Black Warrior River-Keeper Inc v. Drummond Company
Filing
122
MEMORANDUM OPINION AND ORDER- In sum, BWR has established the absence of a genuine dispute regarding whether the groundwater discharges carrying AMD into the Locust Fork constitute the functional equivalent of a direct discharge of pollution under th e CWA. Because this represented the only remaining element in dispute as to BWRs groundwater CWA claims, see 93 , BWR is entitled to summary judgment on its groundwater CWA claims. BWRs renewed motion for summary judgment, 106 , is GRANTED. Signed by Judge Abdul K Kallon on 01/12/2022. (AKD)
FILED
2022 Jan-12 AM 10:20
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BLACK WARRIOR RIVERKEEPER, INC.,
Plaintiff,
v.
DRUMMOND COMPANY, INC.,
Defendant.
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Civil Action Number
2:16-CV-01443-AKK
MEMORANDUM OPINION AND ORDER
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, 140 S. Ct. 1462 (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 (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 (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).
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
2
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
1
This waste pile, also referred to as the “coal processing waste disposal area,” “rock disposal area,”
“refuse pile,” and “GOB pile,” was originally formed in the early 1950s by Alabama By-Products
Corporation, which later merged with Drummond. See doc. 93 at 9–12. As in its previous opinions
and orders, the court uses the term “refuse pile” for ease of reference.
3
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, 140 S. Ct. 1462 (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.
2
Allegedly, Drummond also dammed the tributary to construct “a system of drainage ditches and
instream sediment basins,” and sediment “has completely filled the tributary which runs through
the mine site, past the pile of mine waste to the Locust Fork.” Id. at 3. BWR also pleads claims
under the Resource Conservation and Recovery Act related to Drummond’s past and current
management of mine waste at the Site. Id. With respect to this RCRA claim, BWR asserts that
mine waste filled a former stream, caused contamination of local surface and/or groundwaters, and
threatens to cause further pollution. Id. The court previously denied BWR’s motion for summary
judgment as to these claims, which will proceed to trial. See doc. 93 at 65–66.
4
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
5
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
3
See Hawai’i Wildlife Fund v. Cty. of Maui, 886 F.3d 737, 749 (9th Cir. 2018) (finding CWA
violation where groundwater carried pollutants from wells to ocean because “pollutants [were]
fairly traceable from the point source to a navigable water”) (emphasis added); Upstate Forever
v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637, 651 (4th Cir. 2018) (requiring “direct
hydrological connection between ground water and navigable waters” to state groundwater CWA
claim) (emphasis added); Ky. Waterways All. v. Ky. Utils. Co., 905 F.3d 925, 933 (6th Cir. 2018)
(finding that CWA’s text “forecloses an argument that groundwater is a point source”).
6
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.
7
Hawai’i Wildlife Fund v. Cty. of Maui, No. 12-00198, 2021 WL 3160428, at *1 (D.
Haw. July 26, 2021). Though Maui County did not discharge polluted wastewater
directly into the ocean, it “introduc[ed] the pollutants into injection wells” at a
reclamation facility half a mile from the ocean. Id. at *1. Once Maui County placed
wastewater into these injection wells, the wastewater traveled about 200 feet
underground into a “shallow groundwater aquifer” beneath the reclamation facility
before mixing with groundwater and “flow[ing] horizontally and vertically into the
ocean through the porous aquifer.” Id. at *3.
Holding that this “indirect” introduction of pollutants functionally equaled a
direct discharge, 4 the court underscored the factors of time and distance—that is, the
time it took the wastewater to reach the ocean and the distance the wastewater had
to travel to get there. See id. at *12, *14. The court cited a study in which dye placed
in two wells reached the ocean in “as little as 84 days, with peak concentration of
4
The court explained:
The parties . . . agree that millions of gallons of treated wastewater travel from
those injection wells through groundwater, and that 100 percent of that wastewater
finds its way into the ocean, although with certain components, like nitrogen, being
reduced before the wastewater reaches the ocean. Monitors at a handful of small
locations near the shoreline have detected less than 2 percent of the wastewater
from two of the four wells. . . . While the court cannot point to the exact path of the
rest of the wastewater or map every drop of that remaining 98 percent, it is likely
that that remainder is entering the Pacific Ocean within a few miles at most of the
LWRF. That less-than-2-percent is still an enormous amount of pollutant being put
into the ocean in the functional equivalent of a direct discharge.
Id. at *1.
8
the dye occurring 9 to 10 months after placement” and an average transit time of 14
to 16 months. Id. at *12. The court noted that these wells were located “one-half
mile or less from the Pacific Ocean” and that “even with diffuse flow, the wastewater
likely travel[ed] a relatively short distance through groundwater.” Id. at *14. These
factors weighed in favor of requiring a permit. Id.
