U.S. v. Gulf States Steel, Inc.

• Decision Date: 08 June 1999
• Docket Number: No. CV-97-BU-2755-M.,CV-97-BU-2755-M.
• Citation: 54 F.Supp.2d 1233
• Parties: UNITED STATES of America, Plaintiff, and Jerry Williams, L.E. McGriff, and Herbert Patterson, Intervenors, v. GULF STATES STEEL, INC., Defendant.
• Court: U.S. District Court — Northern District of Alabama

Page 1233

54 F.Supp.2d 1233

UNITED STATES of America, Plaintiff and Jerry Williams, L.E. McGriff, and Herbert Patterson, Intervenors, v. GULF STATES STEEL, INC., Defendant.

No. CV-97-BU-2755-M.

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

June 8, 1999.

COPYRIGHT MATERIAL OMITTED

G. Douglas Jones, U.S. Attorney, Herbert J. Lewis, III, Assistant U.S. Attorney, U.S. Attorney's Office, Birmingham, Alabama, Brian D. Israel, U.S. Dept. of Justice, Environmental Enforcement Section, Environment & Natural Resources Division, Washington, DC, Lois J. Schiffer, U.S. Dept. Justice, Environment & Natrural Resources, Wildlife & Marine Resources Section, Washington, DC, for U.S.

Byron Bart Slawson, Birmingham, AL, Gary P. Cody, Gary P. Cody PC, Birmingham, AL, for LE McGriff, Herbert Patterson.

H. Thomas Wells, Jr., J. Alan Truitt, Maynard Cooper & Gale, Birmingham, AL, Susan G. Braden, Baker & McKenzie, Washington, DC, for Gulf States Steel Inc.

Memorandum Opinion

BUTTRAM, District Judge.

The United States brought this action on behalf of the Administrator of the Environmental Protection Agency ("EPA") against Gulf States Steel, Inc. ("GSSI"), alleging violations of the Federal Water Pollution Control Act, also known as the Clean Water Act ("FWPCA" or "Clean Water Act"), 33 U.S.C. § 1251, et. seq. Jerry Williams, L.E. McGriff, and Herbert Patterson intervened in the action, aligned on the plaintiff's side. Now before the Court are cross-motions for partial summary judgment, filed by the United States and GSSI. In its motion, the United States seeks an Order holding that GSSI is liable for 1000 violations of its National Pollution Discharge Elimination System ("NPDES") permit from May 1, 1995 to September 30, 1998, comprising 4,290 days of violation. (Doc. 43). GSSI responds that the partial summary judgment sought by the United States does not lie against it because a substantial number of GSSI's permit violations were caused, GSSI contends, by "single operational upsets" that should be counted as a single violation under 33 U.S.C. § 1319(d). In addition, GSSI argues in its motion for partial summary judgment that it is entitled to an Order holding that the United States cannot bring an enforcement action under the Clean Water Act for a substantial number of other alleged violations, which are based upon permit effluent limitations for outfalls located along GSSI's internal wastewater treatment system. (Doc. 51). The United States and GSSI have briefed their cross-motions and filed evidence in support of their respective positions. The motions are now ripe for decision, and, upon due consideration, the Court concludes that the United States motion for partial summary judgment on the issue of GSSI's liability for the 1000 violations, comprising 4,290 days of violation, is due to be GRANTED, and the GSSI motion for partial summary judgment is due to be DENIED.

SUMMARY JUDGMENT STANDARD

Summary judgment provides the parties an invaluable opportunity to test the mettle of a case before it ever reaches trial. On a motion for summary judgment, the court assesses all of the proof the parties can bring to bear in order to ascertain whether a genuine need for trial is present. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Summary judgment is weighed heavily in favor of the non-movant; it is appropriate only if the court concludes that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c). See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A party seeking summary judgment has the initial responsibility of informing this court of the grounds for its motion and specifically identifying those portions of the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits that it believes demonstrate the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. 2548. The movant's burden is not meager; it must illuminate for the court the reasons why the non-movant cannot raise a genuine issue of material fact sufficient to support a trial.

