Black Warrior River-Keeper, Inc. v. Drummond Co.

579 F.Supp.3d 1310

BLACK WARRIOR RIVER-KEEPER, INC., Plaintiff,

v.DRUMMOND COMPANY, INC., Defendant.

Civil Action Number 2:16-CV-01443-AKK

United States District Court, N.D. Alabama, Southern Division.

Signed January 12, 2022

Barry A. Brock, Christina Andreen Tidwell, Southern Environmental Law Center, Eva L. Dillard, Black Warrior Riverkeeper, Inc., Birmingham, AL, Robert Hutton Brown, Pro Hac Vice, Southern Environmental Law Center, Atlanta, GA, James M. Hecker, Public Justice, Washington, DC, for Plaintiff.

Richard E. Davis, William Anthony Davis, III, Alfred H. Perkins, Jr., H. Thomas Wells, III, Starnes Davis Florie LLP, Birmingham, AL, for Defendant.

MEMORANDUM OPINION AND ORDER

ABDUL K. KALLON, UNITED STATES DISTRICT JUDGE

Pending before the court is Black Warrior River-Keeper's renewed motion for summary judgment on its groundwater CWA claims in light of the Supreme Court's decision in Cty. of Maui v. Hawai'i Wildlife Fund , ––– U.S. ––––, 140 S. Ct. 1462, 206 L.Ed.2d 640 (2020). See docs. 106; 111. Drummond Company opposes the motion, doc. 112, and BWR has filed a reply, doc. 114. Having carefully examined the briefing and supporting materials in the record, the court finds that the motion is due to be granted.

I.

Under the Federal Rules of Civil Procedure, the court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The movant bears the initial burden of proving the absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Cynergy, LLC v. First Am. Title Ins. Co. , 706 F.3d 1321, 1326 (11th Cir. 2013). "Once the movant adequately supports its motion, the burden shifts to the nonmoving party to show that specific facts exist that raise a genuine issue for trial." Cynergy , 706 F.3d at 1326 (quoting Dietz v. Smithkline Beecham Corp. , 598 F.3d 812, 815 (11th Cir. 2010) ).

A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Hinson v. Bias , 927 F.3d 1103, 1115 (11th Cir. 2019). A party asserting that a fact is genuinely disputed must support the assertion either by "citing to particular parts of materials in the record," including depositions, documents, or affidavits, or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." FED. R. CIV. P. 56(c). A "mere scintilla of evidence" will not create a genuine issue of material fact. Hinson , 927 F.3d at 1115 (quoting Anderson , 477 U.S. at 252, 106 S.Ct. 2505 ).

At summary judgment, the court must construe the evidence and all factual inferences arising from it in a light most favorable to the nonmovant, and the court thus resolves "all reasonable doubts about the facts" in favor of the nonmovant. Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins. Co. , 483 F.3d 1265, 1268 (11th Cir. 2007). Accordingly, at summary judgment, the court must not weigh the evidence or make credibility determinations. Sears v. Roberts , 922 F.3d 1199, 1205 (11th Cir. 2019) ; Feliciano v. City of Miami Beach , 707 F.3d 1244, 1252 (11th Cir. 2013). However, "mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion." Ellis v. England , 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald Mountain Park, Ltd. v. Oliver , 863 F.2d 1560, 1563 (11th Cir. 1989) ).

II.

In 2016, BWR, an Alabama nonprofit dedicated to the protection of the Black Warrior River, filed this lawsuit against Drummond under § 505 of the Clean Water Act. Doc. 1 at 1. BWR asserts that Drummond has engaged in "ongoing and continuous unpermitted discharges of acid mine drainage (‘AMD’) and/or other pollutants into the Locust Fork of the Black Warrior River and a tributary of the Locust Fork." Doc. 24 at 1. These pollutants apparently flow from the Maxine Mine site ("the Site"), an abandoned underground mine formerly operated by Drummond. Id. at 2. BWR asserts that AMD discharges occur continuously from "an enormous waste pile,¹ located on Drummond's property, on a ridge above the Locust Fork, via surface and groundwater connected to surface waters." Id. BWR claims that the discharges flow both into the tributary, which in turn leads to the Locust Fork, and also directly into the Locust Fork. Id. At issue in the instant motion, Drummond apparently permits "seeps of pollution to escape from groundwater and the underground mine works" and to enter the Locust Fork. Id.²

