United States of America et al v. STABL, Inc.

Filing 106

MEMORANDUM AND ORDER that the 101 Motion for Reconsideration filed by Defendant Stabl, Inc., is denied. Ordered by Chief Judge Laurie Smith Camp. (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
THE UNITED STATES OF AMERICA,
and THE STATE OF NEBRASKA,

CASE NO. 8:11CV274

Plaintiffs,
vs.

MEMORANDUM
AND ORDER

STABL, INC. (f/k/a Nebraska ByProducts, Inc.),
Defendant.

This matter is before the Court on the Motion to Reconsider, Modify, Reverse,
and Amend (the “Motion to Reconsider”) (Filing No. 101) filed by Defendant Stabl, Inc.
(“Stabl”), in which Stabl asks the Court to reconsider its Order of May 21, 2013 (the
“Order”) (Filing No. 98), granting in part the Plaintiffs’ Motion for Partial Summary
Judgment on the Issue of Liability (the “Summary Judgment Motion”) (Filing No. 59),
denying Stabl’s Motion to Strike (Filing No. 73) as moot, and granting in part Stabl’s
Supplement to Motion to Strike (Filing No. 87). For the reasons stated below, Stabl’s
Motion to Reconsider will be denied.
STANDARD
This Court’s local rules at one point addressed motions for reconsideration, see
NECivR 60.1 (2009), and included a standard of review for such motions, which stated:
Motions for reconsideration are disfavored, and the court will ordinarily
deny them without a showing of (1) manifest error in the prior ruling or (2)
new facts or legal authority, neither of which could have been brought to
the court’s attention earlier with reasonable diligence.
NECivR 60.1(c) (2009). In 2010, because, “[t]he Federal Rules of Civil Procedure do
not mention motions for reconsideration,” Broadway v. Norris, 193 F.3d 987, 989 (8th

Cir. 1999), this local rule was removed.1 Nevertheless, the Eighth Circuit has found that
when a motion for reconsideration is filed and addresses a nonfinal order, it is properly
construed as a Rule 60(b) motion. Broadway, 193 F.3d at 989. Still, such motions
“‘serve a limited function: to correct manifest errors of law or fact or to present newly
discovered evidence.’” Arnold v. ADT Sec. Servs., Inc., 627 F.3d 716, 721 (8th Cir.
2010) (quoting Hagerman v. Yukon Energy Corp., 839 F.2d 407, 414 (8th Cir.1988)).
BACKGROUND
The Plaintiffs filed this action on August 10, 2011, alleging that Stabl violated the
Clean Water Act (“CWA”), 33 U.S.C. §§ 1311 and 1317, and/or the Nebraska
Environmental Protection Act (“NEPA”), Neb. Rev. Stat. § 81-1502, et seq., by (1)
causing or contributing to the City of Lexington violating its National Pollution Discharge
Elimination System (“NPDES”) permit (“Interference and/or Pass Through Claim”), (2)
discharging pollutants in excess of the limits permitted by its pretreatment permit issued
by the State of Nebraska (“Pretreatment Effluent Limit Violation Claim”), (3) failing to
sample for pollutants it was required to sample pursuant to its pretreatment permit
(“Pretreatment Permit Sampling Violation Claim”), and (4) failing to properly abandon
three wastewater lagoons (“Abandonment Claim”). (Compl., Filing No. 1.)
On January 31, 2013, the Plaintiffs filed their Summary Judgment Motion, which
Stabl opposed by challenging the admissibility of the evidence the Plaintiffs relied upon
to support their claims, both in its opposition brief and in its Motion to Strike and
Supplement to Motion to Strike. Specifically, relevant to Stabl’s Motion to Reconsider,
Stabl challenged the admissibility of its own (Filing No. 61-8) and the City of Lexington’s
1

See 2010 Amendments to Local
http://www.ned.uscourts.gov/attorney/local-rules.

Rules

2

–

Summary of

Changes,

available

at:

(Filing Nos. 69-3 through 69-8, 70-1, 70-2) discharge monitoring reports (“DMRs”) and
the admissibility of the Declaration of Mark J. Klingenstein, P.E. (“Klingenstein’s Initial
Declaration”) (Filing No. 61-5) and the Supplemental Declaration of Mark J.
Klingenstein, P.E. (“Klingenstein’s Supplemental Declaration”) (Filing No. 70-6). Stabl
asserted the DMRs were not admissible because they were hearsay and because the
devices used to collect the data depicted in them were not calibrated, making the DMRs
unreliable.

