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Berry v. Farmland Indus., Inc.

ELR Citation: 31 ELR 20161
Nos. No. 99-2337-JWL, 114 F. Supp. 2d 1150/(D. Kan., 09/08/2000)

The court holds that individuals lack standing to bring a Clean Air Act (CAA) citizen suit against a petroleum refinery for failing to report certain CAA emissions violations from its catalyst regenerator, but the individuals do have standing to maintain a CAA citizen suit against the refinery for failure to report CAA emissions violations from its clause sulfur recovery unit (CSRU). The court first holds that with regard to alleged reporting violations from the regenerator, the individuals cannot show redressability because they have not come forward with facts that the refinery was violating the CAA at the time the individuals filed suit or that future violations of the Act were imminent at the time the individuals filed suit. The individuals contend that the risk of continued reporting violations had not been completely eradicated when they filed suit. The individuals offered administrative orders and consent decrees entered against the refinery to demonstrate that the refinery has a history of curing its self-monitoring and reporting only when faced with enforcement. However, even if these exhibits demonstrate a past pattern of intermittent violations and subsequent corrections by the refinery, such a pattern would not allow a finding that future violations were imminent when the complaint was filed. Allegations of future injury must be particular and concrete, and the individuals need more support for their allegations that there was a risk of imminent future reporting violations. Further, the court refuses to postpone its ruling until discovery is completed. The individuals claim that future discovery could reveal additional reporting violation, but because they commenced suit over one year ago there is simply no reason to delay the ruling.

The court next holds that a consent decree that the refinery entered into with the U.S. Environmental Protection Agency (EPA) does not bar the individuals' claims that the refinery failed to report CAA emissions violations from its CSRU. Although the CSRU emissions violations are not addressed in the consent decree, the refinery argued that EPA knew of the violations and that the decree settled all violations known to EPA. However, the decree specifically defines what was "known to EPA," and the CSRU violations do not fall within the definition.

Counsel for Plaintiffs
Charles C. Steincamp
Depew & Gillen
151 N. Main St., Ste. 800, Wichita KS 67202
(316) 265-9621/262-4000

Counsel for Defendant
Clayton Barker
Spencer, Fane, Britt & Browne
1000 Walnut St., Ste. 1400, Kansas City MO 64106
(816) 474-8100