The court also highlighted that “100 percent of the wastewater” was
“discharged somewhere in the Pacific Ocean” and that the wastewater “maintain[ed]
its specific identity as polluted water,” even with less nitrogen by the time it reached
the ocean. Id. at *15. These factors also weighed in favor of requiring a permit. See
id. On the other hand, the court found that the wastewater mixed with other waters,
flowed through rocks, and possibly became diluted, which weighed against requiring
a permit. Id. The court acknowledged that “the precise manner by which all of the
wastewater enter[ed] the ocean [was] unclear” but that this “may not add much to
the other factors in the circumstances of this case” and therefore gave no additional
weight to this factor in its analysis. Id. Balancing the seven Maui factors “as well
as the additional volume factor that [the] court added,” the court granted Hawai’i
Wildlife Fund’s motion for summary judgment on its CWA claim. Id. at *18.
IV.
In this case, the parties do not contest that the Locust Fork constitutes waters
of the United States and that Drummond has not had an NPDES permit since at least
9
1993. See doc. 93 at 15 (citing docs. 50-4 at 91; 27 at ¶ 23; 53-2 at 8; 59 at 3). In
addition, the court previously determined that AMD, a pollutant, has been
discharged into the Locust Fork from point sources that include the refuse pile and
the ditches, channels, gullies, basins, and dams that form the drainage system at the
Site. See id. at 20, 33–35. Thus, the only remaining issue as to BWR’s groundwater
CWA claims is whether the groundwater discharges qualify as the functional
equivalent of a direct discharge of AMD into the Locust Fork. See Parker, 386 F.3d
at 1008; Maui, 140 S. Ct. at 1468. See also doc. 93 at 36.
With the benefit of the Maui case, BWR contends that its expert reports and
data demonstrate that the AMD-contaminated groundwater flowing into the Locust
Fork constitutes the functional equivalent of a direct discharge of pollutants. See
doc. 106 at 19. Drummond proffers two rebuttals. First, as a threshold matter,
Drummond reiterates that the court should not consider BWR expert Anthony
Brown’s 2021 declaration, appended to BWR’s renewed motion, because the
declaration is untimely, inadmissible, speculative, and irrelevant. See docs. 112 at
6–7, 9–11; 113. Second, and more substantively, Drummond asserts that genuine
issues of fact remain as to whether the groundwater constitutes the “functional
equivalent of a direct discharge of pollutants from a point source” and, if yes,
whether this is “sufficient to support a judgment.” See id. at 16.
10
The court has considered and rejected Drummond’s first argument, finding
that Drummond fails to adequately establish which statements, if any, in Brown’s
declaration warrant exclusion. See doc. 121. Thus, the disposition of BWR’s
summary judgment motion boils down to whether a reasonable jury could return a
verdict for Drummond on BWR’s groundwater CWA claims. See Anderson, 477
U.S. at 248. The court first walks through BWR’s argument that no genuine issues
of material fact remain as to its groundwater CWA claims. Concluding that BWR
affirmatively makes its case for summary judgment, the court then turns to
Drummond’s rebuttals.
A.
BWR cites Brown’s 2017 report and his related 2021 declaration as evidence
demonstrating that the groundwater constitutes the functional equivalent of a direct
discharge under the Maui factors. See docs. 106; 106-1.
1.
In his 2017 report, Brown noted the presence of pollutants in groundwater that
discharged into the Locust Fork, explaining that “toxic pollutants” discharged to the
Locust Fork via surface runoff or polluted groundwater and that these pollutants
“have been detected in samples of the surface water and in groundwater seeps that
discharge to the Locust Fork below the lower dam.” Doc. 53-6 at 19 (internal
citations omitted). Brown also described how groundwater seeps carry AMD into
11
the Locust Fork through the east side of the refuse pile as the polluted groundwater
flows into surface water in the sediment basins and enters the Locust Fork as “bedseepage or at near-shore seeps.” See doc. 53-6 at 48, 50–51, 70–71.5 See also id. at
13.6 As with the samples taken from the refuse pile and the surface water, Brown
apparently detected “high iron and sulfate concentrations” in the groundwater
samples and noted that “total Alkalinity, [total dissolved solids], Acidity, and Sulfate
levels are at least ten times higher (TDS, acidity, sulfate) and ten times lower
(alkalinity) in groundwater samples taken at the Site than in samples taken from the
Locust Fork or locations not receiving runoff from the GOB Pile.” Id. at 71.
