Adams Jr. et al v. Teck Cominco Alaska Inc. et al

Filing 276

Order on Motion for Summary Judgment

UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA

ENOCH ADAMS, JR., LEROY ADAMS,
ANDREW KOENIG, JERRY NORTON,
DAVID SWAN, and JOSEPH SWAN,
Plaintiffs,
vs.
TECK COMINCO ALASKA, INC.,
Defendant.

NANA REGIONAL CORPORATION and
NORTHWEST ARCTIC BOROUGH,
Intervener-Defendants.

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3:04-cv-00049-JWS
ORDER AND OPINION
[Re:

Motion at docket 241]

I. MOTION PRESENTED
At docket 241 plaintiffs Enoch Adams, Leroy Adams, Andrew Koenig, Jerry
Norton, and Joseph Swan (collectively “Adams”) move for an order establishing four
propositions as a matter of law. Defendant Teck Cominco Alaska, Inc. (“Teck”) and
intervener-defendant NANA Regional Corporation (“NANA”) oppose the motion. The
motion has been fully briefed.

II. BACKGROUND
Having described the general background of this litigation in prior orders, and
realizing that the parties are very familiar with it, the court deems it unnecessary to

include a general description of the events giving rise to the litigation in this order.1
What needs to be said here is only that the court allowed Adams to file the instant
motion long after the time for filing summary judgment motions had expired based on
Adams’ representation that the motion would raise only legal issues which would have
to be determined at some point in the trial process.2

III. SUMMARY JUDGMENT STANDARD
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment
should be granted if there is no genuine dispute as to material facts and if the moving
party is entitled to judgment as a matter of law. The moving party has the burden of
showing that there is no genuine dispute as to material fact.3 The moving party need
not present evidence; it need only point out the lack of any genuine dispute as to
material fact.4 Once the moving party has met this burden, the non-moving party must
set forth evidence of specific facts showing the existence of a genuine issue for trial.5
All evidence presented by the non-movant must be believed for purposes of summary
judgment, and all justifiable inferences must be drawn in favor of the non-movant.6
However, the non-moving party may not rest upon mere allegations or denials, but must
show that there is sufficient evidence supporting the claimed factual dispute to require a
fact-finder to resolve the parties’ differing versions of the truth at trial.7

1

See, e.g., Order at doc. 104.

2

Order at doc. 206.

3

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

4

Celotex, 477 U.S. at 323-325.

5

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-9 (1986).

6

Anderson, 477 U.S. at 255.

7

Id., 477 U.S. at 248-9.
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IV. DISCUSSION
Adams’ motion purports to present four issues. Bluntly put, the briefing from both
parties is turgid. The court has distilled from it the four questions set out below. To the
extent the parties believe they have raised other or different issues, the court declines to
address them on the basis that the court cannot tease them out of the briefing.
Question 1: Are Monthly Average TDS Violations of TDS Limits Which Occured
Outside Arctic Grayling Spawning Season Capable of Repetition?
The short answer is “yes, but.” To be less cryptic a fuller comment is in order. If
Adams proves that the violations were capable of repetition at the time he filed his
action by showing, for example, sufficient proof of subsequent violations, then the fact
that the permit limitation was later altered so that the monthly average TDS limit applies
only during Arctic Grayling Spawning season does not establish that the violations were
not capable of repetition. But, the fact that the permitting authority determined that it is
not actually necessary to impose limits outside the sensitive spawning season will weigh
heavily in assessing an appropriate penalty. Of course, the issue of what penalty is
appropriate will not be addressed prior to the penalty phase of this bifurcated litigation.
Question 2: Is Teck Liable for Violations of the 4 ug/l Permit Limitation for
Cyanide in the Mine permit?
Adams points to three sections of the Mine Permit which address cyanide limits.
Adams reads the three provisions as standing alone and says in effect, even if it cannot
be shown as a matter of fact that there ever was a violation of the 4 ug/l limit, Teck is
liable because it did not appeal that permit provision to the permitting authority. Unlike
Adams, the court believes these provisions must be read together and read logically.
Doing so on the basis of the pre-trial record, suggests that the 4ug/l limit was desired,
Teck was expected at some point to devise a methodology which could discriminate to
a level of 3ug/l, but because there was no approved method that could discriminate
below 9 ug/l, an interim limit of 9ug/l was the only enforceable limit. The court
concludes that this matter cannot be resolved on summary judgment.
Question 3: Can Teck Rely on a Split Sample Defense?

