The Cnty. Comm'n of Fayette Cnty. v. Nat'l Grid NE Holdings 2 LLC

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THE COUNTY COMMISSION OF FAYETTE COUNTY, WEST VIRGINIA, et al., Plaintiffs, v. NATIONAL GRID NE HOLDINGS 2 LLC, et al., Defendants.

Civil Action No. 2:21-cv-00307

United States District Court, S.D. West Virginia, Charleston Division

March 20, 2024

MEMORANDUM OPINION AND ORDER

THOMAS E. JOHNSTON, CHIEF JUDGE

Pending before the Court are the parties' cross-motions for summary judgment and partial summary judgment. (ECF Nos. 984 986.) For the reasons explained more fully below Plaintiff's motion for partial summary judgment is DENIED, (ECF No. 986), and Defendant National Grid's motion for summary judgment is GRANTED, (ECF No. 984).

I. BACKGROUND

The County Commission of Fayette County, West Virginia (the “County”) initiated this action on May 18, 2021. (ECF No. 1.) The County then properly filed an Amended Complaint on July 16, 2021, (ECF No. 31), and a verified Second Amended Complaint (“SAC”) on June 15, 2022, (ECF No. 499).

This matter arises out of the alleged contamination of the Johnson Fork of Loop Creek Watershed (“Subject Watershed”), which is located entirely within Fayette County, West Virginia. (See ECF No. 499 at 33, ¶ 18.) According to the SAC, from “no later than the late 1920s . . . until at least the mid-1950s,” Eastern Gas and Fuel Associates (“EGFA”)^[1]conducted “extensive coal mining operations throughout the Subject Watershed.” (Id. at 36-37, ¶ 30.) During these operations, EGFA allegedly created, operated, and maintained “at least five (5) separate, associated piles of coal mining waste,” (“CMW”) (collectively, “gob piles”^[2])^[3], within the Subject Watershed. (Id. at 37, ¶ 30.) The County claims that these gob piles were “constructed and maintained without a Liner^[4] and without any associated Leachate^[5]collection, control or monitoring system[.]” (Id. (emphasis omitted).)

Then, from the 1960s until 2003, EGFA's subsidiary, Eastern Associated Coal Corporation (“EACC”),^[6] owned and operated the same mining operations. (See id. at 41, ¶ 54; 44, ¶¶ 66-69.) Following that period, from 2003 until 2013, Pardee and Curtain Realty LLC (“Pardee”) owned and managed the surface estate within the Subject Watershed, upon which four of the five gob piles are located, and “failed or refused to take any action to abate” the gob piles. (See id. at 45-46, ¶¶ 70-74.) In 2013, Pardee conveyed its interest in the surface estate to Quercus West Virginia, LLC (“Quercus”), (id. at 45-46, ¶ 71), which also “failed or refused to take any action to abate” the gob piles. (Id. at 47, ¶ 75-77.)

According to the County, “[c]ontinuously since their original creation,” each of the five gob piles have discharged^[7]and released^[8]hazardous substances, hazardous wastes, solid waste, pollutants and contaminants, and leachate into the environment. (Id. at 39, ¶ 43.) On May 31, 2019, the County-through its expert Dr. Simonton-extracted eight samples from near the five gob piles. (ECF No. 986-1, Ex. 4.) Dr. Simonton's samples detected concentrations of contaminants, including arsenic, beryllium, cadmium, iron, manganese, and/or sulfate. (Id.)

The County alleges that the gob piles have caused and continue to cause endangerment to health and the environment. (ECF No. 499 at 85-86, ¶ 176.) The County seeks to hold past and present landowners responsible, including National Grid as a successor to EGFA. (See generally id.) As pertains to National Grid, the SAC asserts claims under the Resource Conservation and Recovery Act (“RCRA”); West Virginia Solid Waste Management Act (“WVSWMA”); the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”); Fayette County Comprehensive Public Nuisance Abatement Ordinance (“2018 Ordinance”); and West Virginia common law.^[9] (See id., at 117-128; 140-165; 172-181.) The only remaining claims against National Grid relate to the RCRA, the 2018 Ordinance, and West Virginia common law. (See ECF No. 575, pp. 13, 29, 33-34, 36.)