In his 2021 declaration appended to BWR’s motion, Brown focuses on the
discharge of polluted groundwater at the lower dam and revisits data and
observations from his 2017 report to analyze the groundwater under the Maui
factors. Doc. 106-1 at 4. Because he previously observed “polluted” groundwater
5
Brown explained that “a groundwater plume with elevated concentrations of [chemicals of
concern] and [total dissolved solids] was evident in the surface EM31 data and land-based [electric
resistance tomography] data” and that polluted groundwater “is present in the underlying bedrock
and infill GOB waste” and in the “infilled sediments.” Doc. 53-6 at 70. He described a “plume
with high TDS concentrations discharging to the Locust Fork . . . immediately below and above
the lower dam” and stated that he observed “discharge at seeps” during site inspections and field
investigations. Id. “Using Darcy’s equation and parameter estimates for hydraulic conductivity,
hydraulic gradient, and cross-sectional area of flow,” Brown estimated that “the discharge of
groundwater to the Locust Fork from the Sedimentation Basins” is 34 gallons per minute. Id.
6
Brown stated that “polluted groundwater in the lower Sedimentation Basin discharges at seeps
below the lower dam that flow into the Locust Fork” and that “[o]pposite the lower dam, polluted
groundwater also discharges through GOB waste sediments on the bed of the Locust Fork (i.e.,
bed-seepage) into the river water.” Id. at 13.
12
discharge “at seeps along the eastern slope” of the Site in 2017 but did not present
“an estimate of the volume of polluted groundwater discharge along the eastern
slope,” his 2021 declaration focuses only on the lower dam “where such an estimate
was provided in [his] expert report.” Id.
On the Maui factors of time and distance, Brown notes that polluted
groundwater flows “10 to 30 feet” through the lower dam before “discharging at
surface seeps” under the lower dam to the Locust Fork. Id. at 7. Using Darcy’s
equation to calculate groundwater velocity, he estimates that the groundwater flows
at a rate of 6.9 feet per day and that groundwater at the lower dam thus enters the
Locust Fork from seeps in “approximately 1.5 to 4.4 days.” Id. Turning to bed
seepage, Brown states that the groundwater flows 30 to 100 feet through and under
the lower dam and onto riverbed sediments before entering the Locust Fork. Id.
Using the velocity rate of 6.9 feet per day, he calculates that groundwater at the lower
dam enters the Locust Fork as bed seepage “in approximately 4.4 to 14.6 days.” Id.7
BWR argues that the refuse pile and groundwater discharges thus function “like a
7
Regarding these time and distance factors, BWR also cites several photographs it previously
filed, arguing they convey the “extremely close proximity” of “the lower dam and spillway (point
source)” to the Locust Fork. Doc. 106 at 9–10 (citing docs. 55-19 at 2; 53-9 at 2; 55-20 at 2; 53-6
at 105). These photographs appear to depict front and aerial views of the lower dam that show the
“spillway” adjacent to the Locust Fork, and the close proximity is evidenced in part by small trees
casting a shadow over the dam and onto the river. See docs. 55-19 at 2; 53-9 at 2; 55-20 at 2; 5513 at 3; 53-6 at 105. See also doc. 106 at 9–10.
13
pipe, discharging pollutants, above and below the surface, just feet away from the
Locust Fork.” See doc. 106 at 13.
As to the other Maui factors, Brown has asserted that the refuse pile is
“permeable and highly porous,” allowing “infiltration of rainwater and flow of
groundwater.” Id. at 14 (citing doc. 106-1 at 9). See also doc. 53-6 at 42 (“Based
on the field observations, most of the contaminated groundwater beneath the GOB
waste (graded, infill and Pile) flows through the GOB waste sediments in the
Sedimentation Basins and thence discharges to the Locust Fork.”); id. at 12.8 Put
another way, groundwater apparently travels through the acidic refuse pile and
becomes polluted by it, thence carrying AMD as the groundwater flows into the
Locust Fork. See doc. 106 at 14 (citing doc. 53-6 at 12–14). Brown claims that
when rainfall infiltrates the refuse pile, pollutants dissolve into the water, “creating
the AMD that is carried by polluted surface runoff and groundwater to the Locust
Fork.” Id. at 11–12. In sum, the groundwater both becomes polluted by the refuse
waste and also furnishes the means by which AMD flows into the Locust Fork. See
id. at 15.
8
Brown also explained in his 2017 report: “Toxic pollutants in the GOB waste (GOB pile, graded
GOB waste, and infill GOB waste) dissolve into infiltrating water that percolates through the GOB
waste and recharges groundwater. The groundwater within and beneath the GOB waste is polluted
with AMD, and represents a large secondary source of toxic pollutant discharge to surface water.”
Doc. 53-6 at 12.