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The answer is “no.” This proposition was expressly addressed in the order at
docket 104. As the court put it in that earlier order:
In Sierra Club v. Union Oil Co. of Calif.,8 the Ninth Circuit disapproved the
use of sampling errors as a defense to a claim based on a reported
violation of an NPDES permit. Adams contends that Sierra Club controls.
Teck argues that Sierra Club should be distinguished. The Sierra Club
court explained why sampling errors cannot be used to defend against
claims that an NPDES permit has been violated:
Were we to accept Union Oil’s argument regarding the use of
sampling errors to excuse reported permit exceedances, we would
be sanctioning countless additional hours of NPDES litigation and
creating new, complicated factual questions for district courts to
resolve. As indicated by the legislative history, Congress hoped to
limit such situations. In addition, if each self monitoring report is to
be considered only prima facie rather than conclusive evidence of
an exceedance of a permit limitation, citizen groups like the Sierra
Club would be taking a considerable risk whenever they initiated a
citizen enforcement action . . . . While a permitee’s publicly filed
reports might clearly indicate that illegal pollution was taking place,
the permittee might have additional information unavailable to
citizen groups indicating that sampling error rendered the reports
meaningless. Finally and most importantly, allowing permittees to
excuse their reported exceedances by showing sampling error
would create the perverse result of rewarding permittees for sloppy
laboratory practices. Such an approach would surely undermine
the efficacy of the self-monitoring program.
We conclude that when a permittee’s reports indicate that the
permittee has exceeded permit limitations, the permittee may not
impeach its own reports by showing sampling error.9

8

813 F.2d 1480, 1491-93 (9th Cir. 1987), vacated for reconsideration, 481 U.S.
931 (1988), reinstated and amended, 853 F.2d 667 (9th Cir. 1988).
9

813 F. 2d 1492. It may be noted that the concern for the risk borne by a plaintiff
who sues in reliance on a report has been ameliorated, but not eliminated, by the
Supreme Court’s decision in Gwaltney, 108 S. Ct. 376, which holds that a Clean Water
Act plaintiff has standing if his claims are pled in “good faith.” It would certainly be
appropriate to rely on a filed report. However, the risk that a plaintiff would incur
needless costs by initiating litigation which would not succeed if a defendant could then
put on proof of sampling error remains.
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Teck’s arguments for distinguishing Sierra Club are not persuasive. In
essence, they boil down to the proposition that Teck does not seek to use
sampling error as a defense but rather to use the “correct” DMR to show
there was no violation. Such an approach still falls within the reach of the
Sierra Club rationale. First, litigating over which of two reports is the
“correct” one encourages additional hours of litigation. In a related way,
providing Adams’ counsel with a second “correct” report on March 7,
2003, did not reduce plaintiff’s litigation risk, unless one first posits that the
second report must necessarily be the correct one. Third, while it may be
that the “sloppy” lab work here was that of CT&E, not Teck or Columbia,
CT&E was the contractor chosen by Teck to analyze samples for reporting
purposes, and so it is not unfair to require Teck to bear the consequences
of CT&E’s presumed error.10
Question 4: Is Violation of a Monthly Average Limit Considered A Violation On
Each Day There Was A Discharge?
The answer is yes. This court finds the Fourth Circuit’s decision in Chesapeak
Bay Foundation, Inc. v. Gwaltney of Smithfield, Ltd.11 to be directly on point. The parties
cite no controlling authority in this circuit. As Teck suggests, the Ninth Circuit decision
in United States v. Trident Seafoods Corp.12 is distinguishable on its facts. However, as
this court reads Trident, the Ninth Circuit decided that the notice requirement at issue
there was a one-time violation, not a continuing violation, precisely because neither the
statute nor the regulations spoke to a specific time period. The Ninth Circuit
distinguished Gwaltney in this manner: “The [Gwaltney] court reasoned that the Clean
Water Act ‘speak[s] in terms of penalties per day of violation rather than penalties per
violation.’”13 This court concludes that the Ninth Circuit likely would agree with the
reasoning of Gwaltney in a case presenting similar facts. That being said, this court
must also follow Gwaltney.
10

Doc. 104 at pp. 9-10.

11

791 F.2d 304, 313-15 (4th Cir. 1986), vacated and remanded on other grounds,
484 U.S. 49 (1987).
12

60 F.3d 556 (9th Cir. 1995).

13

Trident Seafoods at 60 F.3d 558 (quoting Gwaltney at 791 F.2d 314) (emphasis
in quote in Gwaltney).
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V. CONCLUSION
For the reasons set out above, the motion at docket 241 is GRANTED in part
and DENIED in part consistent with the preceding text.
DATED this 27th day of February 2008.

/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE

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