Gulf Restoration Network v. Oscar Renda Contracting, Inc.

Filing 146

ORDER denying 101 Motion for Summary Judgment; denying 107 Motion for Partial Summary Judgment; finding as moot 115 Motion to Strike Signed by District Judge Louis Guirola, Jr on 12/13/2018 (Guirola, Louis)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
GULF RESTORATION NETWORK
v.

PLAINTIFF
CAUSE NO. 1:17CV130-LG-RHW

OSCAR RENDA CONTRACTING, INC.

DEFENDANT

ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT
BEFORE THE COURT are the [101] Motion for Summary Judgment filed by
the plaintiff Gulf Restoration Network; the [107] Motion for Partial Summary
Judgment filed by the defendant Oscar Renda Contracting, Inc.; and the [115]
Motion to Strike filed by the Network. The Motions have been fully briefed. After
due consideration of the parties’ submissions and the relevant law, it is the Court’s
opinion that the Motions should be denied.
I. BACKGROUND
Oscar Renda is engaged in a large infrastructure project called the East
Biloxi Street Repair Program, which involves replacing water, sewer, drainage and
street infrastructure systems damaged by Hurricane Katrina. The Program has
involved the disturbance of a large area of land adjacent to the Back Bay of Biloxi.
Oscar Renda was required to, and did obtain Large Construction General Permits
from the Mississippi Department of Environmental Quality (“MDEQ”) to conduct its
work. The current Permit allows Oscar Renda to “discharge storm water from
regulated construction activities into state waters in accordance with effluent
limitations, inspection requirements and other conditions set forth in [sic] herein.”

(Network Mot. Summ. J. Ex. 5, at 53, ECF No. 101-5) (ECF pagination). The
Permit required Oscar Renda to develop a site-specific Storm Water Pollution
Prevention Plan (SWPPP) that “describe[s] and ensure[s] the implementation of
specific best management practices for the project site, which will reduce pollutants
in storm water discharges and assure compliance with the terms and conditions” of
the Permit. (Id. at 70.)
The entire Project is separated into eight project areas, each of which was
designed by a separate civil engineering firm. The engineering firms also designed
a SWPPP for their respective project areas, resulting in eight SWPPP’s for the
entire Project. (See id. Ex. 6, at 123, ECF No. 101-6) (ECF pagination).
The Amended Complaint includes ten claims for relief, one of which was
dismissed by the Court’s Order granting partial summary judgment. The
remaining claims allege Oscar Renda’s failure to comply with the terms of the Large
Construction General Permit and the SWPPPs. The Network alleges that Oscar
Renda has failed to 1) either sequence its construction activities so that the
disturbed area is minimized, or justify why sequencing is infeasible; 2) develop best
management practices that reflect the specific conditions of the construction site; 3)
implement necessary structural controls; 4) have adequate procedures in place for
the removal of accumulated sediment and to timely mitigate and prevent migration
of soil and debris from work sites; 5) maintain the storm water control devices in
good working order; 6) fully implement the SWPPPs or amend them where proven
ineffective; 7) ensure that storm water discharge is free from eroded soils and

suspended solids; 8) meet its duties to comply with all terms of the Permit and to
mitigate discharge that is in violation of the Permit; and 9) notify the MDEQ of
anticipated or unanticipated noncompliance as a result of significant rain events.
(Am. Compl. 18-20, ECF No. 14.)
II. DISCUSSION
A. The Network’s Summary Judgment Motion
The Network filed a Motion for Summary Judgment arguing that it is
entitled to judgment as a matter of law in regard to Oscar Renda’s liability for
violating the Clean Water Act. The Network asserts that Oscar Renda’s violation of
the Clean Water Act has been established through 1) the declaration of nearby
resident Elizabeth Englebretson that she observed runoff from the Project area into
storm drain inlets and certain bayous “on dozens of occasions;” and 2) an Oscar
Renda employee admitted to observing runoff with any significant rainfall. (Pl.
Mem. 17, ECF No. 102.) The Network attaches a large number of photographs and
videos showing conditions during a rainfall event or the effects of runoff, and points
to Oscar Renda’s admission that it never informed the MDEQ of an incidence of
non-compliance with the Permit. The Network asserts that the photographs,
videos, and Englebretson’s testimony make it “indisputable that Oscar Renda
violated the terms of the Storm Water Permit at the sites and in the ways stated in
Exhibit 1, and failed to report that non-compliance.” (Id. at 19.)
The Court has examined Exhibit 1. It is a spreadsheet matching images of
an area, the construction drawings, and Englebretson’s commentary on her
observations of the area. Presumably the Court is to compare what the area should

look like according to the construction drawings to what it actually looks like
according to Englebretson’s testimony and the images, and arrive at the conclusion
that a Permit violation occurred. In the Court’s view, the evidence presented by the
Network is necessary but not sufficient to prove its claims.1
To illustrate the point, the Court notes that Engelbretson refers to a number
of instances of the lack of, or the poor condition of, a silt/sediment fence. Although
this may be a Permit violation, at least one of the SWPPP’s states that silt fences
would be
installed downslope of disturbed areas or in minor swales or ditch lines
that have been constructed for the sole purpose of facilitating
stormwater drainage. Silt fencing and sediment barriers will not be
installed in live streams or in areas where surface flow is anticipated
to exceed one (1) cubic foot per second.
(Network Mot. Summ J. Ex. 6, at 9, ECF No. 101-6) (ECF pagination). Thus,
whether silt fencing was necessary at a particular location is a fact that the
Network must establish in addition to the fact of whether it was present or
adequate. Accordingly, the Court finds that the Network has not satisfied its initial
burden of proof as a summary judgment movant. The Motion will be denied.
B. Oscar Renda’s Motion to Strike
Oscar Renda moved to strike the affidavits of Elizabeth Englebretson and
Robert Smith submitted by the Network in support of its summary judgment

