High Quality
Open the downloaded document, and select print from the file menu (PDF reader required).
P
LAINTIFF
’
S
O
RIGINAL
C
OMPLAINT
P
AGE
1
IN THE UNITED STATES DISTRICT COURTEASTERN DISTRICT OF TEXASSHERMAN DIVISIONASH GROVE TEXAS, L.P.,Plaintiff,v.CITY OF PLANODefendant.§§§§§§§§§Civil Action No. _______________P
LAINTIFF
’
S
O
RIGINAL
C
OMPLAINT
Plaintiff Ash Grove Texas, L.P. (“Ash Grove”) files this Original Complaint againstDefendant the City of Plano (“Defendant”) as follows:
I.I
NTRODUCTION
1.
On April 28, 2008, Defendant adopted a cement-purchasing resolution thatpurportedly had as its primary objective the promotion of “cleaner air.” Although Defendant’sstated objective in adopting this resolution was laudable, the resolution has done little, if anything, to actually improve air quality. Instead, what the resolution
has
accomplished is tounfairly stifle competition in the cement industry and jeopardize jobs and economic growth inwhat are already extremely challenging economic times. Moreover, in passing andimplementing the resolution at issue herein, Defendant has blindly trampled upon Ash Grove’sconstitutional and statutory rights.2.
Specifically, the resolution violates Ash Grove’s constitutional rights as it (i) isvoid for vagueness; (ii) amounts to a regulatory taking; (iii) is arbitrary and capricious; and (iv)violates the equal protection clause. Accordingly, Ash Grove seeks a declaration from this Court
Case 4:09-cv-00359-MHS-ALM Document 1 Filed 07/28/2009 Page 1 of 22
P
LAINTIFF
’
S
O
RIGINAL
C
OMPLAINT
P
AGE
2that the resolution is improper and invalid, any purchases made pursuant to the resolution areinvalid, and any attempt by the Defendant to use its purchasing power to regulate air quality isimproper and invalid. Ash Grove also seeks an injunction preventing the Defendant fromenforcing the resolution, which, upon information and belief, Defendant has begun to do.Finally, Ash Grove seeks relief under 42 U.S.C. § 1983 because the Defendant, acting under thecolor of law, has deprived Ash Grove of its constitutional rights.
II.P
ARTIES
,
J
URISDICTION
,
AND
V
ENUE
3.
Plaintiff Ash Grove Texas, L.P. is a Texas limited partnership, with its principalplace of business in Midlothian, Ellis County, Texas.4.
Defendant the City of Plano is a municipal corporation located in Collin County,Texas, organized and existing under the law of the State of Texas. Pursuant to T
EX
.
C
IV
.
P
RAC
.
&
R
EM
.
C
ODE
A
NN
. § 17.024(b), the City of Plano may be served with process by serving a copyof the summons and of the complaint on its mayor, clerk, secretary, or treasurer at Plano CityHall, 1520 Avenue K, Plano, Texas 75074.5.
This Court has subject matter jurisdiction over this matter pursuant to 28 U.S.C.§§ 1331, 1343, and 1367.6.
Venue is proper in this District pursuant to 28 U.S.C. § 1391 because theDefendant resides in this District and is located in this State, and a substantial part of the eventsor omissions giving rise to the claims occurred in this District.
III.F
ACTUAL
B
ACKGROUND
A.
Ash Grove and Its Commitment to the Environment.
7.
Ash Grove is a cement manufacturer with an approximately $200 million plant
Case 4:09-cv-00359-MHS-ALM Document 1 Filed 07/28/2009 Page 2 of 22
P
LAINTIFF
’
S
O
RIGINAL
C
OMPLAINT
P
AGE
3located in Midlothian, Texas (the “Plant”). Ash Grove employs approximately 124 people at thePlant. There are two other cement manufacturers with plants in Midlothian (an ideal geographiclocation because of the substantial limestone supply), and all cement is manufactured inMidlothian (and in fact the world) using either wet process kilns or dry process kilns.
1
AshGrove manufactures cement at the Plant using three wet process kilns. For many years, AshGrove has supplied cement from its Plant to customers who, in turn, supply contractorscompeting in the bid process for contracts with the Defendant.8.
Ash Grove takes its responsibility to the environment seriously. In addition tocomplying with extensive regulations regarding emissions, Ash Grove has voluntarily reduced itsnitrogen oxide (“NOx”) emissions from the Plant and continues to seek out new and innovativeways reduce its effect on the environment and increase its environmental sustainability.9.
For example, Ash Grove reduced its NOx emissions by 46% between 2006 and2008. Of the three cement manufacturing plants located in the Midlothian area, Ash Grove’sPlant has the lowest total NOx emissions, representing less than approximately 25% of total NOxemissions from the three plants. In fact, during the summer of 2008
2
the Plant operated at anaverage NOx emissions level that was lower than the emissions levels of ten of the thirteen dry
1
A cement kiln is a huge, cylindrical, rotating steel tube where raw materials (often limestone, shale, andsand) are heated to make cement “clinker” (which looks like golf-ball sized rocks). After the clinker exits the kiln, itis ground into fine dust – cement.
See also
30 T
EX
.
A
DMIN
.
C
ODE
§ 117.260(1) (“Clinker-The Product of a Portlandcement kiln from which finished cement is manufactured by milling and grinding.”). The “wet kiln” and “dry kiln”terminology distinguishes the two processes for introducing raw materials into a cement kiln. In the wet process, theraw materials are introduced into the kiln in a wet “slurry” consistency. In the dry process, the raw materials areintroduced into a kiln in a relatively dry form.
See also
30 T
EX
.
A
DMIN
.
C
ODE
§ 117.260(3)-(4) (defining wet anddry kilns). The cement clinker that leaves the kiln is the same regardless of whether a wet or dry process is used.
2
The TCEQ has accepted Ash Grove’s audited 2008 NOx emissions data without requiring further review,subsequent verification, or modification.
Case 4:09-cv-00359-MHS-ALM Document 1 Filed 07/28/2009 Page 3 of 22
Add a Comment