U.S. v. Smithfield Foods, Inc.

• Decision Date: 16 July 1997
• Docket Number: Action No. 2:96cv1204.
• Parties: UNITED STATES of America, Plaintiff, v. SMITHFIELD FOODS, INC., Smithfield Packing Company, Inc., and Gwaltney of Smithfield, Ltd., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

969 F.Supp. 975

UNITED STATES of America, Plaintiff, v. SMITHFIELD FOODS, INC., Smithfield Packing Company, Inc., and Gwaltney of Smithfield, Ltd., Defendants.

Action No. 2:96cv1204.

United States District Court, E.D. Virginia, Norfolk Division.

July 16, 1997.

COPYRIGHT MATERIAL OMITTED

Susan Lynn Watt, Asst. U.S. Atty., Norfolk, VA, Lois J. Schiffer, U.S. Dept. of Justice, Washington, DC, Yvette C. Roundtree, Asst. Regional Counsel, U.S. Environmental Protection Agency, Office of Regional Counsel, Philadelphia, PA, Nadine Steinberg, U.S. Environmental Protection Agency, Washington, DC, Sarah D. Himmelhoch, Richard Hong, U.S. Dept. of JusticeÉnvironmental, Enforcement Section, Washington, DC, for Plaintiff.

Anthony F. Troy, Mays & Valentine, Richmond, VA, Patrick M. Raher, James T. Banks, John G. Roberts, Jr., Patrick D. Traylor, Hogan & Hartson, L.L.P., Washington, DC, for Defendants.

OPINION

REBECCA BEACH SMITH, District Judge.

This matter is before the court on defendants' Motion for Reconsideration and Clarification of this Court's May 30, 1997 Opinion and Order Granting the United States' Motion for Partial Summary Judgment, filed June 13, 1997, and defendants' Motion for Reconsideration of this Court's June 20, 1997 Order Amending the Order on Initial Pre-trial Conference, filed June 25, 1997. The government filed a response to the first motion for reconsideration on June 24, 1997, and a response to the second motion for reconsideration on July 2, 1997. Defendants replied late to the government's response to defendants' first motion for reconsideration on June 30, 1997, and filed a Motion for Enlargement of Time. Since the United States will not be prejudiced if defendants are granted such an extension, and defendants have shown good cause, the court GRANTS defendants' Motion for Enlargement of Time, and will consider their reply.

I. Motion for Reconsideration and Clarification of the Court's May 30, 1997 Opinion

A. Motion for Reconsideration

When considering a motion for reconsideration, the court should not reevaluate the basis upon which it made a prior ruling, if the moving party merely seeks to reargue a previous claim. Glenn v. Inland Container Corp., 1992 WL 521517, at *1 (E.D.Va. May 13, 1992), aff'd, 991 F.2d 789 (4th Cir.1993). It is only appropriate for the court to review a previous decision where, for example, it

has patently misunderstood a party, or has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning but of apprehension. A further basis for a motion to reconsider would be a controlling or significant change in the law or facts since the submission of the issue to the Court. Such problems rarely arise and the motion to reconsider should be equally rare.

Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D.Va.1983) (emphasis added) (quoted in Glenn, 1992 WL 521517, at *1).

Defendants seek to convince this court to reconsider its May 30, 1997 decision by presenting new evidence on factual issues that were not dispositive, and by rearguing the facts and law originally argued in the parties' briefs and at the hearing held on April 14, 1997. The relevant facts and law were fully discussed in the court's May 30, 1997 Opinion, and there is no reason to repeat that factual or legal analysis in full here. However, the court will address some of defendants' arguments and mischaracterizations of the court's holding, the law, and the evidence, set forth in their motion for reconsideration of the court's May 30, 1997 Opinion.¹

Defendants contend that the court should not have granted summary judgment when discovery was ongoing, since defendants complied with Federal Rule of Civil Procedure 56(f) by identifying specific reasons they could not respond to several of the United States' arguments without discovery. Federal Rule of Civil Procedure 56(f) provides:

Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

To oppose summary judgment under Rule 56(f), the party's Rule 56(f) affidavit must contain "(1) the information sought and how it is to be obtained; (2) how a genuine issue of material fact will be raised by that information; (3) what efforts the affiant has made to obtain the information; and (4) why those efforts were unsuccessful." Sage Realty Corp. v. Insurance Co. of N. Am., 34 F.3d 124, 128 (2nd Cir.1994). "If the additional discovery will not likely generate evidence germane to the summary judgment motion, the district court may, in its discretion, proceed to rule on the motion without further ado." International Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1267 (5th Cir.1991), cert. denied, 502 U.S. 1059, 112 S.Ct. 936, 117 L.Ed.2d 107 (1992). "[T]he court need only concern itself with contradictions of salient facts; factual disputes over issues not germane to the claim are simply irrelevant because they are not outcome determinative. The court may grant a motion, immaterial factual disputes notwithstanding." Id. at 1264 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986)).