14
Because sampling data apparently reveal “the same basic chemical
characteristics and AMD contamination” at multiple Site locations, including the
upper parts and lower parts in the “seepage zone,” BWR argues that the evidence
demonstrates that groundwater only becomes more polluted, not diluted, as it travels
to the Locust Fork. See id. (citing doc. 53-6 at 58–62). BWR claims that this
presents even stronger evidence of a functional equivalent of a direct discharge than
the evidence in Maui, where fresh groundwater and volcanic rock diluted the
wastewater at issue “in its long journey to navigable waters.” Id. at 15–16 (citing
Maui, 2021 WL 3160428, at *14–15). In addition, Brown states that the discharges
into the Locust Fork maintain their identity as polluted AMD because “[t]he GOB
material does not attenuate the concentration of pollutants in the groundwater at the
points of discharge.” Id. at 17; doc. 106-1 at 13–14 (citing doc. 53-6 at 58–62).
BWR argues that this evidence, paired with Brown’s calculation that
approximately 49,500 gallons of polluted groundwater discharges to the Locust Fork
each day and 100 percent of the groundwater at the Site flows into the Locust Fork,
demonstrates that the groundwater flows violate the CWA under Maui. See id. at
16–17. BWR again draws a comparison between the AMD-polluted groundwater
flowing into the Locust Fork and the “example of a pipe that ‘ends a few feet from
navigable waters,’” where the “pipe emits pollutants that travel those few feet
15
through groundwater.” Id. at 18 (citing Maui, 140 S. Ct. at 1476). Thus, BWR says,
the CWA clearly applies to the groundwater at issue. Id.
2.
On this evidence, BWR has met its initial burden of establishing the absence
of a genuine dispute regarding whether the groundwater discharges into the Locust
Fork constitute the functional equivalent of a direct discharge of pollutants from a
point source. See Maui, 140 S. Ct. at 1468, 1476. For one, BWR and its expert
Brown sufficiently establish “the kind of time, distance, and dilution data that the
[c]ourt would require for its Maui inquiry.” See Cottonwood Envtl. Law Ctr. v.
Edwards, No. 20-00028, 2021 WL 1102405, at *7 (D. Mont. March 23, 2021).
BWR has presented evidence that contaminated groundwater from the lower dam
reaches the Locust Fork in as little as 1.5 to 4.4 days, see doc. 106-1 at 7, and given
the proximity of the lower dam and spillway to the Locust Fork, see, e.g., docs. 5519 at 2; 53-9 at 2, “the [AMD] likely travels a relatively short distance through
groundwater.” See Maui, 2021 WL 3160428, at *14. Indeed, the Maui Court
emphasized that “time and distance will be the most important factors in most cases.”
140 S. Ct. at 1476.
Additionally, BWR has provided evidence that polluted groundwater travels
through “porous” GOB waste that exacerbates rather than dilutes the intensity of the
16
AMD. See docs. 53-6 at 18, 30, 50–51, 58–62, 68–71; 106 at 14–15.9 Further still,
BWR has presented evidence that the pollution maintains its identity as AMD as the
AMD-laden groundwater discharges into the Locust Fork, bolstered by the finding
that concentrations of chemicals and the pH of the groundwater seeps have “similar
ranges” as the data observed for surface water. See docs. 53-6 at 58–62; 106 at 15–
17; 106-1 at 13–14.
Taking this evidence together and using Maui as guide, the court finds that
BWR has “adequately support[ed] its motion” for summary judgment on its
groundwater CWA claims. See Cynergy, 706 F.3d at 1326. Thus, “the burden shifts
to [Drummond] to show that specific facts exist that raise a genuine issue for trial.”
See id.
9
Brown’s 2017 report stated that “[t]he data confirm that some metals are present in the GOB
waste at concentrations higher than the USEPA RSLs, as well as above nearby background
concentrations in soils. These metals can be readily dissolved into water under the acidic
conditions present in the mine waste.” Doc. 53-6 at 50; id. at 59 (describing “eight dissolved
metals with concentrations in groundwater samples collected at the Site significantly above the
concentrations detected in the upstream sample from the Locust Fork”). Brown also noted the
transport of AMD via groundwater in this report:
[G]roundwater within GOB waste was present in monitoring wells installed by
PELA in the early 1980’s. Metals in the GOB waste then dissolved directly into the
groundwater flowing through the waste. These toxic pollutants would discharge
directly to the Locust Fork through river-bed sediments and at near-shore seeps, or
discharge to Tributary 1 where they would be transported with surface water to the
Locust Fork. In the new GOB waste areas, likely created from 1974 to 1982, even
with improved grading, cover, revegetation, and drainage, some precipitation still
infiltrated and percolated to groundwater.
Id. at 69 (internal citations omitted).
17
B.
