* Pursuant to Local Rule 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 95-20335

____________________

FRIENDS OF THE EARTH, INC.,

Plaintiff-Appellant,

versus

PHIBRO ENERGY, U.S.A., ET AL.,

Defendant-Appellee.

_______________________________________________________________

Appeal from the United States District Court for the

Southern District of Texas

(CA-H-94-2082)

_______________________________________________________________ April 18, 1996

Before JOLLY, DAVIS, and EMILIO M. GARZA, Circuit Judges.

E. GRADY JOLLY, Circuit Judge: *

The plaintiff, Friends of the Earth, Inc. ("Friends"), appeals

th e district court's summary judgment for the defendant, Phibro

Energy USA, Inc. ("Phibro"), in this citizen suit under section 505

of the Federal Water Pollution Control Act (the "Act"), 33 U.S.C.

§ 1365. The district court granted summary judgment on the basis

of a consent agreem ent between Phibro and the Environmental

Protection Agency (the "EPA " ) stemming from an administrative

penalty action commenced against Phibro under section 309(g) of the

Act, 33 U.S.C. § 1319(g), almost one month after Friends filed this1 The citizen suit provision of the Act requires that a citizen

pro vide notice of the alleged violation to the EPA, the state in

which the alleged violation occurred, and the alleged violator, at

least sixty days before commencing suit. 33 U.S.C. § 1365(b)(1)(A)

(1994).

-2- citizen suit. Concluding that the district court abused its

discretion by failing to afford Friends additional discovery before

summary judgment, we reverse and remand for additional proceedings.

I

Phibro owns and operates a petroleum refinery in Houston,

Texas. A National Pollution Discharge Elimination System ("NPDES")

permit issued to Phibro by the EPA authorized Phibro to discharge

from its refinery into the Houston Ship Channel waste water and

storm water that contained limite d quantities of certain

pollutants. Phibro's discharge monitoring reports ("DMRs") and

noncompliance reports, filed with the EPA pursuant to section 308

of the Act, 33 U.S.C. § 1318, for the period from January 1989

through March 1994 showed over seventy discharge violations, i.e.,

discharges containing pollutants in excess of Phibro's NPDES permit

levels.

Friends sent a letter on April 19, 1994, to the EPA, the Texas

Natural Resource Conservation Commission, and Phibro giving notice

of the violations and its intent to file a citizen suit. 1 Friends

filed a citizen suit under § 1365 on June 20 in district court in

the Southern District of Texas against Phibro for repeated

violations of the terms and conditions of its NPDES permit. Phibro2 T he district court's order did not address the motion to

dismiss.

-3- violated its NPDES permit again two days after Friends filed its

complaint. The EPA commenced an administrative penalty action

under § 1319(g) against Phibro for many of the same violations

included in the Friend's suit on July 18.

On September 6, Phibro moved to dismiss Friends ' complaint

under rule 12(b)(6) of the Federal Rules of Civil Procedure, or,

alternatively , for a stay pending the completion of the EPA's

administra tive proceeding against Phibro. Friends responded to

Phibro's motion by contending that it was actually a motion for

summary judgment because Phibro relied on evidence outside of the

pleadings to support its motion. Friends argued that it was

entitled to a "reasonable opportunity to present all materi als

pertinent to such a motion by Rule 56." Friends also filed an

affidavit pursuant to rule 56(f) of the Federal Rules of Civil

Procedure declaring that it needed to conduct discovery in order to

respond adequately to Phibro's motion. On October 28, the district

court denied Phibro's motion for a stay without a written opinion. 2

On October 4, Friends submitted formal discovery requests to

Phibro. Phibro responded on November 23, but objected to a large

portion of Fr iends' discovery attempts and failed to provide

responsive information and documents in numerous areas. On

January 6, 1995, Friends filed a motion to compel Phibro to respond

to its discovery requests. Friends filed an extensive brief in-4-

sup port of its motion detailing its need for a motion to compel

discovery. Phibro responded on February 3 with a motion to stay

discovery.

On December 20, 1994, the EPA settled the administrative

proceeding against Phibro by issuing a formal consent agreement and

order. The EPA stated in the consent agreement that "the cited

violations were not the result of ongoing conditions for which

injunctive relief is necessary." Relying on the EPA administrative

proceed ing and this statement in the consent agreement, Phibro

moved for summary judgment on February 3, 1995. Friends did not

file a formal rule 56(f) affidavit with its response to Phibro's

summary judgment motion. In its brief in response to Phibro's

summary judgment motion, however, Friends detailed its attempts at

discovery, in cluding the rule 56(f) affidavit filed in September

1994, its initial discovery requests in October 1 994, Phibro's

response in November 1994, and its outstanding motion to compel.

The district court granted summary judgment to Phibro on March 30,

1995, without ruling on Friends' motion to compel.