National Grid filed the pending Motion for Summary Judgment on May 17, 2023. (ECF No. 984.) The County filed a response on June 7, 2023. (ECF No. 989.) National Grid filed a reply on June 21, 2023. (ECF No. 991.) As such, this motion is fully briefed and ripe for adjudication.

The County filed the pending Motion for Partial Summary Judgment on May 17, 2023. (ECF No. 986.) National Grid filed a response on June 7, 2023. (ECF No. 988.) The County filed a reply on June 21, 2023. (ECF No. 993.) As such, this motion is fully briefed and ripe for adjudication.

II. LEGAL STANDARD

Rule 56 of the Federal Rules of Civil Procedure governs motions for summary judgment. In pertinent part, this rule states that a court should grant summary judgment if “there is no genuine issue as to any material fact.” Summary judgment should not be granted, however, if there are factual issues that reasonably may be resolved in favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). “Facts are ‘material' when they might affect the outcome of the case, and a ‘genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” News & Observer Publ. Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010). When evaluating these factual issues, the Court must view the evidence “in the light most favorable to the opposing party.” Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970).

“The burden is on the nonmoving party to show that there is a genuine issue of material fact for trial . . . by offering ‘sufficient proof in the form of admissible evidence' ....” Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 216 (4th Cir. 2016). “This burden may be met by use of the depositions and other discovery materials.” Barwick v. Celotex Corp., 736 F.2d 946, 958 (4th Cir. 1984). Once the moving party meets its burden, the burden shifts to the non-moving party to “make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Should a party fail to make a sufficient showing on one element of that party's case, the failure of proof “necessarily renders all other facts immaterial.” Id. at 323.

“[A] party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.” Liberty Lobby, 477 U.S. at 256. “The mere existence of a scintilla of evidence” in support of the nonmoving party is not enough to withstand summary judgment; the judge must ask whether “the jury could reasonably find for the plaintiff.” Id. at 252.

III. DISCUSSION

National Grid moves for summary judgment on Counts Two, Six, Nine, and Ten. (ECF No. 985.) The County moves for summary judgment on Counts Six and Nine. (ECF No. 987.) Cross-motions for summary judgment are reviewed separately if material facts are in dispute. Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2023). Here, the material facts underlying the County's claims as to Counts Nine and Six are undisputed-the parties merely dispute the legal significance of those facts and whether the County has met its burden as it pertains to whether there is a common law nuisance or a nuisance per se.

A. Count II - RCRA Claim

National Grid moves for summary judgment on Count Two of the SAC. (ECF No. 985 at 21-29.) Count Two seeks to hold National Grid, as the legal successor to the remedial liabilities of EGFA, liable under Section 7002(a)(1)(B) of the Resource Conservation and Recovery Act (“RCRA”), codified at 42 United States Code Section 6972(a)(1)(B). (ECF No. 499 at 117-128, ¶¶ 237-254.)

(1) Elements of a RCRA Claim

A citizen may bring suit pursuant to 42 United States Code Section 6972(a)(1)(B) “against any person including . . . any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.” To prevail on such a claim, a plaintiff must prove: “‘(1) that the defendant is a person, including, but not limited to, one who was or is a generator or transporter of solid or hazardous waste or one who was or is an owner or operator of a solid or hazardous waste treatment, storage, or disposal facility; (2) that the defendant has contributed or is contributing to the handling, storage, treatment, transportation, or disposal of a solid or hazardous waste; and (3) that the solid or hazardous waste may present an imminent and substantial endangerment to health or the environment.'” Parker v. Scrap Metal Processors, Inc., 386 F.3d 993, 1014 (11th Cir. 2004) (quoting Cox v. City of Dallas, 256 F.3d 281, 292 (5th Cir. 2001)).

In this case, the focus of the parties' briefing is centered around the third element. Thus, to survive National Grid's motion for summary judgment, the County needs to point to evidence demonstrating that the gob piles at Johnson Fork “may present an imminent and substantial endangerment to health or the environment.” 42 U.S.C. 6972(a)(1)(B).

“The operative word in the statute is the word ‘may.'” Parker, 386 F.3d at 1015. This is “expansive language that confers upon the courts the authority to grant affirmative equitable relief to the extent necessary to eliminate any risk posed by toxic wastes.” Parker, 386 F.3d at 1015 (internal quotations omitted). Although broad, “there is a limit to how far the tentativeness of the word m...