Living Lands, LLC v. Cline

• Decision Date: 21 February 2023
• Docket Number: Civil Action 3:20-0275
• Parties: LIVING LANDS, LLC, a West Virginia Limited Liability Company, D. C. CHAPMAN VENTURES, INC. a West Virginia Business Corporation, Plaintiffs, v. JACK CLINE, an Individual West Virginia Resident; BRADY CLINE COAL CO., a dissolved West Virginia Business Corporation, solely to the extent of its undistributed assets, specifically including the remaining limits of its available liability coverage under liability insurance policies covering it and its officers and directors; SPRUCE RUN COAL COMPANY, a dissolved West Virginia Business Corporation, solely to the extent of its undistributed assets, specifically including the remaining limits of its available liability coverage under liability insurance policies covering it and its officers and directors; HAROLD WARD, in his official capacity as the Cabinet Secretary of the West Virginia Department of Environmental Protection, an instrumentality of the State of West Virginia, Defendants.
• Court: U.S. District Court — Southern District of West Virginia

LIVING LANDS, LLC, a West Virginia Limited Liability Company, D. C. CHAPMAN VENTURES, INC. a West Virginia Business Corporation, Plaintiffs, v. JACK CLINE, an Individual West Virginia Resident; BRADY CLINE COAL CO., a dissolved West Virginia Business Corporation, solely to the extent of its undistributed assets, specifically including the remaining limits of its available liability coverage under liability insurance policies covering it and its officers and directors; SPRUCE RUN COAL COMPANY, a dissolved West Virginia Business Corporation, solely to the extent of its undistributed assets, specifically including the remaining limits of its available liability coverage under liability insurance policies covering it and its officers and directors; HAROLD WARD, in his official capacity as the Cabinet Secretary of the West Virginia Department of Environmental Protection, an instrumentality of the State of West Virginia, Defendants.

Civil Action No. 3:20-0275

United States District Court, S.D. West Virginia, Huntington Division

February 21, 2023

MEMORANDUM OPINION AND ORDER

ROBERT C. CHAMBERS UNITED STATES DISTRICT JUDGE

Pending before the Court is Defendant Harold Ward's Motion for Summary Judgment on all remaining counts against him. ECF No 95. For the reasons below, the Court GRANTS this Motion. Id.

BACKGROUND

The instant suit alleges a series of environmental violations pertaining to the Subject Property. See Am. Compl., ECF No 41. The Subject Property is located within the Right Fork Spruce Run Watershed in Nicholas County, West Virginia. Id. ¶ 1; Def. Harold Ward's Answer to Am Compl. ¶ 1, ECF No. 73. Plaintiffs comprise the owners in fee simple of the Subject Property, D.C. Chapman Ventures. Inc., and Living Lands, LLC, a real estate investment management, and redevelopment company that obtained the option to purchase fee simple title to the property in 2019 Am. Compl. ¶¶ 14-17, ECF No. 41. Defendant operators-Jack Cline, Brady Cline Coal Co., and Spruce Run Coal Co. (Coal Mining Defendants)-conducted underground and related above-ground coal mining activities at the site from approximately the 1960s to the 1990s. Am. Compl. ¶¶ 1-2. After Defendant operators ceased operations without complying with environmental and mining permits, they forfeited their reclamation bonds, leaving the West Virginia Department of Environmental Protection (WVDEP) to reclaim the site. Id. ¶ 31; Answer to Am. Compl. ¶ 31, ECF No. 73.

While the site has been owned in fee simple by Plaintiff D.C. Chapman Ventures, Inc. since 1999, the WVDEP has been conducting and continues to conduct reclamation activities there. Am. Compl. ¶ 1, ECF No. 41; Def. Harold Ward's Answer to Am. Compl. ¶ 1, ECF No. 73. This reclamation is performed pursuant to WVDEP's authority under the West Virginia Surface Coal Mining and Reclamation Act (WVSCMRA), W.Va. Code § 22, Art. 3, and the West Virginia Abandoned Mine Lands and Reclamation Act (WVAML), W.Va. Code § 22, Art. 2. Am. Compl. ¶ 1. The instant Motion addresses only the counts alleged against Defendant Harold Ward, Cabinet Secretary of the WVDEP, in relation to the agency's ongoing reclamation at the Subject Property. Id. ¶ 23; Def. Harold Ward's Mot. for Summ. J., ECF No. 95. Plaintiffs' claims against Defendant Ward originally included alleged violations of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9607(a) and 9613(g) (Count I); the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6972(a)(1)(A) and (B) (Counts II and III, respectively); the Clean Water Act (CWA), 33 U.S.C. § 1365 (Count IV); common law per se public nuisance (Count V); and common law public nuisance (Count VI). Am. Compl., ECF No. 41.

Plaintiffs allege that Defendant Ward, along with Coal Mining Defendants, caused or contributed to the release of contaminants into the subsurface soils, groundwater, and surface waters of the watershed encompassing Surface Property, thereby introducing toxic contaminants at levels that present an imminent and substantial danger to human health or the environment. Am. Compl. ¶ 2, ECF No. 41. Specifically, they claim the WVDEP uses unlined surface impoundments to hold acid mine drainage (AMD); collects AMD-contaminated leachate and surface runoff in unlined ditches; and places sludge contaminated with AMD into unlined drying pits. Id. ¶¶ 37, 47, 50-51. They claim that these “open dumps” on the Subject Property have created AMD that flows into the Right Fork Spruce Run and the Spruce Run Watersheds. Because the WVDEP has not taken adequate steps to contain waste materials, Plaintiffs allege that this movement of material violates the CWA and RCRA. Id.