Once the moving party has satisfied this initial burden, however, the nonmoving party "must make a sufficient showing to establish the existence of each essential element to that party's case, and on which that party will bear the burden of proof at trial." Howard v. BP Oil Company, 32 F.3d 520, 523 (11th Cir.1994). Rule 56(e) requires the nonmoving party to "go beyond the pleadings" and by "affidavits, or by the `depositions, answers to interrogatories, and admissions on file' designate `specific facts'" showing there exist genuine issues for trial. Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Cottle v. Storer Communication, Inc., 849 F.2d 570, 575 (11th Cir.1988). "Tenuous insinuation" and empty speculation based on loose construal of the evidence will not satisfy the nonmovant's burden. Cf. Mesnick v. General Elec. Co., 950 F.2d 816, 820 (1st Cir.1991), cert. denied, 504 U.S. 985, 112 S.Ct. 2965, 119 L.Ed.2d 586 (1992).

While the court may consider the offered "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any" in deciding whether to grant or deny a summary judgment motion, FED.R.CIV.P. 56(c), the Rule "saddles the non-movant with the duty to `designate' the specific facts in the record" supporting its claims. Jones v. Sheehan, Young & Culp, P.C., 82 F.3d 1334, 1338 (5th Cir.1996). "Rule 56 ... does not impose upon the district court a duty to survey the entire record in search of evidence to support a non-movant's opposition." Id.See also Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.) (en banc) ("There is no burden upon the district court to distill every potential argument that could be made based upon the materials before it on summary judgment."), cert. denied, 516 U.S. 817, 116 S.Ct. 74, 133 L.Ed.2d 33 (1995).

In resolving whether a given factual dispute requires submission to a jury, the court must inspect the presented evidence through the looking glass of each party's substantive evidentiary burden. Anderson, 477 U.S. at 254-55, 106 S.Ct. 2505. The court, however, must avoid weighing conflicting evidence for probity or making credibility determinations. Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th Cir.1992). "It is not part of the court's function, when deciding a motion for summary judgment, to decide issues of material fact, but rather decide whether such issues exist to be tried. The Court must avoid weighing conflicting evidence or making credibility determinations." Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913, 919 (11th Cir.1993). At the same time, "[t]he nonmoving party must provide more than a mere scintilla of evidence to survive a motion for judgment as a matter of law; `there must be a substantial conflict in evidence to support a jury question.'" Tidwell v. Carter Products, 135 F.3d 1422, 1425 (11th Cir.1998) (citing Carter v. City of Miami, 870 F.2d 578, 581 (11th Cir.1989)).

The Court will now proceed to consider the application of the foregoing standards to the evidence presented in this case.

BACKGROUND & FACTS¹

Congress passed the Clean Water Act in order "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251. To that end, the Clean Water Act prohibits the discharge of pollutants into the navigable waters of the United States, unless one of several exceptions applies. 33 U.S.C. § 1311(a). One such exception is where a polluter has been issued an NPDES permit. 33 U.S.C. § 1342. Once issued, the permit defines the holder's obligations under the Act. A state agency may be given the authority to administer the NPDES permit system if the state regulatory scheme meets certain criteria, § 1342(b), although the EPA retains the ability to veto the issuance of a proposed state permit, § 1342(d)(2). Alabama has established an EPA-approved program whereby the Alabama Department of Environmental Management ("ADEM") is responsible for issuing NPDES permits in Alabama, pursuant to the Alabama Water Pollution Control Act ("AWPCA"), §§ 22-22-1, et seq. See §§ 22-22-9(g), § 22-22A-5(10), Ala.Code 1975; Ala.Admin.Code R. 335-66-.01. The holder of a state NPDES permit is subject to both federal and state enforcement for failure to comply with its terms. 33 U.S.C. §§ 1319, 1342(b)(7), 1342(i).

GSSI owns and operates an integrated steel manufacturing facility (the "facility") in Gadsden, Alabama. GSSI was formed on or about April 21, 1995, in order to receive the assets of the facility, acquired by new owners.² As a result of the facility's operation, GSSI discharges various pollutants into Black Creek, which the parties agree is a navigable water of the United States in Etowah County, Alabama. GSSI is thus subject to the Clean Water Act. On December 4, 1987, ADEM issued an NPDES permit ("the 1987 permit") to GSSI's predecessor in interest as owner and operator of the facility. The 1987 permit was effective from its date of issuance until December 3, 1992, and it authorized the operator of the facility to discharge pollutants into Black Creek from a single outfall, 001. Under the 1987 permit, the discharger was required to monitor this outfall for various characteristics, including pH and temperature, and for the concentration of certain pollutants, such as dissolved oxygen, total suspended solids, ammonia nitrogen, and zinc; the discharger was to submit the results in monthly discharge monitoring reports ("DMRS") to ADEM. In addition, the 1987 permit required the discharger to abide by certain effluent limitations, restricting the concentration of specified pollutants from outfall 001.

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