Specifically citing the statement contained in the consent

agreement, th at "the cited violations were not the result of

ongoing conditions for which injunctive relief is necessary," the

district court stated that "[a] review of the EPA's Consent Order

and the record evidence ill ustrates that Phibro does not have

ongoing conditions that constitute a violation." The district

court offered no further explanation of the record evidence3 We decided Hamker before the Water Quality Act of 1987 added

subsection (g) to § 1319. Subsection (g) allows the EPA to impose

administrative penalties on violators of the Act without commencing

a c ivil action in district court. 33 U.S.C. § 1319(g) (1994).

Section 1319( g)(6) addresses the effect of an administrative

penalty action on citizen suits under § 1365. If the EPA has

commenced and is "diligently prosecuting" an administrative action,

or if the EPA has "issued a final order not subject to further

judicial review and the violator has paid the assessed penalty,"

the same violations cannot be the subject of a civil penalty action

under § 1365. 33 U.S.C. § 1319(g)(6)(A) (1994). If the civil

penalty action was file d before the commencement of the

administrative action, however, the administrative action, or its

resolution, does not bar the earlier-fi led civil penalty action.

33 U.S.C. § 1319(g)(6)(B) (1994).

-5- detailing the reasons for its finding. Relying on the Supreme

Court's decis ion in G waltney of Smithfield v. Chesapeake Bay

Foundation, Inc. , 484 U.S. 49, 108 S.Ct. 376 (1987), the district

court thus ruled that Friends' "claim s fail as they are for past

violations."

The district court also relied on our decision in Hamker v.

Diamond Shamrock Chemical Co.

, 756 F.2d 392 (5th Cir. 1985), to

dispose of the few remaining violations alleged by Friends that did

not appear in the EPA's c omplaint. H amker declared that the Act

"does not permit the citizen to duplicate the Administrator's

powers." I d. at 395. 3 Comparing the two complaints, the court

found that the claims were duplicative. Without further

elaboration, the court granted summ ary judgment because "those

claims asserted in [Friends'] complaint, which are not in the EPA's

complaint, were either considered by the EPA and determined to be

insignificant or, alternatively, not worthy of consideration."4 Although an inquiry in to the basis for subject matter

jurisdiction normally constitutes the first step of the appellate

review pro cess, when the record is insufficiently developed

because a plaintiff has been denied the opportunity to develop

facts "in a manner that is adequate in the context of the disputed

issues and evidence," Williamson v. Tucker

, 645 F.2d 404, 414 (5th

Cir.), cert. denied

, 454 U.S. 897, 102 S.Ct. 396 (1981), we will

remand for further development of the record.

-6- II

We need not reach the substantive issues raised by the parties

in their briefs and at oral argument, including those relating to

the district court's jurisdiction, because we fi nd that the

district court abused its discretion by failing to grant a

continuance of the summary judgment proceeding to allow Friends to

conduct additional discovery. 4

A

Rule 56 of the Federal Rules of Civil Procedure expressly

prohibits the non-mov ing party from "rest[ing] upon mere

allegations or denials of the adv erse party's pleading" when the

moving party moves for summary judgment and supports its motion as

provided by rule 56. Fed.R.Civ.P. 56(e). If the non-moving party

fails to answer by counter affidavits or otherwise, demonstrating

specific facts showing there exists a genuine issue for trial, the

court must, if otherw ise appropriate, enter summary judgment for

the moving party. Fed.R.Civ.P. 56(e). Rule 56(f) provides a

method for the non-moving party to avoid the mandate of rule 56(e):

Should it appear from the affidavits of a party opposing

the motion that the party cannot for reasons stated

present by affidavit facts esse n tial to justify the-7-

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 just.

F ed.R.Civ.P. 56(f). "Such `continuance of a motion for summary

judgment for purposes of discovery should be granted almost as a

matter of course' unless `the non-moving party has not diligently

pursued discovery of th e evidence.'" W ichita Falls Office

Associates v. Banc One Corp.

, 978 F.2d 915, 919 n.4 (5th Cir. 1992)

(quoting 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 (1992)), cert. denied sub nom.

, Bank One, Texas, N.A. v.

Wichita Falls Office Associates

, 508 U.S. 910, 113 S.Ct. 2340

(1993). The district court's decision to deny additional discovery

before summary judgment is reviewed for abuse of discretion. Id.

at 918.

Friends was entitled to receive a continuance for additional

discovery if it:

(i) requested extended discovery prior to the court's

ruling on summary judgment; (ii) placed the district

court on notice that further discovery pertaining to the

summary judgment motion was being sought; and (iii)

demonstrated to the district court with reasonable

specificity how the requested discovery pertained to the

pending motion.

Enplanar, Inc. v. Marsh , 11 F.3d 1284, 1291 (5th Cir.) (citations

omitted), cert. denied sub nom.

, Enplanar, Inc. v. West , ___ U.S.

___ , 115 S.Ct. 312 (1994). As to the first two elements, we can

review a claim of i mproperly denied discovery only if the-8-

complaining party presented to the district court a rule 56(f)

affidavit or an "equivalent s tatement preferably in writing that

conveys the need for additional discovery in the areas now

complained of on appeal." I d. at 1291-92 (internal quotations and

citations omitted).

