Gestamp Wind N. Am. v. All. Coal
| Decision Date | 16 August 2021 |
| Docket Number | 1787-2019 |
| Parties | GESTAMP WIND NORTH AMERICA, INC., ET AL, v. ALLIANCE COAL, LLC, ET AL. |
| Court | Court of Special Appeals of Maryland |
Circuit Court for Garrett County Case No. C-11-CV-18-000014
OPINION [*]
The answer to both questions is no. We will affirm the judgment of the circuit court.
Mettiki's coal processing operation
Since 1977, Mettiki has operated a coal cleaning and processing plant near Oakland, Maryland. The plant was originally built to serve mines operated by Mettiki that were located in Maryland, but the last of these closed in 2007. Currently product from a Mettiki mining operation in West Virginia is trucked to Mettiki's plant for processing. The material from the West Virginia mine is a mixture of coal, rock, clay, and other substances. As relevant to the issues in this appeal, at its Maryland site, Mettiki separates the usable coal from the other materials, which the parties refer to as "refuse." The usable coal is shipped to customers. The refuse is stored permanently on site in an immense pile. Refuse is transported unto the pile by conveyor belt and it is then sculpted by bulldozers into a series of horizontal terraces and diagonal slopes. After the process is completed, Mettiki is required to cover the slopes with topsoil and appropriate vegetation.[3]
Mettiki's activities at its coal processing facility are performed pursuant to a permit issued by the Maryland Bureau of Mines, which is part of the Maryland Department of the Environment. Among other things, the MDE regulates the maximum height of the refuse pile. In 2000, the MDE granted Mettiki's application to increase the height of its refuse pile to an elevation of 3, 203.5 feet.[4] In 2012, Mettiki applied for permission to increase the maximum height of its pile by twenty-five feet to an elevation of 3, 285 feet. At that time, Gestamp's predecessor-in-interest was in the process of building its wind farm on an adjacent tract of land. Gestamp's predecessor did not oppose the application. The application was also approved in 2016. In 2017, Mettiki applied for permission to increase the elevation of its refuse pile by thirty-seven feet to a maximum elevation of 3, 322 feet. Gestamp filed comments with the MDE opposing this application. As of the date of oral argument in this case, the MDE had not acted on the application.
The Roth Rock wind energy project
In 2009, Gestamp's predecessors-in-interest, Synergics Wind Energy, LLC and Synergics Roth Rock Wind Energy (collectively "Synergics") applied to the Maryland Public Service Commission for a certificate of public convenience and necessity for the construction and operation of a wind farm at a location called Roth Rock, which is near the crestline of Backbone Mountain and on land located adjacent to, and to the west of, Mettiki's operation. In its application, Synergics stated that there were "large, active, unreclaimed, and reclaimed coal strip mines" along the easterly side of Backbone Mountain adjacent to the project site. The application also stated that the view to the east from the project site "is dominated by coal mining operations and tailings mounds, some of which have reached heights of 3000 [feet]," which we take to be a reference to Mettiki's operation. The Commission approved the application in November 2009.[5]
In 2009, Mettiki entered into an easement agreement with Synergics that granted the latter rights-of-ways across portions of its properties for construction and access purposes. The terms of the easement agreement are relevant to Gestamp's negligence claim and we will discuss them in more detail later in this opinion.
The wind farm project eventually consisted of 20 wind turbines with associated infrastructure. Construction began in 2010. In 2011, Gestamp acquired Synergics' interest in the wind farm project and started operations in July 2011. In 2017, Gestamp received notice of Mettiki's pending application with the MDE to increase the permitted elevation of the refuse facility by 37 feet. Thereafter, Gestamp notified Mettiki that its refuse pile impeded the flow of wind into their turbines and that dust from Mettiki's refuse facility was damaging their equipment. Additionally, as we have related, Gestamp filed an opposition to Mettiki's application to the MDE to increase the height of its refuse pile.
The present action
In January 2018, Gestamp filed the current action. The operative complaint in this case is Gestamp's second amended complaint. In summary, the second amended complaint alleges that there are two aspects of Mettiki's operations that injure Gestamp.
The first is that Mettiki's refuse pile "has substantially increased" both in height and area. Because of these changes, the refuse pile "has significantly diminished the amount of wind passing through to the Wind Farm's turbines" with the result that the net energy production of the wind farm has been "substantially reduced," negatively affecting Gestamp's ability to provide power to its customers. We will refer to this theory of recovery as Gestamp's "wind interference claim."
Gestamp's second theory of recovery is that excessive amounts of fugitive coal dust from Mettiki's operations migrate onto the wind farm and have damaged, and will continue to damage, the blades and cooling units of six of the twenty wind turbines at Roth Rock. Gestamp asserts that this has necessitated additional cleaning and maintenance efforts, which will result not only in increased costs but also in a reduction of revenue because the turbines are not operating during repair and maintenance periods. Additionally, alleges Gestamp, the coal dust accumulation has "substantially reduced the average life span of the equipment." Gestamp alleged that the damages caused by fugitive coal dust have worsened over time as the size of Mettiki's refuse pile has increased and because Mettiki removed trees and other vegetative cover on its property. We will refer to this bundle of allegations as Gestamp's "coal dust damages claims."
The second amended complaint pled causes of action for negligence, trespass, and nuisance. All counts sought economic damages arising out of Gestamp's wind interference claim and its coal dust damage claim. Gestamp also requested injunctive relief.
Before the close of discovery, Mettiki filed a motion for partial summary judgment as to Gestamp's wind interference claim. After a hearing, the circuit court granted the motion because "nowhere in Maryland or in this country is there an expressly recognized cause of action relating to the impeding of airflow over property." In response to a question from counsel, the court clarified that it was not granting summary judgment on claims for damages "due to coal dust."
After the close of discovery, Mettiki filed a second motion for summary judgment on Gestamp's coal dust damage claims. The circuit court denied the motion after a hearing. Mettiki then filed motions in limine which sought to exclude parts of the evidence that Gestamp proposed to present at trial. The substance of each motion was that the evidence in question was either speculative or was of such a nature that it could be introduced only through the testimony of an expert witness, or both. In response, Gestamp withdrew all but two of its claims for damages. After a hearing, the trial court granted the remaining motions in limine. At the conclusion of the hearing, Mettiki renewed its motion for summary judgment as to the coal dust damage claims. Gestamp's counsel conceded that, in light of the court's rulings on the motions in limine, his client would be unable to prove damages. The court then granted judgment in Mettiki's favor on all claims.
The circuit court granted Mettiki's motion for partial summary judgment on Gestamp's wind interference claims. In reviewing a court's decision to grant summary judgment, we review the record considered in the light most favorable to the non-moving party to decide whether there are disputed issues of material fact. Wells Fargo Home Mortgage v. Neal, 398 Md. 705, 714, 922 A.2d 538 (2007). In determining whether there are such disputes, we construe reasonable inferences arising from the facts in favor of the non-moving party. Educational Testing Service v Hildebrant, 399 Md. 128, 140 (2007).
To avoid summary judgment, the non-moving party must establish the existence of a genuine dispute of material fact. Beatty v. Trailmaster Products, 330 Md. 726, 737 (1993). To be "genuine" in this context, the dispute must be more than hypothetical or conjectural. "[T]he mere existence of a scintilla of evidence in support of the [non-moving party's] claim is insufficient to preclude the grant of summary judgment; there must be evidence upon which the jury could reasonably find for the plaintiff." Id. at 738. Put another way "when a movant has carried its burden, the party opposing summary judgment 'must do more than simply show there is some metaphysical doubt as to the...
To continue reading
Request your trial