegation that any conduct by the City was “abnormal and out of place in its surroundings.” Therefore, the Janiks are reiegated to the second type of nuisance-intentiona! nuisance. We again look to the Texas Supreme Court’s decision in City of Tyler for guidance. Likes’s home was damaged after a drainage channel and culverts owned by the City of Tyler flooded from heavy rains in the area, and Likes sought recovery from the City of Tyler under a nuisance theory. See City of Tyler, 962 S.W.2é at 503. The Texas Supreme Court held, as a matter of law, thatthe City of Tyler “did not intentionally do anything to increase «the amount of water in the watershed in which Likes’s home was located.” Id. at 504. The court based this conclusion on the City of Tyler’s having completed the culvert system before the Likes’s home was built and not having made any improvements since then to increase the amount of water in the watershed where Likes’s home was located. See id. It is undisputed that the City of Tyler intentionally constructed the culvert system and, therefore, the court’s attention must have been focused on the intent to cause the flooding in the vicinity of Likes’s home. In the present case, there is no allegation, nor any evidence, that the City intended to cause the sewage flooding in the vicinity of the Janiks’ home. Accordingly, the Janiks’ takings claim premised on nuisance fails. In conclusion, the district court did not err in granting summary judgment in favor of the City. Il. Insurance Defendants The Janiks raise several claims of error in the district court’s disposition of their claims against AMICA, IAS, and Nobel. First, its surroundings, not whether the resulting flood waters were. See City of Tyler, 962 S.W.2d at 504. Similarly, were we to reach the issue in the present case, we would need to address whether the sewer system itself, not the sewage that escaped from that system, was sufficiently abnor- mal and out of place in its surroundings. There does not appear adequate evidence that it was. A-14 the Janiks appeal the district court’s grant of partial summary judgment in favor of AMICA, IAS, and Nobel on the following causes of action: economic coercion and undue influence, civil conspiracy, DTPA violations, breach of fiduciary duty, quasi- contract, and unconscionability. Second, the Janiks contend that the district court erred in declining to find manifest error in the ~ jury’s verdict, specifically, that the Janiks had not established their claims for\ breach of contract and violations of the Texas Insurance Code and greater damages than those awarded by the jury. Third, the Janiks assert that the district court erred granting judgment for IAS and AMICA on the jury’s one liability finding in the Janiks’ favor.’ We hold that the district court did not err in any respect and rely on its reasoning in all matters save one. We briefly address the Janiks’ contention that AMICA breached the policy by delaying payment of their claims until March 23, 1994, when the Janiks and AMICA had agreed on or around Febru- ary 15, 1994 that AMICA would pay the Janiks $60,000 under the policy. The Janiks alleged that AMICA breached the policy by failing to pay the Janiks’ claim within the prescribed five-day period after giving notice of its intent to pay their claim. On or around February 15, 1994, AMICA and the Janiks reached an agreement whereby a total loss would be claimed on the Janiks’ damaged personal property. Therefore, the Janiks would receive payment for the policy limit of $60,000. However, Blackmon Mooring had submitted a bill for approximately $15,900 in expenses associated *The Janiks raise two additional points of error. First, the Janiks claim that defense counsel engaged in improper jury argument when referring to the Janiks’ attorney as stating that the case was about “‘invisible”’ harm when the Janiks’ attorney in fact said “indivisible” harm. The resulting error, if any, was cured by the district court’s instructions to the jury. Second, the Janiks complain that the district court’s rulings on motions for summary judgment, new trial, and post-trial judgement as a matter of law collectively deprived them of their Seventh Amendment right to trial by jury. This claim is meritless. i ee A-15 with the cleaning and moving of the Janiks’ personal property. Blackmon Mooring’s bill was to be paid out of the $60,000 fund, and the Janiks would receive the remaining $44,100. Confusion arose over weather or not the Janiks wanted AMICA to pay Blackmon Mooring directly. The Janiks eventually paid’ Blackmon Mooring independently. Upon being informed of this payment, AMICA immediately sent the Janiks a check payable to them in the amount of $60,000. Even assuming arguendo that AMICA breached the policy by delaying payment to the Janiks,’® the Janiks have failed to establish any resulting damage from such breach. The Janiks received payment for the policy limit and, thus, the benefit of their bargain with AMICA. Under these facts, there can be no recovery for this alleged breach of the policy. We find that the district court committed no error in its disposition of the Janiks’ claims against AMICA, IAS, and Noble. CONCLUSION The judgment of the district court is affirmed. 'AMICA argues that the uncertainty surrounding the method of paying Blackmon Mooring’s bill mitigated its duty to pay within five days of notifying the Janiks that they would receive $60,000 in benefits under the policy. In support of its position, AMICA relies on a provision in the policy that states that, if payment of a claim requires performance of an act by the insured, payment of the claim must be made within five business days after the date such act is performed by the insured. As we conclude that the Janiks suffered no injury from the alleged breach, we need not address whether AMICA breached the policy. A-16 [Doc #360] Entered June 30, 1998 In the United States District Court for the Northern District of Texas _ Dallas Division ERNEST A. JANIK, JR., et al., Plaintiffs, CITY OF DALLAS, et al., Defendants. Civil Action No. 3:95-CV-2594-D ORDER Plaintiffs’ May 22, 1998 motion for leave to supplement and/or leave to amend their complaint is denied. Plaintiffs seek leave to amend their claim against the City of Dallas (the “City’’) under the Resource Conservation and Recov- ery Act (“ RCRA’’), 42 U.S.C. §§ 6901-6992K. They sought leave to amend after the court filed its May 12, 1998 memoran- dum opinion dismissing the remaining claims against the City, including their RCRA claim. In view of the untimeliness of the motion, and of the fact that it has been mooted by the filing on May 27, 1998 of a Fed. R. Civ. P. 54(b) final judgment dismissing this action against the City, the court denies the motion. SO ORDERED June 29, 1998. n /s/_ SIDNEY A. FITZWATER Sidney A. Fitzwater United States District Judge A-17 [Doc #352] Entered May 28, 1998 In the United States District Court for the Northern District of Texas Dallas Division ERNEST A. JANIK, JR, et al., Plaintiffs, CITY OF DALLAS, et al., Defendants. Civil Action No. 3:95-CV-2594-D JUDGMENT For the reasons set out in memorandum opinions and orders filed April 16, 1998 and May 12, 1998, it is ordered and adjudged plaintiffs’ action against defendant City of Dallas (the “City’’) is dismissed with prejudice. The City’s taxable cost of court, as calculated by the clerk of court, are assessed against plaintiffs. Pursuant to Fed. R. Civ. P. 54(b), the court expressly deter- mines that there is no just reason for delay and directs the clerk of court to enter this as a final judgement. Done at Dallas, Texas this 27th day of May, 1998. /s/_ SIDNEY A. FITZWATER Sidney A. Fitzwater United States District Judge A-18 [Doc #350] Entered May 26, 1998 ~ In the United States District Court for the Northern District of Texas Dallas Division ERNEST A. JANIK, JR., et al., Plaintiff's, v. CITY OF DALLAS, et al., Defendants. Civil Action No. 3:95-CV-2594-D ORDER Plaintiffs’ May 22, 1998 motion to reconsider or vacate and motion to partially reinstate are denied. SO ORDERED May 22, 1998. /s/_ SIDNEY A. FITZWATER Sidney A. Fitzwater United States District Judge A-19 [Doc #343] Entered May 13, 1998 In the United States District Court for the Northern District of Texas Dallas Division ERNEST A. JANIK, JR., et al., Plaintiffs, Vv. THE CITY OF DALLAS, et al., Defendants. Civil Action No. 3:95-CV-2594-D MEMORANDUM OPINION AND ORDER - Defendant the City of Dallas, Texas (the “City”) moves for summary judgment on plaintiffs’ putative claim for recovery pursuant to the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. §§ 6901-6992K, negligence claims for personal injury, common law nuisance, nuisance per se, trespass to land, trespass to chattels and conversion, unavailability of the Federal Declaratory Judgment Act for RCRA claim, state-law based negligence claims, and takings claim based on nuisance. For the reasons that follow, the court grants the motion in part and denies it in part. I This lawsuit has been the subject of several prior opinions, and- the court need not repeat at length the relevant background facts and procedural history. Briefly summarized, plaintiffs Ernest A. Janik, Jr. and Leah Eileen Janik, individually, and as next friends of their minor children, sue several defendants, contending they suffered personal injuries and property damage when sewage backed up into the house they were renting. They sue the City under the Fourteenth Amendment (Takings, Equal Protection, A-20 and Due Process Clauses); the federal Clean Water Act, 33 U.S.C. §§ 1251-1387; the Texas Constitution (Takings, Open Courts, and Due Court of Law articles); the Texas Tort Claims Act, Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001-101.109 (West 1997); the Texas Water Code, Tex. Water Code Ann. § 26.121 (West 1988); the Texas Solid Waste Disposal Act, Tex. Health & Safety Code Ann. §§ 361.001-361.613(West 1992 & Supp. 1997); the Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202; the Texas Declaratory Judgment Act, Tex. Civ. Prac. & Rem. Code Ann. §§ 37.001-37.011 (West 1997); and various other state-law torts. The City assumes that they sue under RCRA. This court has previously dismissed plaintiffs’ claims based on the Clean Water Act, claims brought directly under the United States Constitution (Equal Protection, Due Process, and Takings Clauses); state-law takings claim; ‘claims’ under the Texas Water Code and Texas Solid Waste Disposal Act; ‘‘claims” under the Due Course of Law article and the Open Courts provision of the Texas Constitution; property damage from the City’s negli- gence, and prayer for declaratory relief under both the Texas Declaratory Judgment Act and the Federal Declaratory Judgment Act for plaintiffs’ negligence claim and claims under the Clean Water Act, Texas Water Code, and Waste Disposal Act. II The City moves for summary judgment on plaintiffs’ RCRA claim. The court denies the motion, but holds that plaintiffs’ have not alleged a separate RCRA cause of action. As the City points out, plaintiffs’ third amended complaint does not plead RCRA as a separate cause of action. Rather, plaintiffs intend to utilize RCRA “to aid in proving up plaintiffs’ Clean Water Act-related and nuisance-related causes of action (inter alia), by showing one or more statutory standard violations — so that the Clean Water Act and/or RCRA statutory violations iM io AA EAD NN Sa i aA a I a Ds ~— A-21 ‘convert’ the plaintiffs’ common law nuisance claims into nui- sance per se claims.” Ps. 3d Am. Compl. at 81. This court will not grant summary judgment dismissing a claim that plaintiffs have not pleaded. Accordingly, while acknowledging that no RCRA cause of action has been asserted, the court denies this part of the City’s motion. Il The City also moves for summary judgment on the basis of its defense of sovereign immunity on plaintiffs’ negligence claim for personai injury. “The operation and maintenance of a sanitary sewer is a governmental function” Parr Golf Inc. v. City of Cedar Aull, 718 SW.2d 46, 47 (Tex. App. 1986, no writ). Accordingly, the City is immune except to the extent that the Tort Claims Act waives immunity. Under § 101.021, the City is liable for “per- _ sonal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.” Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2) (West 1997). Assuming arguendo that § 101.021 waives sovereign immunity in the present case, the court must still determine whether the City’s actions in maintaining the sewer system come within an exception to the waiver of immunity. The City relies on § 101.056 of the Tort Claims Act, which provides that immunity is not waived when the claim is based upon the government’s failure to perform an act that the law does not require it to perform, or where the performance or nonperformance of an act is within the City’s discretion.’ Tex. Civ. Prac. & Rem. Code Ann. § 101.056 (West 1997). ‘Section 101.056: This chapter does not apply to a claim based on: (1) the failure of a governmental unit to perform an act that the unit is not required by law to perform; or A-22 The City moves for summary judgment on the basis inter alia that immunity is not waived because there is no law that requires that it maintain the sewer system in a particular manner. It has met its burden, as the summary judgment movant, of demonstrat- ing its entitlement to summary judgment based on § 101.056. Plaintiffs must therefore raise a legal or genuine and material factual issue that would preclude summary judgment. Plaintiffs have not responded to the City’s assertions under § 101.056 and have therefore failed to present such an issue. The court therefore grants summary judgment for the City on its defense of sovereign immunity on plaintiffs’ negligence claims for personal injury.” IV The City moves for summary judgment as to plaintiffs’ claims for the intentional torts of trespass to land, trespass to chattels, and conversion. The City asserts immunity under § 101.057 of the Tort Claims ‘Act, Tex. Civ. Prac. & Rem. Code Ann. § 101.057 (West 1997), which provides, in relevant part, that immunity is not waived for intentional torts.® Plaintiffs have not responded to the applicability (2) a governmental unit’s decision not to perform an act or on its failure to make a decision on the performance or nonperform- ance of an act if the law leaves the performance or nonperformance of the act to the discretion of the governmental unit. Tex. Civ. Prac. & Rem. Code Ann. § 101.056 (West 1997). *Plaintiffs contend that the Clean Water Act, 33 U.S.C. §§ 1251-1387, and RCRA preempt Texas sovereign immunity law. Plaintiffs do not have claims, however, under either of these statutes. ‘Section 101.057 (2): This chapter does not apply to a claim: (2) arising out of assault, battery, false imprisonment, or any other intentional tort, including a tort involving disciplinary action by school authorities. Tex. Civ. Prac. & Rem. Code Ann. § 101.057(2) (West 1997). eee \ A-23 of this section and have therefore failed to raise a legal or factual issue that precludes summary judgment. Consequently, the court grants summary judgment for the City on plaintiffs’ intentional tort claims of trespass to land, trespass to chattels, and conversion. * V The City moves for summary judgment on plaintiffs’ request for declaratory relief under the Federal Declaratory Judgment Act for their RCRA and state-law negligence cisims. Because the court has noted that plaintiffs do not allege a RCRA claim, and has granted summary judgment for the City on the state-law negli- gence claims, the court denies this part of the motion as moot. SO ORDERED. May 12, 1998 /s/_ SIDNEY A. FITZWATER Sidney A. Fitzwater United States District Judge “Because the court has already dismissed plaintiffs’ claims for nuisance, nuisance per se, and takings based on nuisance, the court denies as moot the City’s motions for summary judgment on these claims. A-24 [Doc #342] Entered April 17 or 20, 1998 In the United States District Court for the Northern District of Texas Dallas Division ERNEST A. JANIK, JR., et al., Plaintiffs, Vv. CITY OF DALLAS, et al., Defendants. Civil Action No. 3:95-CV-2594-D MEMORANDUM OPINION AND ORDER Because plaintiffs have clarified in their October 24, 1997 motion to reconsider that their Texas takings claim is based on nuisance, not on taking by flooding, the court grants their motion - to reconsider to the extent that the court vacates its October 14, 1997 memorandum opinion and order and substitutes the follow— ing memorandum opinion and order (which changes only § IV of the October 14, 1997 memorandum opinion and order). Plaintiffs Ernest A. Janik, Jr., and Leah Eileen Janik, individu- \ ally, and as next friends of their minor children, move for partial summary judgment. Defendant City of Dallas (“City”) also moves for partial summary judgment. For the reasons that follow, the court denies plaintiffs’ motion and grants in part and denies in part the City’s motion. I Plaintiffs suffered personal injuries and property damage when sewage backed up into the house they were renting. They sue the City under the Fourteenth Amendinent (Takings, Equal Protec- tion, and Due Process Clauses); the federal Clean Water Act, 33 U.S.C. §§ 1251-1387; the Texas Constitution (Takings, Open A-25 Courts and Due Course of Law articles); the Texas Tort Claims Act, Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001-101.109 (West 1997); the Texas Water Code, Tex. Water Code Ann. § 26.121 (West 1988); the Texas Solid Waste Disposal Act, Tex. Health & Safety Code Ann. §§ 361.001-361 613 (West 1992 & Supp. 1997); the federal Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202; the Texas Declaratory Judgment Act, Tex. Civ. Prac. & Rem. Code Ann. §§ 37.001-.37.011 (West 1997); the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. §§ 6901-6992K; and various other state-law torts. The City moves fo: summary judgment as to all of plaintiffs’ claims except their RCRA claim. Plaintiffs move for partial summary judgment on their Clean Water Act, nuisance per se, takings, and Texas Tort Claims Act claims and their prayer for declaratory relief. II The court first turns to the City’s motion for partial summary judgment, and its contention that plaintiffs lack statutory and constitutional standing to sue under the citizen suits provision of the Clean Water Act, 33 U.S.C. § 1365. \ A Assuming arguendo that plaintiffs have statutory standing under the Clean Water Act through a combination of a discharge violation and other permit violations, the court turns to the City’s assertion that the plaintiffs have failed to produce any evidence of constitutional standing. To establish constitutional standing, plaintiffs must show (1) actual or threatened injury, (2) fairly traceable to the City’s action, 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 (5th Cir. 1996) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Plaintiffs have the burden of persuasion in A-26 establishing standing. Jd. at 361-62 (“Standing is an issue upon which the party invoking federal jurisdiction, the plaintiff, bears the burden of persuasion”). As the summary judgment movant who will not have the burden of proof on this issue at trial, the City need only point the court to the absence of evidence of standing. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986); Slaughter v. Allstate Ins. Co., 803 F.2d 857, 860 (5th Cir. 1986) (stating that movant must point out to district court absence of evidence showing genuine dispute). B The court need only address the second element because plain- tiffs have failed to meet the requirement that the injury be ‘“‘fairly traceable” to any City discharge 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 than 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, 95 F.3d at 360-61 (internal quotations omitted). Plaintiffs have failed to adduce any evidence that they have an interest in the Trinity River, which is the relevant waterway in this case. In general, Rule 56 obligates a party to designate the specific facts in the record that create genuine issues precluding summary judgment. ‘‘Rule 56 does not impose a duty on the district court to sift through the record in search of evidence to support a party’s opposition to summary judgment.”’ Doddy v. Oxy USA, Inc., 101 F.3d.448, 463 (5th Cir. 1996) (citing Jones v. Sheehan, Young, & Culp, P.C., 82 F.8d 1384, 1838 (5th Cir. 1996) ); accord Stults v. Conoco, Inc., 76 F.8d 651, 657 (5th Cir. 1996). The court has no obligation to consider evidence that the nonmov- ‘ ant does not bring forth in opposition to the summary judgment ais cas he A-27 motion. Deddy, 101 F.3d at 468 (citing Copsey v. Swearingen, 86 F.8d 1886, 1847 n. 9 (5th Cir. 1994)).' To satisfy their burden, nonmovants are required to identify specific evidence in the record, and to articulate the precise manner in which that evidence supports their claims. Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.), cert. denied, 513 U.S. 871 (1994) (citing Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.) cert. denied, 506 U.S. 825 (1992)). When a party fails to refer to items in the record, the evidence is not properly before the court in deciding whether to grant the motion. Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 (5th Cir.), cert. denied, 506 U.S. 832 (1992); Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1307 (5th Cir. 1988) (on rehearing) (denying rehearing after plaintiff asserted that deposition was of record when district court granted partial summary judgment, and holding that because plaintiff failed to designate, or in any way refer to, deposition as source of factual support for response to motion, deposition was never made part of competent summary judgment record before district court). Plaintiffs have haphazardly listed points both in their motion and in their response to the City’s motion. They have cited numerous declarations, pleadings, and other-materials that they contend support their motion and opposition to the City’s motion. They have failed not only to refer to specific pages of these documents in the context of each issue, but even to specify the documents that support their position with respect to each issue. Nowhere in their motion or response do plaintiffs identify their specific interest in the Trinity River. Plaintiffs have therefore 'In Waheed v. H & R Block, Inc., 1998 WL 18319, at *8 (N.D. Tex. Jan. 9, 1993) (Fitzwater, J.), for example, this court criticized a summary judgment nonmovant who “‘‘invite[d]’ the court to review the entirety of her two-volume deposition — some 356 pages and accompa- nying exhibits — ‘at its leisure,’ to ascertain ‘that there are genuine issues of material fact involved in this case.’” A-28 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. Plaintiffs also allege other violations of the City’s National Pollutant Discharge Elimination System permit, such as a failure to report and mitigate the damage from the flooding. They do not, however, have standing to sue for these violations absent standing to bring suit for the discharge violation. Friends of the Earth, 95 F.3d at 362 (‘an individuai without standing to sue for discharge violations, a fortiori, lacks standing to sue for reporting viola- tions’) (citing and discussing Sierra Club v. Srmkins Indus., Inc., 847 F.2d 1109, 1113 (4th Cir. 1988) ). Accordingly, the court grants the City’s motion to dismiss plaintiffs’ Clean Water Act claim. Ill The City moves for summary judgment on the Fourteenth Amendment claim for violations of the Equal Protection, Due Process, and Takings Clauses. In their complaint, plaintiffs ask the court to recognize a cause of action directly under these provisions of the United States Constitution. It is settled, however, that plaintiffs cannot bring a civil action against the City except through the_remedial device of 42 U.S.C. § 1983. Hearth, Inc. v. Department of Pub. Welfare, 617 F.2d 381, 382-83 (5th Cir. 1980) (“Congress has provided a means of seeking relief against state officials who violate the Constitution”); Azul-Pacifico, Inc. V. City of Los Angeles, 973 F.2d 704, 705 (9th Cir. 1992) (‘Plaintiff has no cause of action directly under the United States Constitution”); Quality Refrig- erated Servs., Inc. v. City of Spencer, 908 F. Supp. 1471, 1487 n.9 (N.D. Iowa 1995) (concluding that court had no jurisdictional basis to entertain a Takings Clause claim where plaintiff had not invoked § 1983, and stating that “‘[t]here simply is no direct A-29 cause of action arising under the Constitution itself against municipal officials for alleged constitutional violations.”)}. The court grants the City’s motion and dismisses plaintiffs’ claims brought directly under the United States Constitution. IV The City moves for a summary judgment on plaintiffs’ state-law takings claim, which they base or non-negligent nuisance.” Such a claim can be asserted under the state takings provision. Bible Baptist Church v. City of Cleburne, 848 S.W.2d 826, 830 (Tex. App. 1993, writ denied); see also Golden Harvest Co., N.H.T. v. City of Dallas, 942 S.W.2d 682, 689 (Tex. App. 1997, writ denied) (‘‘[nJonnegligent, or intentional nuisance is actionable, and the City is not immune under the Texas Torts Claim Act.’’). The court agrees. The City contends that plaintiffs cannot show nuisance. To establish actionable nuisance, plaintiffs must demonstrate(1) in- tentional invasion of another’s interests,’ (2) negligent invasion of another’s interest, or (3) other conduct, culpable because abnormal or out-of-place in its surroundings, that invades an- other’s interests. Golden Harvest, 942 S.W.2d at 689. The second type is not at issue in this case. Plaintiffs have failed to adduce competent summary judgment evidence that would permit a reasonable trier of fact to find in their favor. Accordingly, the court grants the City’s motion on this ground. Plaintiffs’ nuisance, nuisance per se, and state-law takings are dismissed. 4 “Based upon the briefing, the City is not seeking to show immunity; instead, plaintiffs are attempting to prove non-negligent nuisance. *The intent at issue is the intent to cause harm. City of Tyler v. Likes, —S.W.2d_ , 41 Tex. Sup. Ct. J. 174, 184 (Tex. Dec. 11, 1997). ‘The court denies plaintiffs’ motion to strike the Stalnaker affidavit, and motion for leave to file controverting affidavit, because the court did not rely on the affidavit. Plaintiffs allude to violations of the Texas Water Code, Tex. Water Code Ann. § 26.121 (West 1988), and the Texas Solid Waste Disposal Act, Tex. Health & Safety Code Ann. §§ 361.001- 361.613 (West 1992 & Supp. 1997). To the extent plaintiffs assert separate causes of action for violations of these acts, the court dismisses the claims because plaintiffs do not have a private right of action under either statute. See Tex. Water Code Ann. §§ 26.121-26.124 (West 1988 & Supp. 1997) (providing for enforcement by state commission and “enforcement by others,” but defining ‘‘others”’ as local governments, the Parks and Wildlife Department, or the Attorney General); Garland Grain Co. v. D-C Home Owners Improve. Ass'n, 393 S.W.2d 635, 640 (Tex. Civ. App. 1965, writ ref’d n.r.e.) (holding that “the duty of prohibit- ing pollution of public waters is vested exclusively in the state.” ); Tex. Health & Safety Code Ann. §§ 361.001-361.613 (West 1992 & Supp. 1997); North Alamo Water Supply Corp. v. Texas Dep't of Health, 839 S.W.2d 455, 459 (Tex. App. 1992, writ denied) (“North Alamo has not indicated how the Solid Waste Disposal Act authorizes a private citizen to bring an enforcement action against a party who appears to have violated a permit provision.” ). VI The City contends that the Open Courts provision of the Texas Constitution, Tex. Const. art. 1, § 18, and the Due Course of Law article, Tex. Const. art. 1, § 19, do not apply to this case. The court agrees. Plaintiffs have cited no authority for bringing a claim directly under the Open Courts provision. In addition, this articie prohibits the Legislature, not the courts, from abrogating or restricting a person’s common law cause of action. See Capellen v. Capellen, 888 S.W.2d 539, 545 (Tex. App. 1994, writ denied) (holding that A-31 ‘open courts’ provision is directed at prohibiting the legislature from abrogating or unreasonably restricting a litigant’s right to seek redress by way of a well-established common law cause of action.”) Plaintiffs do not have a private right of action directly under the Due Course of Law article. Mitchell v. Amarillo kosp. Dist., 855 S.W.2d 857 (Tex. App. 1993, writ denied) (holding that plaintiffs could not bring a claim directly under § 19 of the Texas Constitution). Vil The City also moves for summary judgment on the plaintiffs’ negligence claim, for which plaintiffs seek to avoid sovereign immunity under the Tort Claims Act. During construction, operation, and maintenance of its sewer system, the City has sovereign immunity for its negligence, except to the extent waived by the Tort Claims Act. Shade v. City of Dallas, 819 S.W.2d 578, 582 (Tex. App. 1991, no writ). In Texas, the Tort Claims Act waives immunity as provided in Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (West 1997)*° Under the statute, property damage is only recoverable against a govern- mental unit if the damage arises from the operation of a mo- *Section 101.021 provides: A government unit in the state is liable for: (1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if: (A) the property damage, personal injury, or-death arises from the operation or use of a motor-driven vehicle or mo- tor-driven equipment; and (B) the employee would be personally liable to the claimant according to Texas law; and (2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law. A-32 tor-driven vehicle or motor-driven equipment. The operation of the motor-driven vehicle or equipment must cause the property dam- age. City of San Antonio v. Winkenhower, 875 S.W.2d 388, 390 (Tex. App. 1994, no writ). The City contends that plaintiffs cannot recover for property damage because they have not shown that motor-driven vehicles or equipment caused their loss. The court holds that plaintiffs have failed to raise a genuine issue of material fact concerning the use of motor-driven vehicles or equipment and how it caused their loss. Although plaintiffs have provided a long list referencing all summary judgment evidence filed in the case, they have failed to point the court to a specific item of evidence that creates a fact issue.° As the court has explained supra at § II(B), Rule 56 does not obligate the court a duty to sift through the record in search of evidence to support a party’s opposition to summary judgment. Plaintiffs must identify specific evidence in the record, and articu- late the precise manner in which that evidence supports their claims. Therefore, the court dismisses plaintiffs’ claim for property damage arising from the City’s negligence. The City also contends that by nature of its discretionary powers in maintaining a sewer system, it is immune from personal injury and property damage under Tex. Civ. Prac. & Rem. Code § 101.056 (West 1997). As the summary judgment movants, the City is initially responsible for informing the district court of the basis of its motion. Celotex, 477 U.S. at 323. The court holds that the City has not met its summary judgment burden on this issue because it has not adequately informed the court of the basis for this part of its motion. ‘Plaintiffs ask the court to consider their “Notice of Supplemental Declaration Identifying Newly Discovered Evidence,” filed Septem- ber 24, 1997. Even were the court to consider this submission in the context of the City’s summary judgment motion, the information does not raise a fact issue concerning how the motor-driven vehicles and equipment caused plaintiffs’ injuries. A-33 Vil The City moves for summary judgment dismissing plaintiffs’ prayer for relief under both the Texas Declaratory Judgment Act and the Federal Declaratory Judgment Act for plaintiffs’ Clean Water Act claim, negligence claim under the Tort Claims Act, Texas Water Code claim, and Waste Disposal Act claim. The court has granted summary judgment for the City as to all of these claims except for the claim for personal injury from negligence pursuant to the Tort Claims Act. In order to entertain a prayer for declaratory relief, there must exist a justiciable case or contro- versy. Ashcroft v. Mattis, 431 U.S. 171, 172-73 (1977) (“[f]or a declaratory judgment to issue, there must be a dispute which calls, not for an advisory opinion upon a hypothetical basis, but for an adjudication of present right upon established facts”) (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 277, 242 (1937); Barcroft v. State, 900° S.W.2d 370, 372 (Tex. App. 1995, no writ) (discussing, in context of declaratory judgment action, necessity for justiciable controversy). Consequently, plaintiffs’ prayer for declaratory relief based on those causes of action is dismissed as moot. For other reasons, plaintiffs’ prayer for declaratory relief under the Texas Declaratory Judgment Act for the remaining claim of personal injury from the City’s negligence is also dismissed. Texas courts have held that declaratory judgment is not appropriate when plaintiff's cause of action for damages on the same claim is justiciable and provides an appropriate remedy. See Tucker v. Graham, 878 S.W.2d 681, 683 (Tex. App. 1994, no writ) (“declaratory judgment action is not appropriate where plaintiff’s cause of action is mature and enforceable in a pending suit that ~ involves the same parties and the same issues as alleged in the declaratory judgment action”); Southern Traffic Bureau v. Thompson, 232 S.W.2d 742, 750-51 (Tex. Civ. App 1950, writ ref'd n.r.e.) (“If adequate relief, and an appropriate remedy, are \ presently available to the complaining party through the means of A-34 other existing forms of action or proceeding, jurisdiction for a declaratory judgment will not ordinarily be entertained.”’) (cita- tion omitted). Plaintiffs have a justiciable claim for negligence under the Tort Claims Act. Therefore, declaratory judgment is not appropriate for this claim. As for declaratory judgment under the Federal Declaratory Judgment Act for plaintiffs’ claim for personal injuries from the City’s negligence, the City has not met its burden of showing that it is entitled to summary judgment on this issue. IX Finally, the City moves for dismissal of plaintiffs’ claims for nuisance, nuisance per se, trespass, and conversion.’ The court may not dismiss plaintiffs’ complaint for failure to state a claim pursuant to Rule 12(b)(6) unless it appears beyond a doubt that plaintiffs can prove no set of facts in support of their claims that would entitle them to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The court must accept as true the complaint’s allegations and view them in the light most favorable to plaintiffs for purposes of deciding the motion to dismiss. Royal Bank of Can. v. FDIC, 733 F. Supp. 1091, 1094 (N.D. Tex. 1990) (Fitzwater, J.). The court is unable to say that plaintiffs can prove no set of facts entitling them to relief on the basis of their nuisance, nuisance per se, trespass, and conversion claims. Therefore, the court denies this portion of the City’s motion. "The City alternates between asking for summary judgment on these claims and contending that plaintiffs cannot state a claim on which relief can be granted. The court refers to the issues of law presented in the City’s motion, which frame the issue under Fed R. Civ. P. 12(b)(6), and decides the motion under the standards for a motion to dismiss. A-35 X The court next addresses plaintiffs’ motion for partial summary judgment. Plaintiffs move for summary judgment on their Clean Water Act claim, nuisance per se claim, Takings claim, Texas Tort Claims Act, and prayer for declaratory relief. Some of these claims have been eliminated by the court’s granting summary judgment in favor of the City. As to those claims that remain viable, the court denies plaintiffs’ motion. Plaintiffs have failed to make cogent and comprehensible legal arguments that are supported by summary judgment evidence specifically designated in the record. Plaintiffs have instead listed allegations, declarations, and other evidence filed with the court at various times. When the party who will have the burden of proof at trial as to a particular claim or defense moves for summary judgment as to that claim or defense, it bears the burden of establishing “‘beyond peradventure all of the essential elements of the claim or defense.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). The summary judgment nonmovant is not obligated to adduce any summary judgment evidence until the movant has properly supported its motion. Afco Steel, Inc. v. Tobi Eng’g, Inc., 893 F.2d 92, 94 (5th Cir. 1990). The nonmovant may appropriately respond to the motion simply by pointing out that the movant has failed to carry his burden. Isquith v. Middle South Utils., Inc., 847 F.2d 186, 199 (5th Cir.), cert. denied, 488 U.S. 926 (1988). Accordingly, the court denies plaintiffs’ motion.® ‘The City has also filed motions to strike portions of plaintiffs’ summary judgment evidence. The court has not relied on the contested parts of plaintiffs’ evidence in deciding the City’s motion because plaintiffs have failed to refer to it is context. These motions are also moot in light of the court’s denial of plaintiffs’ motion. Plaintiffs object to the City’s late filing of its summary judgment motion. The court granted the City leave to file its summary judgment motion on February 6, 1997. The court overrules the objection. A-36 The court denies plaintiffs’ motion and grants in part and denies in part the City’s motion. SO ORDERED April 16, 1998. By: /s/__SIDNEY A. FITZWATER Sidney A. Fitzwater United States District Judge _ = A-37 [Doc #301] Entered November 20, 1997 In the United States District Court for the Northern District of Texas Dallas Division ERNEST A. JANIK, JR., et al., Plaintiffs, v. CITY OF DALLAS, et al., Defendants. Civil Action No. 3:95-CV-2594-D ORDER Plaintiffs move for reconsideration of the court’s October 14, 1997 memorandum opinion and order granting in part and deny- ing in part defendant City of Dallas’ (“the City’s”) motion for partial summary judgment. Except to direct additional briefing on one issue, the court denies the motion.* Plaintiffs have clarified in their motion for reconsideration that their Texas Takings claim is based on nuisance and not on taking by flooding. The court directs the City to respond to this aspect of plaintiffs’ motion within 20 days of the date this order is filed. Although the City has responded to plaintiff's motion for reconsid- eration, the court has determined that the response does not adequately address this issue. Plaintiffs shall have 15 days after the response is filed in which to file a reply brief in support of this part of their motion for reconsideration. The court otherwise declines to reconsider its October 14, 1997 opinion. Plaintiffs have cited in their motion for reconsideration evidence that they contend supports their allegation that their damages were caused by motor-driven vehicles or equipment. It is * Plaintiffs’ request for oral argument is denied. See Local Civil Rule LR 7.1(g). A-38 within the court’s discretion to consider evidence that plaintiffs failed to point out to the court in their summary judgment briefing. See Copsey v. Swearingen, 35 F. 3d 1336, 1348 (5th Cir. 1994) (holding that district court had discretion to reconsider grant of summary judgment when party submitted evidence after court had ruled on motion) (citing Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 173-75 (5th Cir. 1990)). The court declines to consider this evidence after the court has already decided the City’s motion. Plaintiffs have failed to demonstrate a satisfactory reason for failing to specify that this evidence sup- ports their claim that motor-driven vehicles or equipment caused their damages. Accordingly, except to the extent the court directs the City to respond to a portion of plaintiffs’ motion for reconsideration, the motion is denied. SO ORDERED. November 19, 1997. /s/_ SIDNEY A. FITZWATER Sidney A. Fitzwater United States District Judge A-39 [Doc #238] Entered October 15, 1997 In the United States District Court 7 for the Northern District of Texas Dallas Division ERNEST A. JANIK, JR., et al., Plaintiffs, Vv. CITY OF DALLAS, et al., Defendants Civil Action No. 3.95-CV-2594-D MEMORANDUM OPINION AND ORDER Plaintiffs Ernest A. Janik, Jr., and Leah Eileen Janik, individu- ally, and as next friends of their minor children, move for partial summary judgment. Defendant City of Dallas (‘City’) also moves for partial summary judgment. For the reasons that follow, the court denies plaintiffs’ motion and grants in part and denies in part the City’s motion. I Plaintiffs suffered personal injuries and property damage when sewage backed up into the house they were renting. They sue the City under the Fourteenth Amendment (Takings, Equal Protec- tion, and Due Process Clauses); the federal Clean Water Act, 33 U.S.C. §§ 1251-1387, the Texas Constitution (Takings, Open Courts and Due Course of Law articles), the Texas Tort Claims Act, Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001-101.109 (West 1997), the Texas Water Code, Tex. Water Code Ann. § 26.121 (West 1988); The Texas Solid Waste Disposal Act, Tex. Health & Safety Code Ann. §§ 361.001-361.613 (West 1992 & Supp. 1997); the federal Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202; the Texas Declaratory Judgment Act, Tex. Civ. A-40 Prac. & Rem. Code Ann. §§ 37.001-37.011 (West 1997); the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. §§ 6901-6992K; and various other state-law torts. The City moves for summary judgment as to all of plaintiffs’ claims except their RCRA claim. Plaintiffs move for partial summary judgment on their Clean Water Act, nuisance per se, takings, and Texas Tort Claims Act claims and their prayer for declaratory relief. II The court first turns to the City’s motion for partial summary judgment, and its contention that plaintiffs lack statutory and. constitutional standing to sue under the citizen suits provision of the Clean Water Act, 33 U.S.C. § 1365. A Assuming arguendo that plaintiffs have statutory standing under the Clean Water Act through a combination of a discharge violation and other permit violations, the court turns to the City’s assertion that the plaintiffs have failed to produce any evidence of constitutional standing. To establish constitutional standing, plaintiffs must show (1) actual or threatened injury, (2) fairly traceable to the City’s action, 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 (5th Cir. 1996) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560- 61 (1992). Plaintiffs have the burden of persuasion in establish- ing standing. Jd. at 361-62 (‘‘Standing is an issue upon which the party invoking federal jurisdiction, the plaintiff, bears the burden of persuasion’”’). As the summary judgment movant who will not have the burden of proof on this issue at trial, the City need only point the court to the absence of evidence of standing. Celotexr Corp. v. Catrett, 477 U.S. 317, 323-24 (1986); Slaughter v. Allstate Ins. Co.,-803 F.2d 857, 860 (5th Cir. 1986) (stating that A-41 movant must point out to district court absence of evidence showing genuine dispute). The court need only address the second element because plain- tiffs have failed to meet the requirement that the injury be “fairly traceable” to any City discharge 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 than 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, 95 F.3d at 360-61 (internal quotations omitted). Plaintiffs have failed to adduce any evidence that they have an interest in the Trinity River, which is the relevant waterway in this case. In general, Rule 56 obligates a party to designate the specific facts in the record that create genuine issues precluding summary judgment. “‘Rule 56 does not impose a duty on the district court to sift through the record in search of evidence to support a party’s opposition to summary judgment: Doddy v. Ory USA, Inc., 101 F.3d 448, 463 (5th Cir. 1996) (citing Jones v. Sheehan, Young, & Culp, P.C., 82 F.3d 1334, 1338 (5th Cir. 1996) ); accord Stults v. Conoco, Inc., 76 F.3d 651, 657 (5th Cir. 1996). The court has no obligation to consider evidence that the nonmovant does not bring forth in opposition to the summary judgment motion. Doddy, 101 F.3d at 463 (citing Copsey v. Swearingen, 36 F.3d 1336, 1347 n. 9 (5th Cir. 1994)).' To satisfy their burden, nonmovants are required to identify specific evidence in the ‘In Waheed v. H & R Block, Inc., 1993 WL 13319, at “3 (N.D. Tex. Jan. 9, 1993) (Fitzwater, J.), for example, this court criticized a summary judgment nonmovant who “‘invite[d]’ the court to review the entirety of her two-volume disposition — some 356 pages and accompa- nying exhibits — at its leisure,’ to ascertain ‘that there are genuine issues of material fact involved in this case.’” A-42 record, and to articulate the precise manner in which that evi- dence supports their claims. Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.), cert. denied, 513 U.S. 817 (1994) (citing Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 506 U.S. 825 (1992)). When a party fails to refer to items in the record, the evidence is not properly before the court in deciding whether to grant the motion. Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 (5th Cir.), cert. denied, 506 U.S. 832 (1992); Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1307 (5th Cir. 1998) (on rehearing) (denying rehearing after plaintiff asserted that deposition was of record when district court granted partial summary judgment, and holding that because plaintiff failed to designate, or in any way refer to, deposition as source of factual support for response to motion, deposition was never made part of competent summary judgment record before district court). Plaintiffs have haphazardly listed points both in their motion and in their response to the City’s motion. They have cited numerous declarations, pleadings, and other materials that they contend support their motion and opposition to the City’s motion. They have failed not only to refer to specific pages of these documents in the context of each issue, but even to specify the documents that support their position with respect to each issue. 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 Clear Water Act. Plaintiffs also allege other violations of the City’s National “Pollutant Discharge Elimination System permit, such as a failure to report and mitigate the damage from the flooding. They do not, however, have standing to sue for these violations absent standing to bring suit for the discharge violation. Friends of the Earth, 95 F.3d at 362 (“an individual without standing to sue for discharge violations, a fortiori, lacks standing to sue for reporting viola- A-43 tions’’) (citing and discussing Sierra Club v. Simkins Indus., Inc., 847 F.2d 1109, 1113(4th Cir. 1988) ). Accordingly, the court grants the City’s motion to dismiss plaintiffs’ Clean Water Act claim. III The City moves for summary judgment on the Fourteenth Amendment claim for violations of the Equal Protection, Due Process, and Takings Clauses. In their complaint, plaintiffs ask the court to recognize a cause of action directly under these provisions of the United States Constitution. It is settled, however, that plaintiffs cannot bring a civil action against the City except through the remedial device of 42 U.S.C. § 1983. Hearth, Inc. v. Department of Pub. Welfare, 617 F.2d 381, 382-83 (5th Cir. 1980) (“Congress has provided a means of seeking relief against state officials who violate the Constitution”); Azul-Pacifico, Inc. v. City of Los Angeles, 973 F.2d 704, 705(9th Cir. 1992) (“Plaintiff has no cause of action directly under the United States Constitution”); Quality Refrigerated Servs., Inc. v. City of Spencer, 908 F. Supp. 1471, 1487 n.9(N.D. Iowa 1995) (concluding that court had no jurisdic- tional basis to entertain a Takings Clause claim where plaintiff had not invoked § 1983, and stating that “[t]here simply is no direct cause of action arising under the Constitution itself against municipal officials for alleged constitutional violations”). The court grants the City’s motion and dismisses plaintiffs’ claims brought directly under the United States Constitution. IV The City moves for summary judgment on plaintiffs’ state-law takings claim. To constitute a taking under the Texas Constitu- tion, flooding must be repeated and recurring. Brazos River Auth. v. City of Graham, 354 S.W.2d 99, 108(Tex. 1961). Plaintiffs A-44 have not asserted a repeated flooding of their rented home. They recognize that Texas law requires recurring flooding to constitute a taking. Accordingly, the court dismisses plaintiffs’ Takings claim under the Texas Constitution. V Plaintiffs allude to violations of the Texas Water Code, Tex. Water Code Ann. § 26.121 (West 1988), and the Texas Solid Waste Disposal Act, Tex. Health & Safety Code Ann. §§ 361.001- 361.613 (West 1992 & Supp. 1997). To the extent plaintiffs assert separate causes of action for violations of these acts, the court dismisses the claims because plaintiffs do not have a private right of action under either statute. See Tex. Water Code Ann. §§ 26.121-26.124 (West 1988 & Supp. 1997) (providing for enforcement by state commission and “enforcement by others,” but defining “others” as local governments, the Parks and Wildlife Department, or the Attorney General); Garland Grain Co. v. D-C Home Owners Improve. Ass'n, 393 S.W.2d 635, 640 (Tex. Civ. App. 1965, writ ref'd n.r.e.) (holding that “the duty of prohibit- ing pollution of public waters is vested exclusively in the state’’); Tex. Health & Safety Code Ann. §§ 361.001-361.613 (West 1992 & Supp. 1997); North Alamo Water Supply Corp. v. Texas Dep't of Health, 839 S.W.2d 455, 459 (Tex. App. 1992, writ denied) (“North Alamo has not indicated how the Solid Waste Disposal Act authorizes a private citizen to bring an enforcement action against a party who appears to have violated a permit provision.”’). VI The City contends that the Open Courts provision of the Texas Constitution, Tex. Const. art. I, § 13, and the Due Course of Law A-45 article, Tex. Const. art I, § 19, do not apply to this case. The court agrees. Plaintiffs have cited no authority for bringing a claim directly under the Open Courts provision. In addition, this article prohibits the Legislature, not the courts, from abrogating or restricting a person’s common law cause of action. See Capellen v. Capellen, 888 S.W.2d 539, 545 (Tex. App. 1994, writ denied) (holding that ““open courts’ provision is directed at prohibiting the legislature from abrogating or unreasonably restricting a litigant’s right to seek redress by way of a well-established common law cause of action.”) Plaintiffs do not have a private right of action directly under the Due Course of Law article. Mitchell v. Amarillo Hosp. Dist., 855 S.W.2d 857 (Tex. App. 1993, writ denied) ( holding that plaintiffs could not bring a claim directly under § 19 of the Texas Constitution). Vil The City also moves for summary judgment on the plaintiffs’ negligence claim, for which plaintiffs seek to avoid sovereign immunity under the Tort Claims Act. During construction, operation, and maintenance of its sewer system, the City has sovereign immunity for its negligence, except to the extent waived by the Tort Claims Act. Shade v. City of Dallas, 819 S.W.2d 578, 582 (Tex. App. 1991, no writ). In Texas, the Tort Claims Act waives immunity as provided in Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (West 1997).2 Under the *Section 101.021 provides: A governmental unit in the state is liable for: (1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if: (A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor- driven equipment; and A-46 statute, property damage is only recoverable against a govern- mental unit if the damage arises from the operation of a motor- driven vehicle or motor-driven equipment. The operation of the motor-driven vehicle or equipment must cause the property dam- age. City of San Antonio v. Winkenhower, 875 S.W.2d 388, 390 (Tex. App. 1994, no writ). The City contends that plaintiffs cannot recover for property damage because they have not shown that motor-driven vehicles or equipment caused their loss. The court holds that plaintiffs have failed to raise a genuine issue of material fact concerning the use of motor-driven vehicles or equipment and how it caused their loss. Although plaintiffs have provided a long list referencing all summary judgment evidence filed in the case, they have failed to point the court to a specific item of evidence that creates a fact issue.* As the court has explained supra at § II(B), Rule 56 does not obligate the court a duty to sift through the record in search of evidence to support a party’s opposition to summary judgment. Plaintiffs must identify specific evidence in the record, and articu- late the precise manner in which that evidence supports their claims. Therefore, the court dismisses plaintiffs’ claim for property damage arising from the City’s negligence. The City also contends that by nature of its discretionary powers in maintaining a sewer system, it is immune from personal (B) the employee would be personally liable to the claimant according to Texas law; and (2) personal injury and death so caused by a condition or use of tangible persona! or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law. *Plaintiffs ask the court to consider their “Notice of Supplemental Declaration Identifying Newly Discovered Evidence,” filed Septem- ber 24, 1997. Even were the court to consider this submission in the context of the City’s summary judgment motion, the information does not raise a fact issue concerning how the motor-driven vehicles and equipment caused plaintiffs’ injuries. A-47 injury and property damage under Tex. Civ. Prac. & Rem. Code § 101.056 (West 1997). As the summary judgment movants, the City is initially responsible for informing the district court of the basis of its motion. Celotex, 477 U.S. at 328. The court holds that the City has not met its summary judgment burden on this issue because it has not adequately informed the court of the basis for this part of its motion. Vill The City moves for summary judgment dismissing plaintiffs’ prayer for relief under both the Texas Declaratory Judgment Act and the Federal Declaratory Judgment Act for plaintiffs’ Clean Water Act claim, negligence claim under the Tort Claims Act, Texas Water Code claim, and Waste Disposal Act claim. The court has granted summary judgment for the City as to all of these claims except for the claim for personal injury from negligence pursuant to the Tort Claims Act. In order to entertain a prayer for declaratory relief, there must exist a justiciable case or contro- versy. Ashcroft v. Mattis, 431 U.S. 171, 172-73 (1977) (“[flor a declaratory judgment to issue, there must be a dispute which calls, not for an advisory opinion upon a hypothetical basis, but for an adjudication of present right upon established facts”) (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 277, 242 (1937); Barcroft v. State, 900 S.W.2d 370, 372 (Tex. App. 1995, no writ) (discussing, in context of declaratory judgment action, necessity for justiciable controversy). Consequently, plaintiffs’ prayer for declaratory relief based on those causes of action is dismissed as moot. For other reasons, plaintiffs’ prayer for declaratory relief under the Texas Declaratory Judgement Act for the remaining claim of personal injury from the City’s negligence is also dismissed. Texas courts have held that declaratory judgment is not appropriate when plaintiff's cause of action for damages on the same claim is justiciable and provides an appropriate remedy. See Tucker v. A-48 Graham, 878 S.W.2d 681, 683 (Tex. App. 1994, no writ) (“declaratory judgment action is not appropriate where plaintiff's cause of action is mature and enforceable in a pending suit that involves the same parties and the same issues as alleged in the declaratory judgment action’); Southern Traffic Bureau v. Thompson, 232 S.W.2d 742, 750-51 (Tex. Civ. App. 1950, writ ref’d n.r.e.) (“‘‘If adequate relief, and an appropriate remedy, are presently available to the complaining party through the means of other existing forms of action or proceeding, jurisdiction for a declaratory judgment will not ordinarily be entertained.’”) (cita- tion omitted). Plaintiffs have a justiciable claim for negligence under the Tort Claims Act. Therefore, declaratory judgment is not appropriate for this claim. As for declaratory judgment under the Federal Declaratory Judgment Act for plaintiffs’ claim for personal injuries from the City’s negligence, the City has not met its burden of showing that it is entitled to summary judgment on this issue. IX Finally, the City moves for dismissal of plaintiffs’ claims for nuisance, nuisance per se, trespass, and conversion.