United States v. Stabl, Inc., CASE NO. 8:11CV274

Decision Date21 May 2013
Docket NumberCASE NO. 8:11CV274
PartiesTHE UNITED STATES OF AMERICA, and THE STATE OF NEBRASKA, Plaintiffs, v. STABL, INC. (f/k/a Nebraska By-Products, Inc.), Defendant.
CourtU.S. District Court — District of Nebraska

This matter is before the Court on the Plaintiffs' Motion for Partial Summary Judgment on the Issue of Liability ("Summary Judgment Motion") (Filing No. 59), as well as the Motion to Strike (the "Original Motion to Strike") (Filing No. 73) and Supplemental Motion to Strike (Filing No. 87) filed by Defendant Stabl, Inc. ("Stabl"), seeking to strike (a) the Plaintiffs' Motion for Summary Judgment; (b) the Plaintiffs' Reply Brief Supporting Their Summary Judgment Motion ("Reply Brief") (Filing No. 68); and certain exhibits the Plaintiffs have offered to support their Reply Brief (see Filing No. Filing Nos. 69 & 70). Although, in its Original Motion to Strike, Stabl sought to strike all of the exhibits the Plaintiffs offered in support of their Reply Brief, in the Supplemental Motion to Strike, Stabl only seeks to strike Exhibit Nos. 24, 26, 30, 31, 32, 36, and 37. For the reasons stated below, the Original Motion to Strike will be denied as moot, the Supplemental Motion to Strike will be granted in part, and the Summary Judgment Motion will be granted in part.


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 NebraskaEnvironmental 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, (2) discharging pollutants in excess of the limits permitted by its pretreatment permit issued by the State of Nebraska, (3) failing to sample for pollutants it was required to sample pursuant to its pretreatment permit, and (4) failing properly to abandon three wastewater lagoons. (Compl., Filing No. 1.)

On January 31, 2013, the Plaintiffs filed their Summary Judgment Motion, along with a supporting brief and index of evidence (Filing Nos. 60, 61.) The Plaintiffs' support brief contains a statement of material facts with pinpoint references to exhibits in the record that the Plaintiffs contend support their statement of material facts. On March 1, 2013, Stabl filed a brief and index of evidence in opposition to the Plaintiffs' Summary Judgment Motion. (Filing Nos. 64, 65.) Stabl addressed the Plaintiffs' statement of facts, contending only that that the Plaintiffs' exhibits either are inadmissible or do not support the factual allegations for which they were cited. Stabl's opposition brief also presents in four numbered paragraphs a separate statement of facts.

On March 19, 2013, the Plaintiffs filed their Reply Brief and an index of evidence in support of their Summary Judgment Motion. (Filing Nos. 68, 69, 70.) The Plaintiffs' reply index indicated that the Plaintiffs were submitting as an attachment the "Declaration of Katherine A. Loyd, with attached Exhibits 24-37," although the Loyd declaration was not actually attached to the reply index. (Filing No. 69.) In the Reply Brief, the Plaintiffs responded to Stabl's separate statement of facts, and addressed the evidentiary objections presented in Stabl's opposition brief.

On March 26, 2013, Stabl filed its Original Motion to Strike, asserting that the Plaintiffs' Summary Judgment Motion, the Reply Brief, and the exhibits offered in support of the Reply Brief should be stricken because the Plaintiffs failed to file a declaration to provide the foundation for the exhibits contained in the reply index. Stabl also sought to strike certain other exhibits, contending that they contained previously undisclosed expert opinions.

On March 27, 2013, the Plaintiffs filed the omitted declaration (Filing No. 76-1) along with an explanation indicating that the omission was inadvertent and that steps were taken to correct the error as soon as it was discovered. (See Filing No. 76.) On April 9, 2013, the Plaintiffs filed a brief in opposition to Stabl's Original Motion to Strike. (Filing No. 85.) On April 10, 2013, Stabl filed the Supplemental Motion to Strike, still seeking to strike the Plaintiffs' Reply Brief and Summary Judgment Motion in their entirety, but now in light of the Plaintiffs having corrected its error in failing to file Loyd's declaration, only seeking to strike certain exhibits the Plaintiffs offered in support of their Reply Brief: exhibits 24, 26, 30, 31, 32, 36, and 37. In light of Stabl's Supplemental Motion to Strike, Stabl's Original Motion to Strike will be denied as moot.


Instead of pointing to evidence to rebut the Plaintiffs' evidence and to show material questions of fact exist, Stabl opposes the Summary Judgment Motion by attacking the evidence to which the Plaintiffs have pointed to support the motion, both in its brief in opposition to the Plaintiffs' Summary Judgment Motion and in its Supplemental Motion to Strike. The Court will address Stabl's evidentiary objections before turning to the Summary Judgment Motion and the parties' statements of fact.

