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Gulf Restoration Network v. Oscar Renda Contracting, Inc.

United States District Court, S.D. Mississippi, Southern Division

December 13, 2018




         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.)


         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 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 ...

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