‘ The court may not dismiss plaintiffs’ complaint for failure to state a claim pursuant to Rule 12(b) (6) unless it appears beyond a doubt that plaintiffs can prove no set of facts in support of their claims that would entitle them to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The court must accept as true the complaint’s allegations and view them in the light most favorable to plaintiffs for purposes of deciding the motion to dismiss Royal Bank of Can. v. ‘The City alternates between asking for summary judgment on these claims and contending that plaintiffs cannot state a claim on which relief can be granted. The court refers to the issues of law presented in the City’s motion, which frame the issue under Fed. R. Civ. P. 12(b)(6), and decides the motion under the standards for a motion to dismiss. A-49 FDIC, 733 F. Supp. 1091, 1094 (N.D. Tex. 1990) (Fitzwater, J.). The court is unable to say that plaintiffs can prove no set of facts entitling them to relief on the basis of their nuisance, nuisance per se, trespass, and conversion claims. Therefore, the court denies this portion of the City’s motion. X The court next addresses plaintiffs’ motion for partial summary judgement. Plaintiffs move for summary judgment on their Clean Water Act claim, nuisance per se claim, Takings claim, Texas Tort Claims Act, and prayer for declaratory relief. Some of these claims have been eliminated by the court’s granting summary judgment in favor of the City. As to those claims that remain viable, the court denies plaintiffs’ motion. Plaintiffs have failed to make cogent and comprehensible legal arguments that are supported by summary judgment evidence specifically designated in the record. Plaintiffs have instead listed allegations, declarations, and other evidence filed with the court at various times. When the party who will have the burden of proof at trial as to a particular claim or defense moves for summary judgment as to that claim or defense, it bears the burden of establishing ‘“‘beyond peradventure all of the essential elements of the claim or defense.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). The summary judgment nonmovant is not obligated to adduce any summary judgment evidence until the movant has properly supported its motion. Afco Steel, Inc. v. Tobi Eng’g, Inc., 893 F.2d 92, 94 (5th Cir. 1990). The nonmovant may appropriately respond to the motion simply by pointing out that the movant has failed to carry his burden. Isquith v. Middle South A-50 Utils., Inc., 847 F.2d 186, 199 (5th Cir.), cert. denied, 488 U.S. 926 (1988). Accordingly, the court denies plaintiff's motion.* * * * [Three asterisks in original ] The court denies plaintiffs’ motion and grants in part and denies in part the City’s motion. SO ORDERED. October 14, 1997. /s/_ SIDNEY A. FITZWATER Sidney A. Fitzwater United States District Judge *The City has also filed motions to strike portions of plaintiffs’ summary judgment evidence. The court has not relied on the contested parts of ss plaintiffs’ evidence in deciding the City’s motion because plaintiffs have failed to refer to it in context. These motions are also moot in light of the court’s denial of plaintiffs’ motion. Plaintiffs object to the City’s late filing of its summary judgment motion. The court granted the City leave to file its summary judgment motion on February 6, 1997. The court overrules the objection. APPENDIX PART B ” i A t Libis ‘ial My Un en ee a ir ay sian mare PRC eM eT OR Re RE Mee RL Ne EN Te eee: TT eee ne re * ee ee dis} $3 PY a ane NT ao é COPED i ane hal Sent 0 SN ae ier ii agatha AT pene OHO a Bt am PERE ARNE NE REE LIER) HSS SIMEON BOER Se * Bots B-1 U.S. CONSTITUTION PROVISIONS ARTICLE II Section 2 a (1) The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all cases of admiralty and maritime Jurisdiction;—to Controversies between two or more States; be- tween a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. ARTICLE VI (2) This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. B-2 FEDERAL STATUTES 28 U.S.C.A. § 1254. Courts of appeals; certiorari; appeal; certified questions Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods: (1) By writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree; B-3 SELECTED CLEAN WATER ACT STATUTES 33 U.S.C. § 1251 CONGRESSIONAL DECLARATION OF GOALS AND POLICY 33 U.S.C. § 1311 EFFLUENT LIMITATIONS 33 U.S.C. § 1342 N.P.D.E.S. (POLLUTER’S PERMIT PROGRAM) 33 U.S.C. § 13865 CITIZEN SUITS TITLE 33. NAVIGATION AND NAVIGABLE WATERS CHAPTER 26 — WATER POLLUTION PREVENTION AND CONTROL SUBCHAPTER I — RESEARCH AND RELATED PROGRAMS § 1251. Congressional declaration of goals and policy (a) Restoration and maintenance of chemical, physical and biological integrity of Nation’s waters; national goals for achieve- ment of objective The objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. In order to achieve this objective it is hereby declared that, consistent with the provisions of this chapter — (1) it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985; * * * * * (3) it is the national policy that the discharge of toxic pollu- tants in toxic amounts be prohibited; * * * * * (7) it is the national policy that programs for the control of nonpoint sources of pollution be developed and implemented in an expeditious manner so as to enable the goals of this chapter to be B-4 met through the control of both point and nonpoint sources of pollution. * * * * * (e) Public participation in development, revision, and enforce- ment of any regulation, etc. Public participation in the development, revision, and enforce- ment of any regulation, standard, effluent limitation, plan, or program established by the Administrator or any State under this chapter shall be provided for, encouraged, and assisted by the Administrator and the States. The Administrator, in cooperation with the States, shall develop and publish regulations specifying minimum guidelines for public participation in such processes. * * * * * (June 30, 1948, c. 758, Title I, § 101, as added Oct. 18, 1972, Pub.L. 92-500, § 2, 86 Stat. 816, and amended Dec. 27, 1977, Pub.L. 95-217, §§ 5(a), 26(b), 91 Stat. 1567, 1575.) (As amended Feb. 4, 1987, Pub.L. 100-4, Title III, § 316(b), 101 Stat. 60.) Codification The Federal Water Pollution Control Act, comprising this chap- ter, was originally enacted by Act dune 30, 1948, c. 758, 62 Stat. 1155, and amended by Acts July 17, 1952, c. 927, 66 Stat. 755; July 9, 1956, c. 518, 70 Stat. 498; June 25, 1959, Pub.L. 86-70, 73 Stat. 141; July 12, 1960, Pub.L. 86-624, 74 Stat. 411; July 20, 1961, Pub.L. 87-88, 75 Stat. 204; Oct. 2, 1965, Pub.L. 89-234, 79 Stat. 903; Nov. 3, 1966, Pub.L. 89-753, 80 Stat. 1246; Apr. 3, 1970, Pub.L. 91-224, 84 Stat. 91; Dec. 31, 1970, Pub.L. 91-611, 84 Stat. 1818; July 9, 1971, Pub.L. 92-50, 85 Stat. 124; Oct. 13, 1971, Pub.L. 92-137, 85 Stat. 379; Mar. 1, 1972, Pub.L. 92-240, 86 Stat. 47, and was formerly classified first to section 466 et. seq. of this title and later to section 1151 et seq. B-5 of this title. The Act is shown herein, however, as having been added by Pub.L. 92-500 without reference to such intervening amendments because of the extensive amendment, reorganiza- tion, and expansion of the Act’s provisions by Pub.L. 92-500. Legislative History For legislative history and purpose of Pub.L. 92-500, see 1972 U.S.Code Cong. and Adm.News, p. 3668. See, also, Pub.L. 95-217, 1977 U.S.Code Cong. and Adm.News. p. 4326. For legislative history and purpose of Pub.L. 100-4, see 1987 U.S.Code Cong. and Adm.News, p. 5. SUBCHAPTER III—STANDARDS AND ENFORCEMENT § 1311. Effluent limitations (a) Illegality of pollutant discharges except in compliance with law Except as in compliance with this section and sections 1312, 1316, 1317, 1828, 1342, and 1344 of this title, the discharge of any pollutant by ay person shall be unlawful. * * * * * (2) Requirements for granting modifications A modification under this subsection shall be granted only upon a showing by the owner or operator of a point source satisfactory to the Administrator that — * * * * * (C) such modification will not interfere with the attainment or maintenance of that water quality which shall assure protection of public water supplies, and the protection and propagation of a balanced population of shellfish, fish, and wildlife, and allow B-6 recreational activities, in and on the water and such modification will not result in the discharge of pollutants in quantities which may reasonably be anticipated to pose an unacceptable risk to human health or the environment .. . (June 30, 1948, c. 758, Title III, § 301, as added Oct. 18, 1972, Pub.L. 92-500, § 2, 86 Stat. 844, and amended Dec. 27, 1977, Pub.L. 95-217, §§ 42-47, 53(c), 91 Stat. 1582-1586, 1590; Dec. 29, 1981, Pub.L. 97-117, §§ 21, 22(a)-(d), 95 Stat. 1631, 1632; Jan. 8, 1983, Pub.L. 97-440, 96 Stat. 2289.) (As amended Feb. 4, 1987, Pub.L. 100-4, Title II], §§ 301(a) to (e), 302(a) to (d), 303(a), (b)(1), (c) to (f), 304(a), 305, 306(a), (b), 307, 101 Stat. 29-37; Nov. 18, 1988, Pub.L. 100- 688, Title III, § 3202(b), 102 Stat. 4154; Oct. 31, 1994, Pub.L. 103-431, § 2, 108 Stat. 4396; Dec. 21, 1995, Pub.L. 104-66, Title II, § 2021(b), 109 Stat. 727.) Legislative History For legislative history and purpose of Pub.L. 92-500, see 1972 U.S. Code Cong. and Adm.News, p. 3668. See, also, Pub.L. 95- 217, 1977 U.S. Code Cong. and Adm.News, p. 4326; Pub.L. 97- 117, 1981 U.S. Code Cong. and Adm.News, p. 2629. For legislative history and purpose of Pub.L. 100-4, see 1987 U.S. Code Cong. and Adm.News, p. 5. See, also, Pub.L 100-688, 1988 U.S. Code Cong. and Adm.News, p. 5767; Pub.L. 104-66, 1995 U.S. Code Cong. and Adm.News, p. 674. ~ B-7 SUBCHAPTER IV — PERMITS AND LICENSES § 1342. National pollutant discharge elimination system (a) Permits for discharge of pollutants (1) Except as provided in sections 1328 and 1344 of this title, the Administrator may, after opportunity for public hearing, issue a permit for the discharge of any pollutant, or combination of pollutants, notwithstanding section 1311(a) of this title, upon condition that such discharge will meet either (A) all applicable requirements under sections 1311, 1312, 1316, 1317, 1318, and 1343 of this title, or (B) prior to the taking of necessary implementing actions relating to all such requirements, such conditions as the Administrator determines are necessary to carry out the provisions of this chapter. (2) The Administrator shall prescribe conditions for such per- mits to assure compliance with the requirements of para- graph (1) of this subsection, including conditions on data and information collection, reporting, and such other requirements as he deems appropriate. (3) The permit program of the Administrator under para- graph (1) of this subsection, and permits issued thereunder, shall be subject to the same terms, conditions and requirements as apply to a State permit program and permits issued thereunder under subsection (b) of this section. (4) All permits for discharges into the navigable waters issued pursuant to section 407 of this title, shall be deemed to be permits issued under this subchapter, and permits issued under this subchapter shall be deemed to be permits issued under section 407 of this title, and shall