Drummond essentially counters that (1) Brown’s data is insufficient and his
opinions are speculative, see doc. 112 at 4–5; (2) BWR’s other experts fail to negate
issues of fact, see id. at 5, 11; (3) BWR mischaracterizes Drummond’s expert
reports, which demonstrate that the evidence does not prove “the actual discharge of
a pollutant by way of groundwater as groundwater,” id. at 12–15, 20; and (4) even
if the evidence establishes the functional equivalent of a direct discharge of pollution
via groundwater, this evidence cannot support a judgment, id. at 20.
1.
Drummond first argues that the data Brown collected during field
measurements cannot support his opinions and that his opinions constitute
speculative interpretation. See id. at 4–5. Drummond contends that BWR’s “entire
case” rests on “seven surface water ‘field measurements’ taken on August 1, 2017
using a portable hand-held pH and TDS/EC meter and on certain additional data
obtained on August 16-18, 2017.” Id. These field measurements, Drummond
claims, consist only of “minimal components” that include 10 soil samples, 15 water
samples that Drummond calls “surface water samples” (although BWR calls them
“groundwater seeps”), four groundwater samples, and “some electromagnetic
readings of no conclusive significance.” Id.
18
Drummond deems this an “obvious lack of data upon which Brown attempts
to predicate his opinions.” Id. 10 Relatedly, Drummond states that Brown “conflates
surface water and groundwater” and that his “speculation and conjecture are not
admissible evidence.” Id. at 7. See also id. at 10. It is not obvious how or why
Brown’s data is lacking or that his opinions are purely speculative. Drummond says
that Brown’s samples “are not scientific evidence,” that Brown admits certain
instrument readings “are subject to interpretation,” and that because Brown lacks
particular data, his estimations are similarly rendered “speculative” and
“inadmissible.” Id. at 7–8.
However, merely stating that data is lacking does not make it so, and
subsequently labeling expert conclusions as “speculative” does not necessarily raise
a genuine dispute. As the Circuit put it, “[a] nonmoving party . . . cannot meet the
burden of coming forth with relevant competent evidence by simply relying on legal
conclusions or evidence which would be inadmissible at trial.
The evidence
presented cannot consist of conclusory allegations or legal conclusions.” Avirgan v.
Hull, 932 F.2d 1572, 1576 (11th Cir. 1991) (internal citation omitted). Rather, a
party asserting that a genuine dispute exists “must support the assertion by . . . citing
to particular parts of materials in the record” or by “showing that the materials cited
10
See also id. at 5 (“The only undisputed facts regarding groundwater are the laboratory analytical
results from these four piezometer samples. The analyticals show what they show; they do not
show what they do not show. Everything else is interpretation.”).
19
do not establish the absence . . . of a genuine dispute.” See FED. R. CIV. P. 56(c). If
Drummond, for example, cited expert testimony that particularly explained why
Brown’s data insufficiently supports his conclusions or that specifically identified
where Brown veers into unmoored speculation, the court could determine that a
genuine dispute persisted. Without evidence buttressing these assertions, however,
the court cannot simply take counsel’s word for it that BWR’s data is “obvious[ly]”
lacking, see doc. 112 at 4–5, or accept counsel’s own interpretations of Brown’s
opinions.11 Indeed, “[o]n summary judgment review, a court cannot simply accept
counsel’s ipse dixit for an unsupported factual statement in a brief.” Jones v. Coty
Inc., 362 F. Supp. 3d 1182, 1195 (S.D. Ala. 2018).
Drummond next asserts that AMEC Foster Wheeler’s and CH2M’s 2017 and
2018 reports “directly oppose[]” the “numerous deficiencies in Brown’s 2017
report.” Doc. 112 at 4–5 (citing docs. 50-14; 50-16; 61-1; 61-3). However,
Drummond does not cite specific pages of these reports that refute Brown’s
11
Drummond also insists that Brown, “confounding the meaning of terms, also speaks of
‘groundwater’ seeps, but is really discussing surface water given that the water is visible.” Doc.
112 at 6. See also id. at 7–8. But contrary to Drummond’s assertion, Brown rests his groundwaterrelated conclusions not solely on the observation of groundwater seeps but also on sampling data.
See doc. 53-6 at 48, 50–51. Moreover, Drummond does not adequately explain why groundwater
seeps do not indicate groundwater. The only expert that Drummond cites for these conclusions is
Maggie Weems, who stated that she “would consider the seep to be not groundwater.” Id. at 6
(citing doc. 61-30, 114:17–19). Again, the court cannot accept counsel’s unsupported statements
as to the propriety or logic of Brown’s observations and conclusions, and one expert’s testimony
that she “would consider the seep to be not groundwater,” without more, fails to support the
assertion that BWR’s water samples “are not scientific evidence of the non-visible movement of
groundwater as groundwater from the property into the Locust Fork by ‘bed-seepage,’ nor can
such movement be established by dragging some wires behind a boat.” See id. at 7–8.