I. Objections in Stabl's Opposition to the Summary Judgment Motion
A. The Compliance Plan, Ex. 3 (Filing No. 61-3)

Stabl contends that exhibit 3 (Filing No. 61-3), titled "Compliance Plan for Nebraska By-Products, Inc." (the "Compliance Plan"), is inadmissible hearsay because, although it was submitted to the United States Environmental Protection Agency ("EPA") on Stabl's behalf, it was prepared by a consultant who was not an officer, director, or owner of Stabl. (Def.'s Br., Filing No. 64 at 2-3.) The Plaintiffs, however, have pointed to evidence indicating that the consultant prepared the Compliance Plan for Stabl as part of a work proposal to which Stabl agreed (Dep. of Thomas T. Satchell, Filing No. 70-5, 29:19-21, 30:11-14, 31:20-32:1); that Stabl's plant manager, Jason Fagot, informed the EPA that Stabl retained the consultant to prepare the Compliance Plan (Filing No. 70-10); and that the consultant reviewed the Compliance Plan with Fagot before submitting it to the EPA (Filing No. 70-5 at 37:18-19, 82:6-20; Filing No. 70-11); and none of the evidence to which the parties have pointed indicates Stabl had any objections to the Compliance Plan or to submitting it to the EPA to satisfy its obligations under the CWA. Thus, the Compliance Plan is not hearsay, see Fed. R. Evid. 801(d)(2), and Stabl's hearsay objection will be overruled.

B. The First Declaration of the Plaintiffs' Expert, Ex. 5 (Filing No. 61-5)

Stabl contends certain statements made in the first declaration of Plaintiffs' expert, Mark J. Klingenstein, P.E. (Filing No. 61-5), are inadmissible because Klingenstein is not qualified to be an expert with respect to wastewater collection and treatment, and because certain statements were not designated as separate "opinions" in his report. Stabl also argues that "[t]o the extent his statements are simplereiterations of other documents, they are inadmissible hearsay," and that Klingenstein's "'summary' chart is totally unsubstantiated, and the same has no foundational basis or reliability whatsoever." (Filing No. 64 at 3 ¶ 10, 5-9 ¶ 15 (citing Fed. R. Evid. 1006).)

The Plaintiffs contend that Klingenstein is qualified to speak as an expert on wastewater issues because he has a B.S. in civil engineering, a master of engineering in civil engineering, both requiring him to attend numerous classes in chemistry, biology, water/wastewater treatment processes; he is a licensed professional engineer in three states; and for at least thirty years, he has focused much of his professional career on municipal wastewater treatment. (See Supp. Decl. of Mark J. Klingenstein, P.E., Filing No. 70-6 at ¶¶ 2-12.)1 The Plaintiffs also argue Klingenstein merely summarizes discharge monitoring reports ("DMRs"), which are admissible to prove Stabl's liability and have been made part of the record (see Filing Nos. 61-8, 69-3 through 69-8, 70-1, 70-2), making the "summary charts" unnecessary for to prove Stabl's liability.

Having reviewed the record and considered the parties arguments, the Court finds, pursuant to Fed. R. Evid. 702, Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), that Klingenstein is qualified as an expert with respect to wastewater treatment and collection issues. Stabl's objections to Klingenstein's qualifications will be overruled. Furthermore the DMRs have been made a part of the record and, as will be explained below, the DMRs are admissible to prove Stabl's liability, and Stabl does not dispute that the tablesaccurately summarize the information reflected in the DMRs. Therefore, Stabl's objections to Klingenstein's report will be overruled.

C. Preliminary Engineering Report, Ex. 6 (Filing No. 61-6)

Stabl contends that the "Preliminary Engineering Report" (the "Report") (Filing No. 61-6) "is completely hearsay; it is not a sworn statement; it [is] a document not verified by its authors and indeed it[s] authors have not been designated as experts by the Plaintiffs or even identified; and it is a document with no foundational or reliable support whatsoever." (Filing No. 64 at CM/ECF p. 5 ¶ 14.) The Plaintiffs argue that the Report is admissible under Fed. R. Evid. 803(6).2

The Plaintiffs have pointed to evidence indicating that the EPA and the Nebraska Department of Environmental Quality ("NDEQ") received the Report, which was kept in the EPA's file for the Facility as part of the EPA's regularly conducted activities (Decl. of Paul Marshall, P.E., Filing No. 70-7 ¶¶ 1, 6); and that Lexington hired the Report's authors to prepare the Report for a consulting project and received the Report from the authors at or near the time of the project, maintained the Report in its files in the regularcourse of its business, and relied...

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