continue in force and effect for their term unless revoked, modified, or suspended in accordance with the provisions of this chapter. B-8 (j) Public information A copy of each permit application and each permit issued under this section shall be available to the public. Such permit applica- tion or permit, or portion thereof, shall further be available on request for the purpose of reproduction. (k) Compliance with permits Compliance with a permit issued pursuant to this section shall be deemed compliance, for purposes of sections 1319 and 1365 of this title, with sections 1311, 1312, 1316, 13817, and 1348 of this title, except any standard imposed under section 1317 of this title for a toxic pollutant injurious to human health... * * * * * (3) Permit requirements (A) Industrial discharges Permits for discharges associated with industrial activity shall meet all applicable provisions of this section and section 1311 of this title. (B) Municipal discharge Permits for discharges from municipal storm sewers — (i) may be issued on a system- or jurisdiction-wide basis; (ii) shall include a requirement to effectively prohibit non- stormwater discharges into the storm sewers; and (iii) shall require controls to reduce the discharge of pollutants to the maximum extent practicable, including manage- ment practices, control techniques and system, design and engineering methods, and such other provisions as the Administrator or the State determines appropriate for the control of such pollutants. * * * *&© B-9 (June 30, 1948, c. 758, Title IV, § 402, as added Oct. 18, 1972, Pub.L. 92-500, § 2, 86 Stat. 880, and amended Dec. 27, 1977, Pub.L. 95-217, §§ 33(c), 50, 54(c)(1), 65, 66, 91 Stat. 1577, 1588, 1591, 1599, 1600.) (As amended Feb. 4, 1987, Pub.L. 100-4, Title IV, §§ 401 to 404(a), (c), formerly (d), 405, 101 Stat. 65 to 67, 69; Oct. 31, 1992, Pub.L. 102-580, Title III, § 364, 106 Stat. 4862; Dec. 21, 1995, Pub.L. 104-66, Title II, § 2021(e) (2), 109 Stat. 727.) Legislative History For legislative history and purpose of Pub.L. 92-500, see 1972 U.S.Code Cong. and Adm.News, p. 3668. See, also, Pub.L. 95- 217, 1977 U.S.Code Cong. and Adm.News, p. 4326. For legislative history and purpose of Pub.L. 100-4, see 1987 U.S.Code Cong. and Adm.News, p. 5. See, also, Pub.L. 104-66, 1995 U.S.Code Cong. and Adm.News, p. 674. SUBCHAPTER V — GENERAL PROVISIONS § 1365. Citizen suits (a) Authorization; jurisdiction Except as provided in subsection (b) of this section and section 1319(g) (6) of this title, any citizen may commence a civil action on his own behalf — (1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extént permitted by the eleventh amendment to the Constitution ) who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation, or ee B-10 (2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator. The district courts shali have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such an effluent standard or limitation, or such an order, or to order the Administrator to perform such act or duty, as the case may be, and to apply any appropriate civil penalties under section 1319(d) of this title. (b) Notice No action may be commenced — (1) under subsection (a)(1) of this section — (A) prior to sixty days after the plaintiff has given notice of the alleged violation (i) to the Administrator, (ii) to the State in which the alleged violation occurs, and (iii) to any alleged violator of the standard, limitation, or order, or (B) if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order, but in any such action in a court of the United States any citizen may intervene as a matter of right. (2) under subsection (a) (2) of this section prior to sixty days after the plaintiff has given notice of such action to the Administrator, except that such action may be brought immediately after such notification in the case of an action under this section respecting a violation of sections 1316 and 1317(a) of this title. Notice under this subsection shall be given in such manner as the Administrator shall prescribe by regulation. * * *« * * (d) Litigation costs The court, in issuing any final order in any action brought pursuant to this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any prevailing or substantially prevailing party, whenever the court determines such award is appropriate. The court may, if a temporary re- straining order or preliminary injunction is sought, require the filing of a bond or equivalent security in accordance with the Federal Rules of Civil Procedure. (e) Statutory or common law rights not restricted. Nothing in this section shall restrict any right which any person (or class of persons) may have under any statue or common law to seek enforcement of any effluent standard or limitation or to seek any other relief (including relief against the Administrator or a State agency). (f) Effiuent standard or limitation For purposes of this section, the term “effluent standard or limitation under this chapter” means (1) effective July 1, 1973, an unlawful act under subsection (a) of section 1311 of this title; (2) an effluent limitation or other limitation under section 1311 or 1312 of this title; (3) standard of performance under sec- tion 1316 of this title; (4) prohibition, effluent standard or pretreatment standards under section 1317 of this title; (5) certi- fication under section 1341 of this title; (6) a permit or condition thereof issued under section 1342 of this title, which is in effect under this chapter (including a requirement applicable by reason of section 1323 of this title); or (7) a regulation under section 1345(d) of this title. B-12 (g) “Citizen” defined For the purposes of this section the term “citizen’’ means a person or persons having an interest which is or may be adversely affected. * * * * * (June 30, 1948, c. 758, Title V, § 505, as added Oct. 18, 1972, Pub.L. 92-500, § 2, 86 Stat. 888.) (As amended Feb. 4, 1987, Pub.L. 100-4, Title III, § 314(c), Title IV, § 406(d) (2), Title V, §§ 504, 505(c), 101 Stat. 49, 73, 75, 76.) . | Legislative History For legislative history and purpose of Pub.L. 92-500, see 1972 U.S.Code Cong. and Adm.News, p.3668. For legislative history and purpose of Pub.L. 100-4, see 1987 U.S.Code Cong. and Adm.News, p.65. B-13 SELECTED R.C.R.A. STATUTES 42 U.S.C. § 6901 CONGRESSIONAL FINDINGS 42 U.S.C. § 6903 DEFINITIONS 42 U.S.C. § 6989 DOMESTIC SEWAGE 42 U.S.C. § 6972 CITIZEN SUITS TITLE 42. THE PUBLIC HEALTH AND WELFARE CHAPTER 82—SOLID WASTE DISPOSAL SUBCHAPTER I—GENERAL PROVISIONS § 6901. Congressional findings o 7 & * * (b) Environment and health The Congress finds with respect to the environment and health, that — * * ad * * (2) disposal of solid waste and hazardous waste in or on the land without careful planning and management can present a danger to human health and the environment; * * * *” * (4) open dumping is particularly harmful to health, contami- nates drinking water from underground and surface supplies, and pollutes the air and the land; (5) the placement of inadequate controls on hazardous waste management will result in substantial risks to human health and the environment; (6) if hazardous waste management is improperly performed in the first instance, corrective action is likely to be expensive, complex, and time consuming; * + * me * B-14 Pub.L. 89-272, Title II, § 1002, as added Pub.L. 94-580, § 2, Oct. 21, 1976, 90 Stat. 2796, and amended Pub.L. 95-609, § 7(a), Nov. 8, 1978, 92 Stat. 3081; Pub.L. 98-616, Title I, § 101(a), Nov. 8, 1984, 98 Stat. 3224.) Revision Notes and Legislative Reports 1976 Acts. House Report No. 94-1491(Parts I and II), see 1976 U.S. Code Cong. and Adm. News, p. 6238. 1978 Acts. House Report No. 95-1171, see 1978 U.S. Code Cong. and Adm. News, p. 7569. 1984 Acts. House Report No. 98-198 and House Conference Report No. 98-1133, see 1984 U.S. Code Cong. and Adm. News, p. 5576. Codifications The statutory system governing the disposal of solid wastes set out in this chapter is found in Pub.L. 89-272, Title II, as amended in its entirety and completely revised by section 2 of Pub.L. 94-580, Oct. 21, 1976, 90 Stat. 2795. SUBCHAPTER I — GENERAL PROVISIONS § 6903. Definitions As used in this chapter: * * * * * (3) The term “disposal” means the discharge, deposit, injec- tion, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters. B-15 (5) The term “hazardous waste” means solid waste, or combi- nation of solid wastes, which because of its quantity, concentra- tion, or physical, chemical, or infectious characteristics may — (A) cause, or significantly contribute to an increase in mortal- ity or an increase in serious irreversible, or incapacitating revers- ible, illness; or (B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, trans- ported, or disposed of, or otherwise managed. * * * * * (7) The term “hazardous waste management” means the systematic control of the collection, source separation, storage, transportation, processing, treatment, recovery, and disposal of hazardous wastes. * * * * * (15) The term “person” means an individual, trust, firm, joint stock company, corporation (including a government corpora- tion), partnership, association, State, municipality, commission, political subdivision of a State, or any interstate body and shall include each department, agency, and instrumentality of the United States. * * * * * (26A) The term “sludge” means any solid, semisolid or liquid waste generated from a municipal, commercial, or industrial wastewater treatment plant, water supply treatment plant, or air pollution control facility or any other such waste having similar characteristics and effects. (27) The term “solid waste” means any garbage, refuse, — sludge from a waste treatment plant, water supply treatment B-16 plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities, but does not include solid or dissolved material in domestic sewage. ... * * + * * (29) The term “‘solid waste management facility” includes — ca * - * * (C) any facility for the collection, source separation, storage, transportation, transfer, processing, treatment or disposal of solid wastes, including hazardous wastes, whether such facility is associated with facilities generating such wastes or otherwise. * * * * * (83) The term “‘storage’’, when used in connection with haz- ardous waste, means the containment of hazardous waste, either on a temporary basis or for a period of years, in such a manner as not to constitute disposal of such hazardous waste. (34) The term “treatment”, when used in connection with hazardous waste, means any method, technique, or process, in- cluding neutralization, designed to change the physical, chemical, or biological character or composition of any hazardous waste so as to neutralize such waste or so as to render such waste nonhazardous, safer for transport, amenable for recovery, amena- ble for storage, or reduced in volume. Such term includes any activity or processing designed to change the physical form or chemical composition of hazardous waste so as to render it nonhazardous. B-17 (40) Except as otherwise provided in this paragraph, the term “medical waste” means any solid waste which is generated in the diagnosis, treatment, or immunization of human beings or ani- mals, in research pertaining thereto, or in the production or testing of biologicals. Such term does not include any hazardous waste identified or listed under subchapter III of this chapter or any household waste as defined in regulations under sub- chapter III of this chapter. * * * * * (Pub.L. 89-272, Title II, § 1004, as added Pub.L. 94-580, § 2, Oct. 21; 1976, 90 Stat. 2798, and amended Pub.L. 95-609, § 7(b), Nov. 8, 1978, 92 Stat. 3081; Pub.L. 96-463, § 3, Oct. 15, 1980, 94 Stat. 2055; Pub.L. 96-482, § 2, Oct. 21, 1980, 94 Stat. 2334; Pub.L. 100-582, § 3, Nov. 1, 1988, 102 Stat. 2958; Pub.L. 102-386, Title I, §§ 103, 105(b), Oct. 6, 1992, 106 Stat. 1507, 1512.) Revision Notes and Legislative Reports 1976 Acts. House Report No. 94-1491(Parts I and II), see 1976 U.S. Code Cong. and Adm. News, p. 6238. 