ELR Citation: ELR 21095
No(s). M-88-0147 (E.D. Tex. Jan 2, 1991)

In a citizen suit under the Federal Water Pollution Control Act (FWPCA), the court holds that a municipality is potentially liable for violating the FWPCA by improperly discharging effluents from its wastewater system into a lake, and plaintiffs may proceed with their nuisance claims. Moss coverage has made the lake unusable for plaintiffs' recreational activities. A judge had entered summary judgment in favor of defendant municipality; when he recused himself, the parties filed motions to reconsider or alter previous judgments in the case. The court first holds that the "law of the case" doctrine does not preclude a successor judge from reconsidering the first court's ruling. The successor judge has the same discretion as the first judge to reconsider the order. The court next holds that plaintiffs submitted enough evidence initially to create a material issue of fact, and that the defendant would not be prejudiced by the court's consideration of additional evidence that plaintiffs obtained after the first summary judgment was entered.

The court holds that plaintiffs have standing to sue under FWPCA §505. Plaintiffs' initial allegation that the defendant is in violation of effluent standards is sufficient to invoke the initial subject matter jurisdiction of the federal district court. The defendant has failed to meet its burden of proving that the allegations are sham. The court holds that the case is not moot, since defendant has not shown that there is no reasonable expectation that it will violate its parameters again. The court holds that plaintiffs have established the city's liability on the chlorine residual and flow parameters and are entitled to partial summary judgment as to the city's liability for civil penalties for violation of those parameters. The court next holds that the defendant is not entitled to summary judgment on plaintiffs' nuisance claim, since there is a genuine issue of material fact concerning the characterization of plaintiffs' injury as temporary or permanent under Texas law. If the injury is permanent, plaintiffs' claim is barred under the Texas statute of limitations. The court next holds that sovereign immunity applies to the city's operation of its wastewater facility, except to the extent that the Texas Tort Claims Act waives that immunity. The city is not immune from the imposition of damages for nuisance. Defendant is not liable for negligent operation of its wastewater facility. Plaintiffs are not entitled to injunctive relief because there is an adequate remedy available to them at law.

Counsel for Plaintiff
T. John Ward
Brown, Maroney, Oaks & Hartline
2727 Allen Pkwy, 1300 Wortham Tower, Houston TX 77019
(713) 529-3110

Counsel for Defendant
David J. LaBrec
Strasberger & Price
901 Main St., Ste. 4300, Dallas TX 75202
(214) 651-4300