United States District Court, N.D. Alabama, Southern Division
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 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 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., 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 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).
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 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 and conduct
surface coal mining and reclamation operations within the
initial term of the permit.” Id. §
1259(a). The regulatory authority may fully release the bond
“[w]hen the operator has completed successfully all
surface coal mining and reclamation activities” and
“all reclamation requirements of this chapter are fully
met.” Id. § 1269(c)(3). Finally,
compliance with the SMCRA does not shield a party from
potential liability under the CWA. See id. at §
1292(a)(3) (“Nothing in this chapter shall be construed
as superseding, amending, modifying or repealing . . . [t]he
Federal Water Pollution Control Act [], as amended, the State
laws enacted pursuant thereto, or other Federal laws relating
to preservation of water quality.”).
III.
FACTUAL AND PROCEDURAL BACKGROUND
In
August 1953, the Maxine Mine began operation as an
underground coal mine pursuant to a contract between the
Alabama By-Products Corporation (ABC), and the Alabama,
Georgia, and Gulf Power Companies. Doc. 50-3 at 41-42, 50-8
at 103-24. The surface portion of this mine was on land
adjacent to the Locust Fork, a navigable-in-fact tributary of
the Black Warrior River. Docs. 53-6 at 24; 53-2 ¶ 8.
Over the course of its operation, the Maxine Mine site
included multiple mining refuse and rock disposal areas.
See doc. 50-1 at 69-73, 119. The mining refuse
pile[2]
at issue in this case was originally created in the early
1950s on a ridge adjacent to the Locust Fork. See
doc. 53-6 at 24, 26; 50-1 at 119. The pile is composed of
coarse rock refuse, coal fragments, sandstone, shale, and
washer rock removed and deposited by ABC during the course of
its operations. See docs. 53-6 at 47; 55-2 at 16;
61-9 ¶ 13. The pile is either geologic overburden, hence
the “GOB” or “GOB pile” reference,
i.e., consisting of rock above or below the mine
coal seams, as defined by Gordon Johnson, doc. 53-6 at 26, or
according to Drummond's expert Lois George, it is
“inter-burden, ” doc. 61-9 ¶ 13; 54-14 at
18, which BWR's expert Johnson explains consists of rock
“within the mined seams, ” doc. 53-6 at 26.
Over
the course of the operation of Maxine Mine, ABC repeatedly
worked with state regulators and environmental consultants to
address the ongoing issue of acidic water that discharged
from the refuse pile into the Locust Fork. See docs.
55-3 at 2; 55-4 at 2; 55-5 at 2; 55-1 at 28; 53-1 at 23;
55-21 at 5. For instance, in 1979, pursuant to the SMCRA, the
Alabama Surface Mining Reclamation Commission (ASMRC, later
known as ASMC) issued a notice of violation (NOV) to ABC
concerning discharges of water with low pH and elevated iron
and manganese levels from a portion of the refuse pile. Doc.
50-2 at 78-80. ABC subsequently retained environmental
consultants P.E. LaMoreaux & Associates
(“PELA”) to address the NOV, doc. 50-2 at 115-17,
which the ASMC ultimately vacated and referred instead to the
Alabama Water Improvement Commission (AWIC) for action, doc.
50-3 at 77.
In
1982, ABC submitted an application to ASMC for a mining
permit and a supplement to this permit application, which
contained a supplemental permit map featuring a portion of
the refuse pile. See docs. 50-1 at 119; 50-11 at
14-16. In February 1983, ASMC approved ABC's plan for
reclamation of a western portion of the refuse pile, and
ordered ABC to post a bond. Doc. 50-8 at 58. The plan
involved covering the surface of this portion of the refuse
pile with clay, planting vegetation, and constructing a
“diversion ditch” to carry surface-runoff from
the old refuse pile through a sediment basin and into the
Locust Fork. See doc. 50-1 at 71-72. Subsequently,
ABC reclaimed this portion of the refuse pile (referred to in
ABC and Drummond documents as the “post-law” area
because it post-dated the SMCRA) by capping it with clay,
sloping it, and planting vegetation. Docs. 54-14 at 45; 55-1
at 45. However, the eastern portion of the refuse pile
adjacent to the Locust Fork-referred to as the
“pre-law” area-was never permitted or reclaimed
by ABC or Drummond. See docs. 50-11 at 45; 54-14 at
45.[3]
During
its operation of the mine, ABC installed or improved ditches
that ran through the refuse pile, and constructed basins and
dams, as part of a drainage system from the refuse pile. Doc.