1978 Acts. House Report No. 95-1171, see 1978 U.S. Code Cong. and Adm. News, p. 7569. 1980 Acts. House Report No. 96-1415, see 1980 U.S. Code Cong. and Adm. News, p. 4354. Senate Report No. 96-172 and House Conference Report No. 96-1444, see 1980 U.S. Code Cong. and Adm. News, p. 5019. B-18 SUBCHAPTER III — HAZARDOUS WASTE MANAGEMENT § 6939. Domestic sewage (a) Report The Administrator shall, not later than 15 months after Novem- ber 8, 1984, submit a report to the Congress concerning those substances identified or listed under section 6921 of this title which are not regulated under this subchapter by reason of the exclusion for mixtures of domestic sewage and other wastes that pass through a sewer system to a publicly owned treatment works. Such report shall include the types, size and number of generators which dispose of such substances in this manner, the types and quantities disposed of in this manner, and the identifica- tion of significant generators, wastes, and waste constituents not regulated under existing Federal law or regulated in a manner sufficient to protect human health and the environment. (b) Revisions of regulations Within eighteen months after submitting the report specified in subsection (a) of this section, the Administrator shall revise existing regulations and promulgate such additional regulations pursuant to this subchapter (or any other authority of the Administrator, including section 1317 of Title 33) as are neces- sary to assure that substances identified or listed under sec- tion 6921 of this title which pass through a sewer system to a publicly owned treatment works are adequately controlled to protect human health and the environment. * * %*© * * (Pub.L. 89-272, Title II, § 3018, as added Pub.L. 98-616, Title II, § 246(a), Nov. 8, 1984, 98 Stat. 3264.) B-19 Revision Notes and Legislative Reports 1984 Acts. House Report No. 98-198 and House Conference Report No. 98-1133, see 1984 U.S. Code Cong. and Adm. News, p. 5576. SUBCHAPTER VII — MISCELLANEOUS PROVISIONS § 6972. Citizen suits (a) In general Except as provided in subsection (b) or (c) of this section, any person may commence a civil action on his own behalf — (1)(A) against any person (including (a) the United States, and (b) any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this chapter; or (B) against any person, including the United States and any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitu- tion, and including any past or present generator, past or present transporter, or past or present owner or operator of treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and sub- stantial endangerment to health or the environment; or * * * * * Any action under paragraph (a) (1) of this subsection shall be brought in the district court for the district in which the alleged B-20 violation occurred or the alleged endangerment may occur. Any action brought under paragraph (a) (2) of this subsection may be brought in the district court for the district in which the alleged violation occurred or in the District Court of the District of Columbia. The district court shall have jurisdiction, without re- gard to the amount in controversy or the citizenship of the parties, to enforce the permit, standard, regulation, condition, require- ment, prohibition, or order, referred to in paragraph (1) (A), to restrain any person who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste referred to in para- graph (1)(B), to order such person to take such other action as may be necessary, or both, or to order the Administrator to perform the act or duty referred to in paragraph (2), as the case may be, and to apply any appropriate civil penalties under section 6928(a) and (g) of this title. (b) Actions prohibited (1) No action may be commenced under subsection (a)(1)(A) of this section — (A) prior to 60 days after the plaintiff has given notice of the violation to — (i) the Administrator; (ii) the State in which the alleged violation occurs; and (iii) to any alleged violator of such permit, standard, regulation, condition, requirement, prohibition, or order, except that such action may be brought immediately after such notification in the case of an action under this section respecting a violation of subchapter III of this chapter; or (B) if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States or a State to require compliance with such B-21 permit, standard, regulation, condition, requirement, prohibi- tion, or order. In any action under subsection (a)(1)(A) of this section in a court of the United States, any person may intervene as a matter of right. (2)(A) No action may be commenced under subsection (a) (1) (B) of this section prior to ninety days after the plaintiff has given notice of the endangerment to — (i) the Administrator; (ii) the State in which the alleged endangerment may occur; (iii) any person alleged to have contributed or to be contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or haz- ardous waste referred to in subsection (a)(1)(B) of this section, except that such action may be brought immediately after such notification in the case of an action under this section respecting a violation of subchapter III of this chapter. s+ *#£ *¢ & (e) Costs The court, in issuing any final order in any action brought pursuant to this section or section 6976 of this title, may award costs of litigation (including reasonable attorney and expert witness fees) to the prevailing or substantially prevailing party, whenever the court determines such an award is appropriate. The court may, if a temporary restraining order or preliminary injunc- tion is sought, require the filing of a bond or equivalent security in accordance with the Federal Rules of Civil Procedure. B-22 (f) Other rights preserved Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any standard or requirement relating to the management of solid waste or hazardous waste, or to seek any other relief (including relief against the Administrator or a State agency ). . 7 o = + ” (Pub.L. 89-272, Title II, § 7002, as added Pub.L. 94-580, § 2, Oct. 21, 1976, 90 Stat. 2825, and amended Pub.L. 95-609, § 7(p), Nov. 8, 1978, 92 Stat. 3083; Pub.L. 98-616, Title IV, § 401, Nov. 8, 1984, 98 Stat. 3268.) Revision Notes and Legislative Reports 1976 Acts. House Report No. 94-1491 (Parts I and II), see 1976 U.S.Code Cong. and Adm.News, p. 6238. 1978 Acts. House Report No. 95-1171, see 1978 U.S.Code Cong. and Adm.News, p. 7569. 1984 Acts. House Report No. 98-198 and House Conference Report No. 98-1133, see 1984 U.S.Code Cong. and Adm.News, p. 5576. B-23 CODE OF FEDERAL REGULATIONS VOLUME 40 PROTECTION OF ENV IRONMENT Parts 87 to 135 Revised as of July 1, 1997 Containing a codification of documents of general applicability and future effect. As of July 1, 1997. Pt. 122, App. D at page 568 Table V — Toxic Pollutants and Hazardous Substances Required To Be Identified by Existing Dischargers if Expected To Be Present. Toxic Pollutants Asbestos Hazardous Substances Acetaldehyde Allyl aleohol Allyl chloride Amyl acetate Aniline Benzonitrile Benzyl chloride Butyl acetate Butylamine Captan Carbary] Carbofuran Carbon disulfide Chlorpyrifos B-24 Coumaphos Cresol Crotonaldehyde Cyclohexane 2,4-D (2,4-Dichlorophenoxy acetic acid) Diazinon Dicamba Dichlobenil Dichlone 2,2-Dichloropropionic acid Dichlorvos Diethyl amine Dimethyl amine Dinitrobenzene Diquat Disulfoton Diuron Epichlorohydrin Ethion Ethylene diamine Ethylene dibromide Formaldehyde Furfural Guthion Isoprene Isopropanolamine Dodecylbenzenesulfonate Kelthane Kepone Malathion Mercaptodimethur Methoxychlor Methyl! mercaptan Methy! methacrylate Methy! parathion Mevinphos B-25 Mexacarbate Monoethy! amine Monomethy] amine Naled Napthenic acid Nitrotoluene Parathion Phenolsulfanate Phosgene Propargite Propylene oxide Pyrethrins Quinoline Resorcinol Strontium Strychnine Styrene 2,4,5-T ( 2,4,5-Trichlorophenoxy acetic acid) TDE (Tetrachlorodiphenylethane ) 2,4,5-TP [2-(2,4,5-Trichlorophenoxy ) propanoic acid] Trichlorofan Triethanolamine dedecylbenzenesulfonate Triethylamine Trimethylamine Uranium Vanadium Vinyl acetate -Xylene Xylenol Zirconium B-26 EPA-ISSUED NPDES PERMIT (for the City of Dallas) AUTHORIZATION TO DISCHARGE UNDER THE NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM TRINITY RIVER BASIN PERMIT TX0047830/TX0047848 PART III STANDARD CONDITIONS FOR NPDES PERMITS SECTION A. GENERAL CONDITIONS 1. Introduction In accordance with the provisions of 40 CFR Part 122.41, et. seq., this permit incorporates by reference ALL conditions and requirements applicable to NPDES Permits set forth in the Clean Water Act, as amended, (hereinafter known as the “‘Act’’) as well as ALL applicable regulations. 2. Duty to Comply The permittee must comply with all conditions of this permit. Any permit noncompliance constitutes a violation of the Act and is grounds for enforcement action; for permit termination, revoca- tion and reissuance, or modification; or for denial of a permit ‘renewal application. * * * * * 8. Criminal and Civil Liability Except as provided in permit conditions on “Bypassing” and “Upsets’’, nothing in this permit shall be construed to relieve the permittee from civil or criminal penalties for noncompliance. Any false or materially misleading representation or concealment of information required to be reported by the provisions of the permit, the Act, or applicable regulations, which avoids or effec- B-27 tively defeats the regulatory purpose of the Permit may subject the Permittee to criminal enforcement pursuant to 18U.S.C. Section 1001. 9. Oil and Hazardous Substance Liability Nothing in this permit shall be construed to preclude the institution of any legal action or relieve the permittee from any responsibilities, liabilities, or penalties to which the permittee is or may be subject under Section 311 of the Act. 10. State Laws Nothing in this permit shall be construed to preclude the institution of any legal action or relieve the permittee from any responsibilities, liabilities, or penalties established pursuant to any applicable State Law or regulation under authority preserved by Section 510 of the Act. * * * * ** SECTION B. PROPER OPERATION AND MAINTENANCE * * * * * 2. Duty to Mitigate The permittee shall take all reasonable steps to minimize or prevent any discharge in violation of this permit which has a reasonable likelihood of adversely affecting human health or the environment. 3. Proper Operation and Maintenance a. The permittee shall at all times properly operate and maintain all facilities and systems of treatment and control (and related appurtenances) which are installed or used by permittee as efficiently as possible and in a manner which will minimize upsets and discharges of exc [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1249%3A2. Public record. Not legal advice.