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

• Decision Date: 07 May 2019
• Docket Number: 2:16-cv-01443-AKK
• Court: U.S. District Court — Northern District of Alabama
• Parties: BLACK WARRIOR RIVER-KEEPER, INC., Plaintiff, v. DRUMMOND COMPANY, INC., Defendant.

BLACK WARRIOR RIVER-KEEPER, INC., Plaintiff,
v.
DRUMMOND COMPANY, INC., Defendant.

No. 2:16-cv-01443-AKK

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

May 7, 2019

MEMORANDUM OPINION AND ORDER

ABDUL K. KALLON, UNITED STATES DISTRICT JUDGE.

Black Warrior Riverkeeper (“BWR”), an environmental advocacy organization, brings this citizen enforcement action against Drummond Company, a coal mining company, under the Clean Water Act (“CWA”), 33 U.S.C. § 1365, and the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6972(a)(1)(B), for alleged discharges of pollutants from an abandoned coal mining site into the Locust Fork of the Black Warrior River and an alleged tributary of the Locust Fork. BWR asserts three CWA claims for discharges of pollutants without a permit in violation of 33 U.S.C. § 1311(a) (Counts I-III) and a RCRA endangerment claim (Count IV). Doc. 24 at 17-26.

Before the court are Drummond's motion for summary judgment on all claims, doc. 48, and BWR's motion for partial summary judgment as to liability on

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Counts I and, alternatively, IV, doc. 51. After careful consideration of the law and the parties' briefs, docs. 49, 52, 59, 60, 68, 69, the court finds that BWR's motion is due to be granted in part, and Drummond's motion is due to be denied.

Due to the length of this opinion, a brief roadmap may be helpful to the reader. Sections I and II, which do not address the specific contentions in this case, outline the standard of review and the statutory and regulatory framework, respectively. Section III outlines the factual and procedural background of this dispute. In section IV, the court turns to the parties' respective contentions, beginning in subsection A with BWR's contention that it has established that Drummond has engaged in unpermitted discharges in violation of § 402 of the CWA. After finding for BWR in part-specifically, as to the acid mine drainage (“AMD”) discharges into Locust Fork and the point sources, the court addresses in subsections B - E Drummond's various arguments in support of its motion for summary judgment, beginning with the statute of limitations defense. Finally, subsections F and G address the parties' respective contentions in support of their motions on the RCRA claim. Ultimately, the court concludes in section V that only BWR's motion related to AMD discharges into Locust Fork is due to be granted.

I. STANDARD OF REVIEW

Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper “if the movant shows that there is no genuine dispute as to any

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material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56. “Rule 56[] mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails 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) (alteration in original). At summary judgment, the court must construe the evidence and all reasonable inferences arising from it in the light most favorable to the non-moving party. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at 255. Any factual disputes will be resolved in the non-moving party's favor when sufficient competent evidence supports the non-moving party's version of the disputed facts. See Pace v. Capobianco, 283 F.3d 1275, 1276, 1278 (11th Cir. 2002). The moving party bears the initial burden of proving the absence of a genuine issue of material fact. Id. at 323. The burden then shifts to the nonmoving party, who is required to “go beyond the pleadings” to establish that there is a “genuine issue for trial.” Id. at 324 (internal quotations omitted). 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).

The simple fact that both sides have filed a motion for summary judgment does not alter the ordinary standard of review. See Chambers & Co. v. Equitable Life Assurance Soc.,

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224 F.2d 338, 345 (5th Cir. 1955) (explaining that cross-motions for summary judgment “[do] not warrant the granting of either motion if the record reflects a genuine issue of fact”). Rather, the court will consider each motion separately “‘as each movant bears the burden of establishing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.'” 3D Med. Imaging Sys., LLC v. Visage Imaging, Inc., 228 F.Supp.3d 1331, 1336 (N.D.Ga. 2017) (quoting Shaw Constructors v. ICF Kaiser Eng'rs, Inc., 395 F.3d 533, 538-39 (5th Cir. 2004)). “[C]ross motions for summary judgment will not, in themselves, warrant the court in granting summary judgment unless one of the parties is entitled to judgment as a matter of law on facts that are not genuinely disputed.” Bricklayers, Masons & Plasterers Int'l Union v. Stuart Plastering Co., 512 F.2d 1017, 1023 (5th Cir. 1975).