61-9 ¶ 20. Specifically, ABC built two dams, one
upstream of the other, and sediment basins upstream of each
dam to capture sediment from the refuse area. Docs. 53-1 at
30-32; 54-14 at 24-25; see docs. 53-6 at 74; 55-11;
55-12. These dams and sediment basins were built over an
intermittent stream that discharged into the Locust Fork, a
stream that BWR refers to as “Tributary 1” or
“T1.” Doc. 53-6 at 74; see docs. 55-1 at
15, 17; 55-17 at 2; 54-14 at 24-25; 55-12. At least as far
back as 1946, a slough existed at the confluence of this
stream and Locust Fork and, by 1975, this stream had
intermittent flow. See docs. 53-6 at 31; 54-1 at
21-22; 54-3 at 20; 61-9 ¶ 11; 54-3 at 20; 61-9 ¶
11(b).
In
September 1983, ABC ceased coal mining operations at Maxine
Mine. Doc. 50-2 at 100. Thereafter, in March 1985, ASMC
issued an order stating that ABC had “substantially
completed reclamation” at the “old coal
processing waste disposal area” and that ABC's
“corrective action and reclamation activities have
effectively eliminated any contribution of non-permissible
effluent” from the area, but that “there remains
remedial corrective action necessary . . . on certain
areas.” Doc. 50-8 at 52. ABC subsequently merged with
Drummond, making Drummond the permittee for the mine and the
“post-law” portion of the refuse pile.
See doc. 55-1 at 29, 31-32; 50-3 at 43, 68. Finally,
ASMC approved a final bond release for Drummond's permit
for the mine in May 1992. Doc. 50-9 at 2-3.
In
1988, ADEM reissued an existing NPDES permit to Drummond,
which covered an outfall in the refuse pile that discharged
to an “unnamed tributary of Locust Fork.” Doc.
50-4 at 41; 55-24. In June 1992, ASMC granted final Phase II
and III bond release for the permitted section of the mine
site. Docs. 50-9 at 1-2; 50-4 at 29-30. Then, in July 1992,
ADEM released Drummond from monitoring requirements under its
NPDES permit. Doc. 50-4 at 27. In March 1993, ADEM inspected
the mine and did not find any “deficiencies or
violations, ” stating in its reports that the
“site appears to be totally reclaimed, ” there
was “no discharge at the time of inspection, ”
and that “no deficiencies or violations were
noted.” Doc. 50-5 at 32-33. Since 1992, Drummond has
not obtained a permit for the mine site, nor has it performed
any maintenance or monitoring of the site. See doc.
53-1 at 39-40, 45. Since at least 2009, Drummond employees
and other residents of the surrounding areas have used the
site for hunting. Doc. 50-11 at 11.
The
ditches, dams, and basins at the refuse pile ABC constructed
still exist today. Doc. 53-6 at 73-76; see doc. 61-9
¶ 20. Currently, the upper and lower sediment basins
above the lower dam contain sediment, some of which
originated from the refuse area. See docs. 53-1 at
29, 33; 54-14 at 17, 24.[4] Each dam has an outlet or
“spillway”: the outlet of the upper dam allows
surface water to move to the lower sediment basin, and the
outlet of the lower dam allows surface water to discharge to
the Locust Fork. Doc. 53-1 at 31, 32, 34; see doc.
55-1 at 17. Man-made ditches drain surface runoff from both
the “post-law” and “pre-law” portions
of the refuse pile. See doc. 53-6 at 73-74. Surface
water also percolates into sediment in the basins and flows
as groundwater, where it discharges to the Locust Fork via
groundwater seeps. Doc. 53-6 at 74, 78.
This
lawsuit's origins may trace back to May 2006, when Nelson
Brooke, the “Riverkeeper” for BWR, first
identified discolored riprap at the spillway of the lower dam
to the Locust Fork and took readings that revealed acidic pH
levels at the site. Doc. 50-10 at 3, 25. Brooke took no
further action with these samples. See Doc. 53-2
¶ 11. Instead, Brooke obtained additional samples of
discharges at the lower dam spillway in February 2007,
October 2011, and four years later in June 2015. Docs. 53-2
¶¶ 13-15; 50-10 at 25-26. Thereafter, on June 29,
2016, BWR issued its notice of intent to sue Drummond for
violations of the CWA and RCRA. Doc. 24, Ex. A. After the
sixty-day notice period, BWR filed this citizen suit alleging
CWA violations and, after the ninety-day notice period,
amended its complaint to allege RCRA violations. Docs. 1; 21.