In their Rule 56 Affidavit, which was attached to the end of their memorandum in opposition to summary judgment, defendants identified three areas for which "[t]here exist facts yet to be discovered and established:" (1) the intent of the Commonwealth of Virginia in negotiating, drafting, interpreting, and enforcing the consent orders, draft permits, and permits; (2) the extent to which the EPA was aware of, reviewed, and approved of the Commonwealth's actions regarding defendants; and (3) the diligence with which the Commonwealth carried out its regulatory, enforcement, and other actions with regard to defendants. Defs.' Rule 56 Aff.

This additional discovery identified by defendants was not dispositive to the court's decision granting the United States partial summary judgment. Thus, it was within the court's discretion to proceed to rule on the summary judgment motion, notwithstanding defendants' Rule 56(f) Affidavit, because that Affidavit did not raise a genuine issue of material fact.² For the following reasons, defendants have not established that the court abused its discretion when it ruled on the United States' motion for partial summary judgment, nor have they provided adequate grounds for the court to reconsider its decision. First, in the court's May 30, 1997 Opinion, the court held that the issue of whether the Commonwealth intended to exempt defendants from the phosphorus limitation and deadline was not dispositive, as the EPA was not bound by the Board's Special Orders and letters. See May 30, 1997 Opinion Part II.B.2. & 775 n. 4. Thus, any new evidence on this issue is irrelevant. Second, the court held that defendants never alleged or established there was evidence the EPA expressly reviewed or approved of the Commonwealth's alleged agreement with defendants, and thus the EPA was not bound by that agreement. See id. Part II.B.2.³ The court further held that the EPA's awareness of the Commonwealth's agreement with defendants, along with its silence or inaction, did not constitute "affirmative misconduct" required for estoppel against the United States. See id. Part II.C. Third, the court found that the Commonwealth's enforcement scheme was not comparable to Section 309(g) of the Clean Water Act ("Act"), 33 U.S.C. § 1319(g), and thus the court explained it was unnecessary for the court to decide whether the Commonwealth was diligent under Section 309(g)(6)(A) of the Act, 33 U.S.C. § 1319(g)(6)(A). See id. Part II.D.

1. Commonwealth's intent not dispositive

With regard to the Commonwealth's intent, defendants contend they have uncovered "new evidence" during discovery which establishes that the Commonwealth intended to exempt defendants from compliance with the phosphorus limitation and deadline contained in defendants' 1992 Permit, if defendants agreed to connect to the Hampton Roads Sanitation District ("HRSD") system. Although defendants claim this new evidence "conclusively establishes" that the court's May 30, 1997 Opinion was incorrect,⁴ the court noted in the Opinion that the issue of whether the Commonwealth intended to provide such an exemption was not dispositive, as the court found that the EPA was not bound by the Board's Special Orders. See May 30, 1997 Opinion Part II.B.2. & 775 n. 4. Since this issue of the Commonwealth's intent was not relevant with regard to the court's decision to grant summary judgment, the court was not required to delay its ruling to allow additional discovery on this issue, and the discovery of this "new evidence" of the Commonwealth's intent is not a valid basis for this motion for reconsideration.⁵

2. Extent to which EPA was aware of, reviewed, and approved of the Commonwealth's actions

a. Estoppel defense rejected

With regard to their estoppel defense, defendants contend in their motion for reconsideration that the EPA engaged in affirmative misconduct by reviewing, approving, and providing funding for the HRSD treatment plant upgrade and sewer extension construction when it was aware of the contents of the Board's Special Orders and letters. Defs.' Br. Recons. at 27.⁶ The significance of this alleged conduct of the EPA was previously addressed in the court's May 30, 1997 Opinion, which rejected defendants' argument that such conduct by the EPA "incorporated" the Special Orders and letters into the Permit or bound the EPA. See May 30, 1997 Opinion Part II.B.2. The court held that even if the EPA stated that the HRSD-Smithfield connection was a "cost...