Black Warrior River-Keeper Inc v. Drummond Company

Filing 148

MEMORANDUM OPINION AND ORDER-In sum, for the foregoing reasons, the joint motion to enter the proposed consent decree, 146 , is GRANTED. The court will enter the consent decree, 146 -1, by separate order. Signed by Judge Abdul K Kallon on 08/10/2022. (AKD)

FILED
2022 Aug-10 PM 01:41
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
Before the court is a joint motion for the entry of a consent decree that the
parties negotiated to resolve this case in consultation with the U.S. Department of
Justice. See doc. 146. The DOJ has indicated that it does not object to the entry of
the consent decree. See doc. 147-1. As explained herein, the motion, doc. 146, is
due to be granted, and the court will enter the consent decree by separate order.
I.
“District courts should approve consent decrees so long as they are not
unconstitutional, unlawful, unreasonable, or contrary to public policy.” Stovall v.
City of Cocoa, Fla., 117 F.3d 1238, 1240 (11th Cir. 1997). Consent decrees must
also be “fair, adequate, and reasonable” and not “the product of collusion between
the parties.” Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir. 1977). Where, as here,
the consent decree resolves claims under federal statutes, the consent decree cannot

violate the statutes and must comport with the statutory objectives. See White v.
Alabama, 74 F.3d 1058, 1074–75 (11th Cir. 1996); Fla. Wildlife Fed., Inc. v.
Jackson, No. 4:08cv324-RH/WCS, 2009 WL 5217062, at *3 (N.D. Fla. Dec. 30,
2009).
II.
Black Warrior Riverkeeper sued Drummond Company in 2016 under the
Clean Water Act and the Resource Conservation and Recovery Act for allegedly
discharging acid mine drainage and other pollutants from the Maxine Mine Site into
the Black Warrior River’s Locust Fork and its tributaries. See docs. 1; 24. BWR
sought injunctive and declaratory relief, civil penalties, and attorneys’ fees and costs.
See id. See also doc. 146 at 2. In 2019, the court granted BWR’s motion for
summary judgment on the CWA claims predicated on the discharge of AMD from
the refuse pile, ditches, channels, gullies, basins, and dams at the Site into the Locust
Fork. Doc. 93. Earlier this year, with the guidance of the Supreme Court’s decision
in County of Maui v. Hawai’i Wildlife Fund, 140 S. Ct. 1462 (2020), the court also
granted BWR’s renewed motion for summary judgment on the CWA claims
predicated on the groundwater discharges at the Site. Doc. 122.
Thereafter, the parties began negotiating to resolve BWR’s claims and to
obviate the need for trial. In May 2022, the parties informed the court that they had
reached an agreement and were finalizing a proposed consent decree in consultation
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with the DOJ, pursuant to the government’s authority under the CWA. See, e.g.,
docs. 143; 145; 146. The parties subsequently filed the instant motion for approval
of a consent decree, amended as instructed by the DOJ. See docs. 146; 146-1. The
parties also filed a letter from an attorney with the DOJ’s Environmental and Natural
Resources Division indicating that the DOJ does not object to the consent decree.
See docs. 147; 147-1.
III.
The parties represent that the terms of the proposed consent decree, which
resolves all of the claims in this case, “were negotiated by the parties and that they
are appropriate, reasonable, and in the public interest.” Doc. 146 at 2. Upon review,
the court sees no reason to disagree and will approve and enter the consent decree.
For one, the proposed consent decree appears to reflect a reasonable
compromise: “[E]ach side could have done better or worse by continuing to litigate.”
See Fla. Wildlife Fed., 2009 WL 5217062, at *4. For example, the settlement
requires Drummond to achieve compliance with specified discharge and effluent
limits and water quality standards “by whatever scientifically proven and
environmentally sound technologies it chooses” while allowing BWR to monitor the
results. See doc. 146-1 at 4–8. The decree also requires Drummond to perform
sampling and data collection and to provide BWR with a “quarterly report” of “all
sampling activity and results,” and it also sets out milestones under which
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Drummond’s noncompliance will result in monetary penalties. See, e.g., id. at 8–
10. The court is confident that these terms and others, which the court highlights
below, illustrate that BWR and Drummond reached a fair and reasonable
compromise.
Additionally, and relatedly, nothing in the record suggests that the proposed
decree is the product of collusion. To the contrary, the parties intensely and
zealously litigated this case from its inception six years ago and, despite their
opposition to one another, ultimately reached a settlement through their advocates’
committed and professional efforts.

Indeed, the proposed decree is detailed,

thorough, and appears to represent a well-negotiated compromise between the
parties and not, for instance, a last-minute attempt to merely get rid of this lawsuit.
Importantly, the proposed decree is also consistent with the aims of the CWA
and the RCRA. As the DOJ represents in its letter, if a defendant in an environmental
lawsuit “has been out of compliance with statutory or permit requirements,” then the
proposed consent judgment—like the one here—“should require the defendant to
come into prompt compliance and should include a civil penalty, enforceable
remedies, injunctive relief, and/or a supplemental environmental project payment
sufficient to deter future violations, or combinations of the above.” Doc. 147-1 at 2.
That is the case here.

As mentioned, the proposed decree stipulates certain

compliance requirements and deadlines that, if violated, mandate Drummond to pay
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monetary penalties. See doc. 146-1 at 8–10. The proposed decree also requires
Drummond to “pay $10,000 as a civil penalty to the U.S. Treasury for the Clean
Water Act violations cited by the Court in its rulings.” Id. at 12. Drummond must
also pay BWR’s attorneys’ fees, expert fees, and other litigation expenses. Id. at 14.
Finally, Drummond must “fund a supplemental environmental project (SEP)
in the amount of $1,000,000 to be provided to the recipient Freshwater Land Trust”
or donate to FLT “all or a portion of a property it owns at the confluence of the
Locust and Mulberry forks of the Black Warrior River . . . that is valued at
$1,000,000 or more.” Id. at 13. This area is apparently “of unique conservation
value because it is a forested waterfront peninsula at the confluence of the Mulberry
and Locust forks where they form the Black Warrior River,” and “[i]ts preservation
and protection would also enhance water quality in a sensitive part of the Black
Warrior River watershed.” Id. at 13–14. For its part, FLT has affirmed that it read
the proposed consent decree and will use the $1,000,000 “to address an area or areas
of concern within the Locust Fork watershed” after consultation with BWR or
otherwise receive property from Drummond with “unique conservation value to the
Locust Fork watershed.” Doc. 147-1.
Taken together, the court is satisfied that the proposed consent decree
comports with the aims of the CWA and the RCRA. After all, Congress enacted the
CWA “to restore and maintain the chemical, physical, and biological integrity of the
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Nation’s waters,” 33 U.S.C. § 1251(a), and enacted the RCRA “to promote the
protection of health and the environment and to conserve valuable material and
energy resources,” including by “assuring that hazardous waste management
practices are conducted in a manner which protects human health and the
environment,” 42 U.S.C. § 6902(a). Thanks to the parties’ endeavors, the proposed
decree serves these statutory objectives through remedial efforts and future
conservation projects at the Black Warrior River.
IV.
In sum, for the foregoing reasons, the joint motion to enter the proposed
consent decree, doc. 146, is GRANTED. The court will enter the consent decree,
doc. 146-1, by separate order.
DONE the 10th day of August, 2022.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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