City of Hattiesburg v. Hercules, Inc. et al

Filing 215

ORDER denying 158 Motion for Partial Summary Judgment; finding as moot 162 Motion for Extension of Time to File Response/Reply ; finding as moot 162 Motion to Expedite; finding as moot 164 Motion to Strike. Signed by District Judge Keith Starrett on 1/15/2016 (scp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
CITY OF HATTIESBURG
V.

PLAINTIFF
CIVIL ACTION NO. 2:13-CV-208-KS-MTP

HERCULES, INC., et al.

DEFENDANTS
ORDER

For the reasons provided below, the Court denies Plaintiff’s Motion for Partial
Summary Judgment [158] without prejudice, denies Defendant’s Motion [162] for
an extension of time to respond to the Motion for Partial Summary Judgment as moot,
and denies Plaintiff’s Motion to Strike [164] the affidavit of Marcia Williams as moot.
A.

Motion for Partial Summary Judgment [158]
Plaintiff filed a Motion for Partial Summary Judgment [158] on October 9, 2015

– almost five months before the end of the discovery period. Therein, Plaintiff argues
that the Court should enter summary judgment as to its claim that Defendant violated
the Resource Conservation Recovery Act (“RCRA”)1 and Mississippi’s regulatory
program authorized by the RCRA. Plaintiff argues that Defendant violated these
regulations by owning and operating a facility used for the storage and disposal of
toxaphene without the required permit.
Plaintiff’s argument has several layers of regulatory and factual analysis. First,
Plaintiff contends that “wastewater treatment sludge from the production of

1

42 U.S.C. §§ 6901, et seq.

toxaphene” is a listed hazardous waste under the RCRA.2 Next, Plaintiff argues that
the RCRA’s waste listings are applied retroactively to wastes disposed of prior to the
listing date,3 but that wastes disposed of prior to listing are only subject to regulation
if they are “actively managed,” which is defined as “physically disturbing accumulated
wastes within a management unit or disposing of additional hazardous wastes in
existing units containing previously disposed wastes.”4 Wastewater sludge from the
production of toxaphene was listed as a hazardous waste in November 1980.5
Plaintiff contends that Defendant manufactured toxaphene and disposed of the
wastewater sludge in an unlined impounding basin from 1951-1952 – prior to
toxaphene wastewater sludge being listed as a hazardous waste under the RCRA.
Plaintiff contends that Defendant moved sludge from the impoundment basin to
unlined sludge pits throughout the 1970's, 1980's, and 1990's. Therefore, Plaintiff
contends that Defendant has actively managed the toxaphene wastewater sludge postlisting, subjecting it to the RCRA’s permit requirement.6

2

See 40 C.F.R. § 261.32(a).

3

See Identification and Listing of Hazardous Waste, 57 Fed. Reg. 37284 (Aug.
18, 1992) (to be codified at 40 C.F.R. §§ 261, 271, 302); Chem. Waste Mgmt., Inc. v.
EPA, 869 F.2d 1526, 1537 (D.C. Cir. 1989).
4

See Identification and Listing of Hazardous Waste, 57 Fed. Reg. at 37284;
Chem. Waste Mgmt., 869 F.2d at 1537.
5

See Identification and Listing of Hazardous Waste, 45 Fed. Reg. 74884
(November 12, 1980) (to be codified at 40 C.F.R. § 261).
6

See 42 U.S.C. § 6925(a); 40 C.F.R.§§ 270, et seq.; 11-3 MISS. CODE R. § 1
(LexisNexis 2015).
2

In response, Defendant argues that it should receive additional time to
investigate and conduct discovery pursuant to Rule 56(d), which provides:
If a nonmovant shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its opposition, the
court may:
(1)

defer considering the motion or deny it;

(2)

allow time to obtain affidavits or declarations or to take
discovery; or

(3)

issue any other appropriate order.

FED. R. CIV. P. 56(d).
Motions for discovery under Rule 56(d) “are broadly favored and should be
liberally granted.” Culwell v. City of Forth Worth, 468 F.3d 868, 871 (5th Cir. 2006).
“Although a continuance of a motion for summary judgment for purposes of discovery
should be granted almost as a matter of course, the party seeking additional discovery
must first demonstrate how that discovery will create a genuine issue of material fact.”
Six Flags, Inc. v. Westchester Surplus Lines Ins. Co., 565 F.3d 948, 963 (5th Cir. 2009).
Vague assertions that discovery will reveal unspecified facts are insufficient. See Am.
Family Life Assur. Co. of Columbus v. Biles, 714 F.3d 887, 894 (5th Cir. 2013). The
party seeking a continuance is required to “set forth a plausible basis for believing that
specified facts, susceptible of collection within a reasonable time frame, probably exist
and indicate how the emergent facts, if adduced, will influence the outcome of the
pending summary judgment motion.” Id. The decision to grant or deny a 56(d) motion
is committed to the sound discretion of the trial court. See Saavedra v. Murphy Oil
3

USA, Inc., 930 F.2d 1104, 1107 (5th Cir. 1991).
Defendant identified two specific areas of inquiry that it contends must be
further investigated. First, Defendant argues that it needs more time to determine
whether the toxaphene detected in the sludge pit and impoundment basin samples
might reasonably have come from a different source than wastewater sludge. Next,
Defendant argues that additional facts are necessary to determine whether the
wastewater sludge deposited in the impoundment basin falls within the scope of the
RCRA’s hazardous waste listing, as argued by Plaintiff. Defendant contends that it
must retain experts to answer this question.
As the Court previously noted,7 Rule 56(d) motions “are broadly favored and
should be liberally granted.” Culwell, 468 F.3d at 871. Due to the complexity of the
factual issues raised by Plaintiff’s motion, the Court believes it would be prudent for
the parties to complete discovery before any dispositive rulings. Defendant identified
two areas of inquiry that could arguably have bearing on the outcome of Plaintiff’s
motion. There are approximately six weeks left in the discovery period. Delaying
dispositive rulings for this brief time will not prejudice any party. More importantly,
it may provide the Court with a more complete record upon which to rule. The gravity
and implications of this case, and the complexity of its legal and factual disputes
demand that the Court proceed with caution.

7

See Order, City of Hattiesburg v. Hercules, Inc., No. 2:13-CV-208-KS-MTP
(S.D. Miss. Jan. 12, 2015), ECF No. 101 (denying Defendant’s Motion for Partial
Summary Judgment [78] without prejudice pursuant to Rule 56(d)).
4

Accordingly, the Court denies Plaintiff’s Motion for Partial Summary Judgment
[158] without prejudice. Plaintiff may seek summary judgment again once the
discovery period has completed.
B.

Motion for an Extension of Time [162]
The Court denies Defendant’s Motion [162] for an extension of time to respond

to Plaintiff’s Motion for Partial Summary Judgment as moot.
C.

Motion to Strike [164]
The Court denies Plaintiff’s Motion to Strike [162] the affidavit of Marcia

Williams as moot. The Court did not consider the affidavit.
SO ORDERED AND ADJUDGED this 15th day of January, 2016.

s/ Keith Starrett
UNITED STATES DISTRICT JUDGE

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