20
opinions, instead citing generally four documents totaling over 400 pages.12 To be
sure, Drummond seems to argue that somewhere within these documents, which
contain, among other things, these expert reports, lies a silver bullet. But judges “are
not like pigs, hunting for truffles buried in briefs,” and courts “are not required to
ferret out delectable facts buried in a massive record, like the one in this case.”
Chavez v. Sec’y Fla. Dep’t of Corr., 647 F.3d 1057, 1061 (11th Cir. 2011) (quoting
United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)). Drummond must cite
to “particular parts of materials in the record” or demonstrate that BWR’s cited
materials do not actually establish the absence of a genuine dispute. FED. R. CIV. P.
56(c). This it has failed to do.
In light of BWR’s specific arguments and citations to expert opinions,
Drummond’s broad gesture to over 400 pages of evidentiary submissions “fails to
properly address [BWR’s] assertion[s] of fact.” See id. 56(e). The court therefore
agrees with BWR that Drummond “cites nothing from either report that rebuts any
12
Document 50-14 is a 130-page exhibit containing the deposition of Lynn Sisk of CH2M
followed by “CH2M Response to Plaintiff’s Reports Regarding the Former Maxine Mine Site Near
Maxine, Jefferson County, Alabama” and over 70 pages of graphs, charts, and tables. See doc. 5014. Likewise, document 50-16 is a 131-page exhibit containing various charts and tables, the 2017
Alabama Fish Consumption Advisories, and another CH2M report, see doc. 50-16, and document
61-1 is a 109-page exhibit beginning with the Weems declaration that introduces several reports
by or for AMEC Foster Wheeler, see doc. 61-1. Finally, document 61-3 is a 109-page exhibit with
various laboratory results, additional opinions from AMEC Foster Wheeler, and rebuttal reports
by Wood Environment & Infrastructure Solutions, Inc. See doc. 61-3.
21
fact or opinion by Brown pertinent to this motion.” See doc. 114 at 5 n.8. 13 Because
the court may accordingly consider BWR’s assertions “undisputed for purposes of
the motion,” see FED. R. CIV. P. 56(e), Drummond’s argument that Brown’s data and
opinions are speculative and lacking fails to establish a genuine issue for trial.
2.
Drummond next argues that, after excluding Brown’s opinions, BWR’s
evidence rests only on the opinions of Nelson Brooke, Barry Sulkin, and Gordon
Johnson, and none of these opinions apparently negate issues of fact as to BWR’s
groundwater claims. See doc. 112 at 11. Drummond fails to cite specific portions
of materials in the record, such as statements in depositions, affidavits, or
declarations, that explain why these experts’ opinions are insufficient. See FED. R.
13
Later in its brief, Drummond cites several pages of AMEC Foster Wheeler’s 2017 report,
arguing they demonstrate “problems and shortcomings with the EM31 and ER data relied upon by
Brown—including, particularly, his selective interpretation of that data.” Doc. 112 at 15 (citing
doc. 61-1 at 18–19, 29–31). For its part, BWR asserts that the “cited reports barely mention
groundwater. At most, the AMEC report refers to alleged issues with ERT testing, generally, but
it never directly refutes Brown’s interpretations or conclusions about the data.” Doc. 114 at 5 n.8.
After reviewing the cited pages of the AMEC Foster Wheeler report, the court disagrees with BWR
that the report “barely mention[s] groundwater.” Id. But the court does agree that these portions
do not directly refute Brown’s groundwater-related opinions. The cited pages cast doubt on the
extent to which the Locust Fork has become polluted but do not appear to rebut Brown’s data- and
observation-driven opinions that AMD infuses groundwater that flows from the refuse pile to the
Locust Fork. See, e.g., doc. 61-1 at 19. And Drummond’s contention also ignores that the court
underscored BWR’s “extensive evidence of historical and ongoing discharges” of AMD from the
refuse pile into the Locust Fork in its prior opinion and order, where the court noted that “BWR
collected numerous surface water, sediment, and groundwater samples in 2016 and 2017 from
various locations at the site” that its experts said revealed the presence of AMD. Doc. 93 at 17–
18 (citing docs. 55-3 at 2; 55-6 at 60–51, 76, 79; 54-3 at 25–30; 56-1 at 3–8). This evidence led
the court to conclude that the opinions of Drummond’s experts “[were] insufficient to create an
issue of fact regarding the discharge of AMD” into the Locust Fork. Id. at 20.
22
CIV. P. 56(c). And even setting this issue aside, a review of the briefing indicates
that BWR does not rely on the opinions of Brooke, Sulkin, or Johnson to support its
motion on the groundwater CWA claims. See generally doc. 106 (relying only on
Brown’s materials); doc. 114 at 6 n.11 (“For its groundwater claims, BWR is not
relying on any of the testimony of Nelson Brooke, Barry Sulkin, or Gordon Johnson
cited by Drummond.”). Thus, this contention fails to raise a genuine issue for trial
on the groundwater CWA claims.