1

In its rebuttal, the Network went beyond its initial general argument for
summary judgment by incorporating specific arguments and additional evidence in
support of its Motion. As Oscar Renda did not have an opportunity to respond, the
Court will not consider it at this stage. See AAR, Inc. v. Nunez, 408 F. App’x 828,
830 (5th Cir. 2011).

motion. Englebretson and Smith are two identified members of the Network
organization. Oscar Renda contends that the affidavits should be striken because
they are not based on first-hand knowledge, refer to impermissible hearsay, and
include impermissible expert opinions. This motion will be denied as moot. It was
not necessary to rely on either affidavit to determine if there was a question of
material fact.
C. Oscar Renda’s Summary Judgment Motion
Oscar Renda requests summary judgment only on the alleged violations for
which the Network cannot show prima facie evidence of each essential element of a
violation of the Clean Water Act. Oscar Renda “asks the Court to review the actual
evidence that [the Network] will offer to support each of the thousands of alleged
violations, and dismiss those for which GRN lacks evidence of the essential
elements of a Clean Water Act violation.” (Oscar Renda Mem. in Support of Mot.
Summ. J. 3, ECF No. 108.) In particular, Oscar Renda’s Motion “focuses on the
absence of evidence that a pollutant from a point source was actually discharged to
waters of the United States.” (Id. at 5.) Oscar Renda argues that it was engaged to
replace Biloxi’s stormwater system that did not drain properly because it had
become clogged with sand and debris after Hurricane Katrina. Oscar Renda argues
that “with limited exceptions, [the Network] does not have evidence to support its
contention that stormwater entering any drain inlet necessarily made its way to an
outfall and eventually discharged to waters of the United States.” (Id. at 6.)
Initially, the Court notes the nature of this case, which is a citizen suit to

enforce the effluent limitations imposed by a permit. See 33 U.S.C. § 1365(a)(1)(A)
(permitting a citizen suit against persons “alleged to be in violation of an effluent
standard or limitation”). The Network seeks to show that Oscar Renda has violated
certain terms of the Permit and underlying SWPPPs, not that Oscar Renda has
discharged effluent into the waters of the United States. Oscar Renda does have
permission to discharge to waters of the United States as long as it occurs under
specified conditions and limitations. The question here is compliance with the
conditions and limitations, not whether discharge occurred. As the Ninth Circuit
Court of Appeals explained,
several courts have held that citizens groups may seek to enforce many
kinds of permit conditions besides effluent limitations. In fact, permit
conditions that courts commonly enforce under § 505(a) are not effluent
limitations, but rather, requirements for retaining records of discharge
sampling and for filing reports. See, e.g., Sierra Club v. Simkins
Industries, Inc., 847 F.2d 1109, 1115 (4th Cir. 1988) (“Simkins’
reporting requirements are expressly made conditions of its permit,
and therefore violations of these conditions, by operation of § 1365(f)(6)
[CWA § 505(f)(6) ], are violations of an effluent standard or limitation
of § 1365(a)."), cert. denied, 491 U.S. 904, 109 S.Ct. 3185, 105 L.Ed.2d
694 (1989). Other examples of enforceable permit conditions include
conditions relating to sewage maintenance, Pymatuning Water Shed
Citizens for a Hygienic Env’t v. Eaton, 506 F. Supp. 902 (W.D. Pa.
1980), aff’d, 644 F.2d 995 (3rd Cir. 1981), and construction schedules,
Locust Lane v. Swatara Township Auth., 636 F. Supp. 534, 539 (M.D.
Pa. 1986) (rejecting defendant’s attempt “to impose a limitation on §
1365 where one is neither supported by the language nor the
legislative history”). Finally, citizens groups may enforce even valid
permit conditions that regulate discharges outside the scope of the
Clean Water Act, namely discharges that may never reach
navigable waters. Connecticut Fund For Env’t v. Raymark Indus.,
Inc., 631 F. Supp. 1283, 1285 (D. Conn. 1986).
Nw. Envtl. Advocates v. City of Portland, 56 F.3d 979, 988-89 (9th Cir. 1995)
(emphasis added).

Therefore, whether the stormwater eventually drained into the waters of the United
States is not dispositive of the claims in this case.
Even if discharge into waters of the United States was necessary for the
Network to obtain judgment in its favor, Oscar Renda has not identified which of
the individual violations cannot be supported with evidence of the essential
elements of a Clean Water Act violation. Instead, Oscar Renda has left it to the
Court to review each picture and determine whether it depicts a violation. Nor has
Oscar Renda identified what the “limited exceptions” to the lack of evidence
regarding discharge might be.
This does not satisfy Oscar Renda’s initial burden of proof as a summary
judgment movant. “[A] party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for its motion, and
identifying those portions of ‘the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,’ which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Simply viewing pictures of various drain pipes
and waterways cannot inform the Court of whether there has been a violation of the
Permit or SWPPP terms. This is a classic question of fact unsuited to resolution on
summary judgment. For these reasons, Oscar Renda’s Motion will be denied.
IT IS THEREFORE ORDERED AND ADJUDGED that the [101] Motion
for Summary Judgment filed by the plaintiff Gulf Restoration Network is DENIED.
IT IS FURTHER ORDERED AND ADJUDGED that the [107] Motion for

Partial Summary Judgment filed by the defendant Oscar Renda Contracting, Inc. is
DENIED.
IT IS FURTHER ORDERED AND ADJUDGED that the [115] Motion to
Strike filed by Gulf Restoration Network is DENIED as moot.
SO ORDERED AND ADJUDGED this the 13th day of December, 2018.

s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
UNITED STATES DISTRICT JUDGE