II. STATUTORY AND REGULATORY FRAMEWORK

A. The Clean Water Act

Congress enacted the CWA to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a). Towards that end, the CWA prohibits the discharge of any pollutant, including dredged or fill material, by any person into navigable waters unless authorized by an appropriate permit. Altamaha Riverkeeper, Inc. v. U.S. Army Corps of Engineers, 309 Fed.Appx. 355, 356 (11th Cir. 2009) (citing 33 U.S.C. § 1311(a)). Pursuant to section 402 of

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the CWA (“CWA § 402”), parties that discharge pollutants to navigable waters must obtain a permit under the National Pollutant Discharge Elimination System (NPDES) program, which imposes effluent limitations and other water quality standards, from either the Environmental Protection Agency (EPA) or an EPA-approved state permit program. 33 U.S.C. § 1342. In Alabama, the Alabama Department of Environmental Management (ADEM) is authorized to administer and enforce the NPDES permit program. See ADEM Admin. Code 335-6-6-.01 et seq.^[1] Under section 404 of the CWA (“CWA § 404”), dischargers of “dredged or fill material into navigable waters at specified disposal sites” must also obtain a permit, which may be issued by the U.S. Army Corps of Engineers (“the Corps”). 33 U.S.C. § 1344; see Black Warrior Riverkeeper, Inc., v. U.S. Army Corps of Engineers, 781 F.3d 1271, 1275 (11th Cir. 2015).

The CWA authorizes citizen enforcement actions against any person “alleged to be in violation” of an effluent limitation or standard under the CWA or an administrative order by the EPA or a state. 33 U.S.C. § 1365(a)(1). The Act requires plaintiffs to give notice of the alleged violations at least sixty days prior to commencing a citizen suit. Id. § 1365(b)(1). Courts in such actions may award civil penalties and grant equitable relief. Id. §§ 1365(a), 1319(d).

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B. The Resource Conservation and Recovery Act

The primary purpose of the RCRA “is to reduce the generation of hazardous waste and to ensure the proper treatment, storage, and disposal of that waste which is nonetheless generated, ‘so as to minimize the present and future threat to human health and the environment.'” Mehrig v. KFC Western, Inc., 516 U.S. 479, 483 (1996). RCRA authorizes citizen enforcement actions against “any person . . . who has contributed or 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.” 42 U.S.C. § 6972(a)(1)(B). Courts in RCRA citizen “endangerment” actions may grant equitable relief. Id. § 6972(a). Moreover, section 6972(a)(1)(B) “applies retroactively to past violations, so long as those violations are a present threat to health or the environment.” Parker v. Scrap Metal Processors, Inc., 386 F.3d 993, 1014 (11th Cir. 2004). Finally, RCRA citizen plaintiffs must provide notice of the alleged violations at least ninety days prior to commencing their endangerment action. 42 U.S.C. § 6972(b)(2)(A).

C. The Surface Mining Control and Reclamation Act

Congress enacted the Surface Mining Control and Reclamation Act of 1977 (SMCRA), 30 U.S.C. §§ 1201 et seq., in part, to “strike a balance between protection of the environment and agricultural productivity and the Nation's need

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for coal as an essential source of energy.” 30 U.S.C. § 1202(f). The Act authorizes each state to submit a proposed regulatory program that is “in accordance with the Act's requirements.” Id. § 1253(a). Upon approval from the U.S. Secretary of the Interior, the state assumes “exclusive jurisdiction over the regulation of surface coal mining and reclamation operations” subject to certain statutory exceptions. Id.; see Citizens for Responsible Resource Development v. Watt, 579 F.Supp. 431, 434 (M.D. Ala. 1983). The Alabama Surface Mining Commission (ASMC) was granted primacy under the SMCRA in May 1982. See Watt, 579 F.Supp. at 434; doc. 50-4 at 21.

SMCRA specifies that persons engaging in surface coal mining operations must obtain a permit from an approved state agency “no later than eight months from the date on which a State program is approved[.]” 30 U.S.C. § 1256(a). The Act further requires a permit applicant to file with the regulatory authority “an accurate map or plan” that reflects the “permit area, ” which is defined as “the area of land indicated on the approved map [in the application] . . . which area shall be covered by the operator's bond as required by section 1259 . . . .” Id. § 1291(17). The applicant must file this performance bond with the appropriate regulatory agency, and the bond covers “land within the permit area upon which the operator will initiate...