3.
Drummond also asserts that, by claiming that Lynn Sisk and Thomas Simpson
agree with BWR about the flow of polluted groundwater into the Locust Fork, BWR
mischaracterizes Sisk’s and Simpson’s testimony, see doc. 112 at 12, and that
Drummond’s experts in fact highlight the relatively small amounts of groundwater
present at the Site, see id. at 13–15. These arguments drive at one conclusion: that
“there is no evidence of groundwater being discharged as subterranean groundwater
to the Locust Fork.” Id. at 13–14, 20. In support, Drummond cites testimony from
Sisk, who stated that Brown was “speculating” about the depth of groundwater;
Leslie Noble, who noted that the area where the piezometers were set “is not going
to produce a great deal of water”; Bruce Wielinga, who testified that the “data says
to [him] that there is not a robust or very large groundwater flow system out
there. . . . [and] that there’s not a lot of groundwater”; and Dwight Hicks, who
23
testified that he saw “no indication that groundwater is moving to the river” because
“[e]verything that [he] see[s] down there is more related to the surface.”14 Id. at 14–
15.
That the groundwater flows are small in volume relative to the surface water
system may weaken BWR’s argument. But accepting as true that the Site contains
a relatively small groundwater system, as Drummond’s experts opined, the court
finds this assertion insufficient to raise a genuine dispute as to whether the
groundwater discharges violate the CWA. Even if data and observations indicate
that “there is not a robust or very large groundwater flow system” at the Site, see id.
at 14–15, this does not contradict the ultimate conclusion that the groundwater flows
functionally equal a direct discharge of pollutants under Maui.15
On “the most important factors in most cases,” time and distance, Maui, 140
S. Ct. at 1476, BWR has presented evidence that groundwater carrying AMD flows
14
Hicks, however, also testified that he had not “looked for [groundwater] seeps along the bank”
and did not know if groundwater seeps existed at the Site. See doc. 53-1 at 62.
15
Compare Hawai’i Wildlife Fund v. Cty. of Maui, No. 12-00198 SOM/KJM, 2021 WL 4898661,
at *1 (D. Haw. Oct. 20, 2021) (denying defendant’s motion for reconsideration of summary
judgment) (“In determining that the . . . discharge is the functional equivalent of a direct discharge
into navigable waters, this court examined each of the seven factors enumerated by the Supreme
Court, paying particular attention to the time and distance factors . . . . In the course of its analysis,
this court considered the volume of the discharge, a factor not listed by the Supreme Court. The
massive volume was relevant to and informed this court’s decision, but it was not essential to this
court’s determination.”) with Peconic Baykeeper, Inc. v. Harvey, 13-CV-6261 (JMA) (SIL), 2021
WL 4755623, at *7 (E.D.N.Y. May 21, 2021) (holding that three of the seven Maui factors
“remain[ed] sharply in dispute to such an extent that they outweigh[ed] the time and distance
factors such that summary judgment should be denied”).
24
into the Locust Fork in a matter of days, traveling a short distance from the refuse
pile through and under the lower dam on the shore of the Locust Fork. See docs. 536 at 37 (describing “the GOB pile on a bluff that forms the westerly bank of the
Locust Fork”); 106 at 11 (“Brown estimates that the contaminated groundwater
discharges to the Locust Fork via seeps over a distance of only 10 to 30 feet; and
approximately 30 to 100 feet to the [Locust Fork] as bed seepage.”); 106-1 at 4.
BWR has also presented evidence that the groundwater discharges satisfy the
remaining five factors relevant to the functional-equivalent test under Maui. See
doc. 106 at 14–19. The only factor arguably weakened by Drummond’s assertion
that the groundwater system is “small” or “not robust” is the fifth factor, “the amount
of pollutant entering the navigable waters relative to the amount of the pollutant that
leaves the point source.” However, the other six factors, including the two most
important factors, do not appear sharply disputed based on the evidence Drummond
cites. Applying Maui, the court is unpersuaded that a reasonable jury could find for
Drummond on the issue of whether the groundwater constitutes a functional
equivalent of a direct discharge under the CWA.
4.
Finally, Drummond argues that even if evidence establishes the functional
equivalent of a direct discharge of pollution to the Locust Fork, this evidence is
insufficient to support a judgment. Doc. 112 at 20. In support, Drummond asserts
25
that the groundwater discharges have no more than a de minimis impact on the
Locust Fork. See id. at 16 n.15, 20. However, Drummond does not cite legal
authority squarely supporting this position, and Drummond acknowledges that the
Maui Court failed to address the issue. Id. at 16 n.15.