The unlined structures at issue comprise two ditches, several surface impoundments (one “original” and two allegedly created by WVDEP), and a number of drying pits. Plaintiffs claim the three surface impoundments are located within Right Fork Spruce Run. Id. ¶ 52. Ditch 1 is similarly connected to the waterway, as it flows into a surface impoundment created by Coal Mining Defendants sometime during the 1960s and which the WVDEP still uses to treat influent AMD. Id. ¶ 40. Influent in Ditch 1 and the corresponding impoundment discharge through an outfall permitted by the National Pollutant Discharge Elimination System (NPDES) program of the CWA.^[1] Id. It is not disputed that WVDEP has complied with the applicable NPDES permit while reclaiming the site. Mem. of Law in Supp. of Def. Harold Ward's Mot. for Summ. J. at 2, ECF No. 96. However, they argue that not all influent is drained through this outfall, as some influent moves from the unlined structures into groundwaters within the subject watershed. Am. Compl. ¶ 40, ECF No. 41.

While the parties agree on the source of Ditch 1, there has been more debate as to the origins of Ditch 2. Plaintiffs claim that Ditch 2 discharges into the groundwater within the subject watershed via seepage. Id. ¶ 41. Ditch 2 is not currently, nor has it ever been, the subject of the NPDES permit. Pls.' Resp. in Opp. to Def. Sec. Harold Ward's Mot. for Summ. J. at 8, ECF No. 103. However, Defendant Ward claims that “Ditch No. 2 contains discharge from a pre-SMCRA (pre-law) mine site for which WVDEP has no permitting obligation.” Reply in Supp. of Def. Harold Ward's Mot. for Summ. J. at 11, ECF No. 108. Conversely, in their Notice of Violation, Plaintiffs note that the ditch runs along a pre-existing haul road but has likely been modified by WVDEP. Notice of Violation at 5, ECF No. 41-2. Later, Plaintiffs allege that “it is undisputed that WVDEP constructed Ditch No. 2 at this site to convey AMD from seeps at an improperly sealed mine portal.” Pls.' Resp. in Opp. to Def. Sec. Harold Ward's Mot. for Summ. J. at 28, ECF No. 103. Plaintiffs claim that WVDEP has therefore constructed and is currently operating the ditch. Id. at 8, 28; Pls.' Surreply in Further Opp. to Def. Sec. Harold Ward's Mot. for Summ. J. at 24, ECF No. 117 (“Ditch No.2 [sic] . . . was constructed at the site by Defendant Secretary Ward's agents or employees.”).

Ultimately, Plaintiffs allege that seepage from Ditches 1 and 2, the impoundments, and drying pits form a “comingled, single plume of mine waste” within the groundwater aquifer at a point upgradient from Right Fork Spruce Run. Am. Compl. ¶ 48, ECF No. 41. Any seepage, they argue, discharges into the Right Fork Spruce Run and constitutes the functional equivalent of a direct discharge to surface waters for purposes of the CWA. Id. ¶¶ 40-41. They allege that seepage to Right Fork Spruce Run impairs Spruce Run and Muddlety Creek, both of which are waters of the United States under the CWA. Id. ¶ 48.

On March 15, 2021, Defendant Ward moved to dismiss all counts against him for failure to exhaust administrative remedies and failure to state a claim. Sec. Harold Ward's Mot. to Dismiss, ECF No. 44. The Court granted this Motion in part and denied it in part, dismissing only Counts I (CERCLA), V (public nuisance per se), and VI (public nuisance). Mem. Op. and Order at 27, ECF No. 72. On September 30, 2022, Defendant Ward moved for summary judgment on all remaining counts. Def. Harold Ward's Mot. for Summ. J., ECF No. 95. Several weeks later, on October 17, 2022, Plaintiffs moved to file a second amended complaint, noting that the Amended Complaint referenced an inapplicable maximum contaminant level (MCL) for beryllium. Pls.' Mot. for Leave to File Second Am. (i.e., Corrected) Compl., ECF No. 100. Plaintiffs acknowledged that, in the Amended Complaint, they had referred to an MCL for beryllium under appendix I of RCRA, when they should have referenced the MCL for beryllium under the Safe Drinking Water Act.^[2] Id. at 3-7.

The Court denied Plaintiffs leave to amend the Amended Complaint because the request to do so was well after the close of discovery and would unduly prejudice Defendant Ward. ECF No. 115.

However, following a full briefing, the Court did grant Plaintiffs leave to file a surreply to the motion for summary judgment. Pls.' Surreply in Further Opp. to Def. Sec. Harold Ward's Mot. for Summ. J., ECF No. 117. In doing so, the Court also granted Defendant Ward leave to file a surrebuttal. Def. Ward's Supplemental Mem. in Supp. of Summ. J., ECF No. 119.

In the instant Motion, Defendant Ward argues for summary judgment as to the three remaining counts against him: specifically Counts II and III under RCRA and Count IV under the CWA. Def. Harold Ward's Mot. for Summ. J., ECF No. 95. Regarding the RCRA claims, Defendant Ward argues that the Bevill amendment to RCRA exempts the waste at issue from the statute's definition of hazardous waste, and that the reclamation activities at the site are further excluded from regulation under RCRA Subtitle D...