In August 2018, Drummond moved for summary judgment, asserting a variety of defenses that included limitations, laches, compliance and release, and the doctrines of "grandfathering" and/or reliance. See doc. 48. BWR also moved for partial summary judgment as to Drummond's liability under the CWA and the RCRA. See doc. 52. After these cross-motions became ripe for review, but before the court ruled on them, Drummond filed a motion to stay pending the Supreme Court's decision in Cty. of Maui v. Hawai'i Wildlife Fund , ––– U.S. ––––, 140 S. Ct. 1462, 206 L.Ed.2d 640 (2020). See doc. 82 at 1–2. In support, Drummond stated that the Maui decision would resolve "a key issue" in this case: whether the CWA requires a permit when pollutants originate from a point source but are conveyed to navigable waters by groundwater. Id.

In May 2019, the court denied Drummond's motion for summary judgment in its entirety and granted BWR's partial motion only as to the CWA claim that Drummond was discharging AMD "from the refuse pile, ditches, channels, gullies, basins, and dams at the site into Locust Fork." Doc. 93 at 66. Regarding the groundwater CWA claims, the court noted that "whether groundwater seeps constitute point sources or are otherwise subject to regulation under the CWA" remained an open question because the Supreme Court had yet to rule on the issue. See id. Thus, the court denied BWR's partial motion for summary judgment "in all other respects" and granted Drummond's motion for a stay, doc. 82, pending the ruling in Maui . Doc. 93 at 66.

The Supreme Court decided Maui in April 2020, and the parties jointly moved to lift the stay thereafter. See doc. 98. After lifting the stay, the court ordered supplemental briefing on the application of Maui. See docs. 99; 105. BWR invited the court to treat its briefing as a renewed motion for summary judgment on its groundwater CWA claims. See doc. 106 at 1–2. The court accepted this invitation and ordered the parties to brief the motion. Doc. 111. BWR's renewed motion for summary judgment on its groundwater CWA claims is now ripe for review.

III.

The court begins with the relevant statutory framework, as updated in Maui . To establish a CWA violation, a plaintiff must show (1) a discharge; (2) of a pollutant; (3) into waters of the United States; (4) from a point source; (5) without a National Pollutant Discharge Elimination System permit. Parker v. Scrap Metal Processors, Inc. , 386 F.3d 993, 1008 (11th Cir. 2004) ; Maui , 140 S. Ct. at 1468. Relevant here is the meaning of "from a point source." The CWA defines "point source" as "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well ... from which pollutants are or may be discharged." 33 U.S.C. § 1362(14). Prior to Maui , the courts of appeals had split on whether the CWA required a permit when pollutants originate from a point source but reach navigable waters via groundwater, a nonpoint source.³ See 140 S. Ct. at 1468.

A.

In Maui , the Supreme Court held that the CWA "require[s] a permit if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters." Id. In so holding, the Court rejected Maui County's "bright-line" argument that the CWA's permitting requirement did not apply to groundwater. See id. at 1470. The Court also rejected the environmental groups’ view that the CWA required permitting where pollution was " ‘fairly traceable’ to a point source even if it traveled long and far (through groundwater) before it reached navigable waters." See id. Instead, the Court struck a middle ground, recognizing "Congress’ basic aim to provide federal regulation of identifiable sources of pollutants entering navigable waters without undermining the States’ longstanding regulatory authority over land and groundwater." Id. at 1476.

The Court provided a non-exhaustive list of seven factors for courts to consider when determining whether there exists, via groundwater, "the functional equivalent of a direct discharge" of pollutants from a point source to navigable waters. Id. Acknowledging that "time and distance will be the most important factors in most cases," the Court provided "factors that may prove relevant":

(1) transit time, (2) distance traveled, (3) the nature of the material through which the pollutant travels, (4) the extent to which the pollutant is diluted or chemically changed as it travels, (5) the amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point source, (6) the manner by or area in which the pollutant enters the navigable waters, (7) the degree to which the pollution (at that point) has maintained its specific identity.

Id.

B.

On remand, the District of Hawaii applied this "functional equivalent" test and found that Maui County's wastewater constituted the functional equivalent of a direct discharge of pollution into the Pacific Ocean, mandating an NPDES permit. Hawai'i Wildlife Fund v. Cty. of Maui , 550 F.Supp.3d 871, 873 (D. Haw. 2021). Though Maui County did not discharge...