The CWA states that absent statutory compliance, i.e., the requisite permit,
“the discharge of any pollutant by any person shall be unlawful.” 33 U.S.C.
§ 1311(a) (emphasis added).
Interpreting this “zero-discharge” provision, the
Circuit held that where a developer could not obtain an NPDES permit, the developer
made “every good-faith effort” to comply with the CWA and relevant pollution
control measures, and the stormwater discharges at issue “pose[d] no threat to human
health, and [] much of the damage [caused by the discharges would] be reversed with
the passage of a relatively short amount of time,” the zero-discharge rule did not
apply. Hughey v. JMS Dev. Corp., 78 F.3d 1523, 1530 (11th Cir. 1996). But Hughey
cautioned that “[t]he facts of this case necessarily limit[ed] [its] holding to situations
in which the stormwater discharge is minimal.” Id.16
The Circuit later explained that Hughey “staked out a path [that] developers
wishing to avoid liability can follow where no [NPDES] permit is available and
16
Specifically, in Hughey, a Georgia homeowner sued a residential developer for discharging
stormwater without an NPDES permit, but NPDES permits covering stormwater were not
available in the state at the time. Id. at 1524. The Circuit also noted that “nothing [the developer]
could do would prevent all rain water discharge” and that the developer obtained a county permit,
suggesting the developer “would have been able to obtain an NPDES permit” if one had been
available. Id. at 1530.
26
where it would otherwise be impossible to develop their land without causing some
discharge” by requiring the developer to “be in good-faith compliance with all state
and local requirements prior to any discharge” and to “reduce the discharge to a
minimum.” Driscoll v. Adams, 181 F.3d 1285, 1289 (11th Cir. 1999). The Circuit
held that “but for the limited exception recognized in [Hughey], ‘[t]he amended
CWA absolutely prohibits the discharge of any pollutant by any person, unless the
discharge is made according to the terms of [an NPDES] permit.’” Id. Because the
facts of this case do not resemble the scenarios referenced in Hughey and Driscoll,
Drummond cannot claim this limited exception to CWA liability.
Additionally, the Maui Court recognized that “[t]he underlying statutory
objectives” of the CWA would “provide guidance” to courts determining whether
groundwater discharges violate the CWA. See 140 S. Ct. at 1477. The CWA “was
designed to prevent pollutants from harming navigable waters and their ecosystems
or, at least, to limit that harm by limiting the amount of pollutant being discharged
pursuant to a permit.” Maui, 2021 WL 3160428, at *17; see 33 U.S.C. § 1251(a).17
To achieve that end, the CWA does not mandate “some minimum amount” of
pollution to trigger its permitting requirement; the CWA straightforwardly prohibits
“the discharge of any pollutant.” Maui, 2021 WL 3160428, at *17; 33 U.S.C.
17
For example, “it is the national goal that the discharge of pollutants into the navigable waters be
eliminated by 1985.” 33 U.S.C. § 1251(a)(1).
27
§ 1311(a). See also Patronas v. Marshall Durbin Food Corp., No. CV-03-J-749-J,
2005 WL 8158435, at *11 (N.D. Ala. Mar. 17, 2005). 18
Therefore, whether the polluted groundwater flowing from the refuse pile into
the Locust Fork significantly contributes to ecological damage at the Locust Fork
does not bear on the question of whether the CWA requires Drummond to have a
permit to discharge the polluted groundwater in the first instance. Drummond has
thus failed to raise a genuine issue of material fact as to its liability under the CWA
for discharging AMD into the Locust Fork via groundwater.
V.
In sum, BWR has established the absence of a genuine dispute regarding
whether the groundwater discharges carrying AMD into the Locust Fork constitute
the “functional equivalent of a direct discharge” of pollution under the CWA.
Because this represented the only remaining element in dispute as to BWR’s
groundwater CWA claims, see doc. 93, BWR is entitled to summary judgment on
its groundwater CWA claims. BWR’s renewed motion for summary judgment, doc.
106, is GRANTED.
18
In Patronas, Judge Inge Johnson rejected the defendant’s argument that the plaintiff could not
prove that NDPES permit violations caused harm to certain waterways. Id. at *11. Relevant here,
Judge Johnson found “sufficient proof of causation in the record for a finding of liability” under
the CWA and quoted language stating that the CWA “recognizes neither a good faith nor a de
minimis defense.” Id. (emphasis added) (quoting Int’l Union, United Auto. Aerospace & Agric.
Implement Workers of Am., AFL-CIO v. Amerace Corp., 740 F. Supp. 1072, 1081–82 (D.N.J.
1990)).
28
DONE the 12th day of January, 2022.
_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
29
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