With respect to Klingenstein’s declarations, Stabl argued they were

inadmissible because Klingenstein is not qualified to testify as an expert on wastewater
treatment and collection issues; he did not specifically designate any of his statements
as “opinions;” his statements were merely reiterations of inadmissible hearsay
documents; and his summary charts were drawn from inadmissible data.
On May 21, 2013, the Court granted the Plaintiffs’ Motion for Partial Summary
Judgment on the Issue of Liability, in part; denied Stabl’s Motion to Strike as moot; and
granted Stabl’s Supplement to Motion to Strike, in part. Relevant to Stabl’s Motion to
Reconsider, the Court found: the DMRs were admissible to prove Stabl’s liability under
the CWA and/or NEPA because Stabl failed to satisfy its “heavy burden” of showing that
they contained reporting inaccuracies (Filing No. 98 at 9, 12); to the extent
Klingenstein’s Supplemental Declaration was filed late, the late filing was substantially
justified and harmless (id. at 13-14); with respect to Stabl’s objections to Klingenstein’s
Initial Declaration, Klingenstein is qualified as an expert regarding wastewater treatment
and collection issues and his charts merely summarized the data contained in the
admissible DMRs (id. at 4-6). Based on the DMRs and Klingenstein’s summary of the
data contained therein, the Court concluded that the Plaintiffs had presented evidence
3

sufficient to establish three of their claims (all but the Abandonment Claim) and granted
summary judgment in favor of the Plaintiffs with respect to those claims because Stabl
failed to point to any controverting evidence.2 The Court, however, left the question of
the exact number of violations to be determined in conjunction with the assessment of
appropriate civil penalties.
DISCUSSION
In its Motion to Reconsider, Stabl has not directed the Court to any newly
discovered evidence or new legal authority. Instead, Stabl contends that the Court
should reconsider its Order because it erred (1) when it denied Stabl’s Supplement to
Motion to Strike and referred to it as a “Supplemental Motion to Strike”; (2) when it
found that Stabl had failed to meet its “heavy burden” of “present[ing] direct evidence of
reporting inaccuracies” in the DMRs, see Pub. Interest Research Grp. of N.J v. Yates
Indus., Inc., 757 F. Supp. 438, 447 (D.N.J. 1991), the evidence that supported the
Court’s finding that Stabl violated the CWA and/or the NEPA; and (3) when it
considered Klingenstein’s declarations.

Having considered the matter, the Court

concludes that Stabl has failed to demonstrate that reconsideration of the Court’s Order
is warranted. The Court will address, briefly, the matters Stabl raised in its Motion to
Reconsider.

2

See United States v. CPS Chem. Co., Inc., 779 F. Supp. 437, 443 (E.D. Ark. 1991) (“[C]ourts
have granted summary judgment on the issue of liability based on a reading of a defendant's DMRs.”).

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I. Supplement to Motion to Strike
While Filing No. 87 may be captioned “Defendant Stabl, Inc.’s Supplement to
Motion to Strike,”3 the record reflects: the Plaintiffs filed Exhibits 24 through 37 on
March 19, 2013, but failed to file a declaration to authenticate those exhibits (Filing Nos.
68 & 69); in its Motion to Strike, Stabl generally sought to strike all those exhibits
because the Plaintiffs failed to file the required declaration, and only provided additional,
specific grounds for striking Exhibits 26 and 30 (Filing Nos. 73 & 75); and, after the
Plaintiffs filed the omitted declaration to authenticate and provide foundation for the
exhibits previously filed and made a part of the record (Filing Nos. 76, 76-1), Stabl filed
its Supplement to Motion to Strike, maintaining its specific grounds for striking Exhibits
26 and 30 and including new specific grounds for striking Exhibits 24, 31, 32, 36, and
37, and failed to respond to the Plaintiffs’ assertion that the filing error had been
corrected and that the filing error had not harmed Stabl (See Filing Nos. 85 & 87).
Under these circumstances, no manifest error was committed when the Court
denied Stabl’s Motion to Strike and only addressed Stabl’s evidentiary objections to
Exhibits 24, 26, 30, 31, 32, 36, and 37. The sole basis Stabl asserted for striking
Exhibits 25, 27, 28, 29, 33, 34, and 35 was that the Plaintiffs failed to file a declaration
to authenticate and provide foundation for those exhibits, and the Court considered all
the arguments Stabl presented in support of striking Exhibits 24, 26, 30, 31, 32, 36, and
37, even those raised in the Motion to Strike. Accordingly, Stabl’s Motion to Reconsider
will be denied to the extent Stabl asks the Court to reconsider its rulings on Stabl’s
Motion to Strike and Supplement to Motion to Strike.
3

The CM/ECF docket entry for Filing No. 87 states: “Supplemental Motion to Strike.”