Although Fri ends did not file a formal rule 56(f) affidavit

with its response to Phibro's summary judgment motion, it made an

"equivalent statement" in writing. In its brief in response to

Phibro's summary judgment motion, Friends declared:

Moreover, plaintiff submitted an affidavit under Rule

56(f) of the Federal Rules of Civil P rocedure setting

forth the discovery plaintiff needed in order to respond

adequately as to whether defendant's violations were

actually on going. Rule 56(f) Affidavit of Robert D.

Parrish, September 23, 1994, attached as Pl. Ex. 4 to Pl.

Res. Br. Since that time, plaintiff has not had a fair

opportunity for discovery. While plaintiff submitted

requests to produce and requests for admissions on

November 23, 1994, defendant's responses were totally

i nadequate. See Plaintiff's Brief in Support of its

Motion to Compel Defendant to Respond to Discovery,

January 6, 1995, pp. 5-7. Plaintiff therefore moved to

compel. Instead of filing a response to plaintiff's

motion to compel, defendant has filed a motion for a stay

based on its motion for summary judgment.

. . . Defendant

has refused to produce documents needed to show the full

extent of defendant's violations and the underlying

causes of those violations. Thus, defendant is in effect

claiming that it is entitled to have this Court resolve

the merits of its arguments under Gwaltney that its

violations were not ongoing at the time of the complaint

without allowing plaintiff reasonable discovery as to the

relevant facts.

Friends' br ief in support of its motion to compel, cited in its

bri ef opposing summary judgment, clearly described Friends' need

for the additional dis covery. Phibro objected to any discovery-9-

request that did not involve documents that were generated on the

day of an alleged violation or generated directly in response to an

alleged violation; Friends was thus unable to determine if Phibro

had violated its permit on more occasions than it had reported on

its publicly available DMRs, whether Phibro had complied with its

monitoring and reporting requirements, or whether Phibro's remedial

efforts had been sufficient to reduce the risk of future

violations. Nevertheless, the district court did not rule on that

motion before granting Phibro summary judgment. The district court

effectively denied that motion, however, when it granted summary

judgment to Phibro. Given the district court's stated grounds for

summary judgment--that there were no ongoing conditions

constituting a violation of the A ct, that Friends' complaint

duplicated th e EPA's administrative penalty action, and that any

complaints not covered by EPA's action were unworthy of

consideration--the discovery requests covered by Friend's motion to

compel were clearly germane to the summary judgment determination.

The record also reveals Frien d's diligence in pursuing discovery

and its satisfaction of the requirements for a continuance. The

district court thus clearly abused it s discretion. S ee Wichita

,

978 F.2d a t 920 ("[W]hen a party is seeking discovery that is

germane to the pending summary judgment motion it is inequitable to

pull out the rug from under them by denying such discovery").-10- B

Even if Friends somehow failed to make a proper response to

Phibro's summary judgment motion, summary judgment must be denied

if the moving party fails to "inform[ ] the district court of the

basis for its motion, and identify[] those port ions of the

pleadings, depositions, answers to interrogatories, and admissions

on file, together with affidavits , if any, which it believes

demonstrate the absence of a genuine issue of materi al fact."

Stults v. Conoco, Inc.

, 76 F.3d 651, 655-56 (5th Cir. 1996)

(internal quotations and citation omitted). We are not convinced

that Phibro met its i nitial responsibility because the summary

judgment evidence it submitted showed that there was a genuine

issue as to a material fact. First, the EPA's "Proposal to Assess

a Class I Penalty," submitted along with Phibro's summary judgment

motion, clearly indicates that there was a post-complaint violation

of the effluent limit ation in its NPDES permit on June 22, 1994.

Second, the statement in the consent agreement upon which Phibro

re lies does not indicate that there were n o ongoing conditions.

Instead, it appears to be a legal conclusion on the part of the EPA

that ongoing conditions, if any, did not warrant injunctive relief.

The fact that injunctive relief is not warranted in the eyes of the

EPA does not mean that there are no ongoing conditions that would

satisfy the jurisdictional requirements under § 1365(a) or Friends'

ultimate burden of proving a continuous or intermittent violation

as an element of its caus e of action. S ee Gwaltney

, 484 U.S. at5 Because of the result we reach today, we find it unnecessary

to consider the effect of a duplicative adm inistrative penalty

action on an earlier-filed citi zen suit, specifically, a civil

penalty action. We note, however, that the later-filed

administrative action does bar outright the earlier-filed civil

penalty action. See supra note 3.

-11- 64-67, 108 S.Ct. at 385-86 (discussing jurisdictional

requirements), Carr v. Alta Verde Industries, Inc.

, 931 F.2d 1055,

1061-66 (1991) (discussing jurisdictional requirements and

plaintiff's ultimate burden of proof).

III

For the foregoing reasons, we REVERSE the judgment of the

district court and REMAND for further proceedings not inconsistent

with this opinion.

REVERSED and REMANDED. 5