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II. DMRs
Stabl contends the Court erred when it found Stabl’s and the City of Lexington’s
DMRs were admissible to prove Stabl’s liability under the CWA and NEPA because “no
admissible evidence whatsoever supports in any way that the two major testing devices
utilized to calculate” the results depicted in the DMRs “were ‘calibrated’ or tested in any
way.”

(Filing No. 101 at 3.)

As the Court noted, however, “a permittee's DMRs

constitute admissions regarding the levels of effluents that the permittee has
discharged” and, therefore, “may be used to establish the permittee's liability under the
Act by showing that the permittee has exceeded its NPDES permit limitations” CPS
Chem. Co., 779 F. Supp. at 442, and it was Stabl’s “heavy burden” to “present direct
evidence of reporting inaccuracies” to “avoid liability at the summary judgment stage on
the basis of inaccurate data in DMRs.” Yates Indus., 757 F. Supp. at 447. (Filing No.
98 at 7-9.) Further, to the extent Stabl has pointed to evidence relating to calibration of
the “flow meters” and “samplers,” that evidence indicates either that calibration of those
devices was not necessary to achieve accurate test results,4 or that those devices had
been calibrated, even if not by a City of Lexington employee.5
Keeping in mind that when Stabl agreed to have the City of Lexington perform
testing on Stabl’s behalf, it acknowledged that the City’s “laboratory has been found
proficient” and “able to perform” the testing, the results of which are depicted in the
DMRs (Filing No. 65-6 at § 1.0); and that Stabl’s plant manager signed each of its
4

See Klingenstein’s Supplemental Decl. Filing No. 70-6 at ¶¶ 22, 23; Dep. of Jess Bliven, Filing
No. 65-2 at 153:1-14, 156:23-157:25.
5

See Dep. of Jess Bliven, Filing No. 65-2 at 154:18-25; Dep. of Dennis Sund, Filing No. 65-4 at
60:23-62:2. See also Dep. of Judy Ferguson, Filing No. 65-5, at 24:16-25; Filing No. 61-3 at CM/ECF p.
11.

6

DMRs to “certify under penalty of law” that each DMR was “prepared under [his]
direction or supervision and in accordance with a system designed to assure that
qualified personnel properly gather and evaluate the information submitted,” that,
“[b]ased on [his] inquiry of the person or persons who manage the system, or those
persons directly responsible for gathering the information, the information submitted
[wa]s, to the best of [his] knowledge and belief, true, accurate and complete,” and that
he was “aware that there are significant penalties for submitting false information,
including the possibility of fine and imprisonment for knowing violations” (Filing No. 618. See also 40 C.F.R. § 122.22), the Court did not commit a manifest error when it
found that Stabl failed to meet its “heavy burden” of “present[ing] direct evidence of
reporting inaccuracies” in its own or the City of Lexington’s DMRs. See Yates Indus.,
757 F. Supp. at 447. Therefore, Stabl’s Motion to Reconsider will be denied to the
extent Stabl requests reconsideration of the Court’s Order on grounds that it erred when
ruling on the admissibility of Stabl’s and the City of Lexington’s DMRs.
III. Klingenstein’s Declarations
With respect to Klingenstein’s declarations, Stabl reasserts arguments made
when opposing the Plaintiffs’ Summary Judgment Motion and when supporting its
Motion to Strike and Supplement to Motion to Strike.

Having considered Stabl’s

arguments, for the reasons already stated in the Court’s Order, Stabl has not
demonstrated that reconsideration is appropriate. The Court notes that Klingenstein’s
opinions relating to Stabl’s liability are not necessary to establish Stabl’s liability in this
case.

See CPS Chem. Co., 779 F. Supp. at 443.

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Therefore, Stabl’s Motion to

Reconsider will be denied to the extent Stabl contends the Court should reconsider its
rulings on the admissibility of Klingenstein’s Initial and Supplemental Declaration.
CONCLUSION
Stabl has failed to demonstrate that reconsideration of the Court’s Order is
appropriate. Accordingly,
IT IS ORDERED that the Motion to Reconsider, Modify, Reverse, and Amend
(Filing No. 101) filed by Defendant Stabl, Inc., is denied.

Dated this 16th day of July, 2013.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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