As a result of the lawsuit, BWR conducted field
investigations with Drummond representatives to obtain
surface water, groundwater, and sediment samples in September
2016 and August 2017, and conducted a site inspection in June
2017. See docs. 56-1 ¶¶ 7-8; 56-3 at 44.
IV.
ANALYSIS
The
court turns now to the parties' respective contentions.
Basically, BWR pleads four claims: (1) unpermitted discharges
under CWA § 402 (Count I), (2) unpermitted discharges of
dredged or fill material under CWA § 404 (Count II), (3)
unpermitted discharges containing both “contaminated
water” and dredged or fill material under CWA
§§ 402 and 404 (Count III), and (4) a RCRA
endangerment claim (Count IV). Presently 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 its CWA § 402 claim (Count I) and RCRA
claim (Count IV), doc. 51. The court addresses these motions,
beginning with Count I on which both parties have moved for
summary judgment.
A.
Alleged Violation of CWA § 402-Count I
In
Count I, BWR asserts that Drummond has violated CWA §
402 through unpermitted discharges to Locust Fork, “T1,
” and the “east” and “west”
ditches. To prevail on this claim, BWR must show that
Drummond (1) discharged; (2) a pollutant; (3) into waters of
the United States (“WOTUS”); (4) from a point
source; (5) without a permit.[5] See Parker, 386 F.3d at
1008. As to these elements, the parties do not dispute that
Drummond has not had an NPDES permit since at least 1993,
see doc. 50-4 at 91, and that Locust Fork, a
navigable-in-fact tributary of the Black Warrior River,
qualifies as a WOTUS. See docs. 27 ¶ 23; 53-2
¶ 8; 59 at 3; SWANCC v. U.S. Army Corps of
Engineers, 531 U.S. 159, 172 (2001) (holding that WOTUS
includes waters that are or have been “navigable in
fact, or which could reasonably be so made.”). All
other elements of the claim, including whether T1 is a WOTUS,
are in contention.
1.
Discharge of a pollutant
The
first element requires a showing of a discharge of a
pollutant. Parker, 386 F.3d at 1008. The CWA defines
“discharge of a pollutant” as “any addition
of any pollutant to navigable waters from any point
source.” 33 U.S.C. § 1362(12)(A). BWR contends
that Drummond has discharged pollutants because “acid
mine drainage” (“AMD”)[6] and sediment flow
from the refuse pile into Locust Fork, “T1, ” and
the “east” and “west” ditches. Doc.
52 at 27. Although the Act's definition of
“pollutant” does not explicitly include AMD,
numerous courts have found that AMD is a pollutant and
Drummond does not contest that proposition.[7] See,
e.g., Comm. to Save Mokelumne River v. E. Bay
Mun. Util. Dist., 13 F.3d 305, 309 (9th Cir. 1993)
(finding that AMD was a pollutant); Beartooth Alliance v.
Crown Butte Mines, 904 F.Supp. 1168, 1172 (D. Mont.
1995) (finding that AMD was a pollutant because it was
composed, in part, of copper and zinc); W.Va. Highlands
Conservancy, Inc. v. Huffman, 651 F.Supp.2d 512, 518
(S.D. W.Va. 2009) (finding AMD constituted
“pollution” under the Act). Moreover, sediment
from the mining refuse pile appears to qualify as
“rock” or “sand” and, therefore, is
also a “pollutant” under the Act. See,
e.g., Driscoll v. Adams, 181 F.3d 1285,
1291 (11th Cir. 1999) (finding that “sand and
silt” from timber harvesting and land development were
pollutants); Rybachek v. U.S.E.P.A., 904 F.2d 1276,
1285-86 (11th Cir. 1990) (finding reasonable EPA's
interpretation that excavated dirt was pollutant); N.C.
Shellfish Growers Ass'n v. Holly Ridge Assocs.,
LLC., 278 F.Supp.2d 654, 677 (E.D. N.C. 2003) (finding
that sediment is a pollutant under the CWA).
BWR has
produced extensive evidence of historical and ongoing
discharges of AMD from the refuse pile into Locust Fork. This
evidence includes, first, ABC's correspondence with state
regulators and numerous reports produced by ABC's
consultants, PELA, during the late 1970s and 1980s which
describe acid water discharges from the refuse
pile.[8] Second, according to BWR's expert,
Gordon Johnson, the acid-based accounting analysis of his
soil/sediment samples taken from various locations at the
refuse pile indicate that “[a]ll mine waste samples are
acidic and acid-generating.” Doc. 54-7 at 4. His
conclusion is based, in part, on evidence showing that total
sulfide concentrations in the samples were “below the
method detection limit, which indicates the acidification
process is either well progressed or complete in the samples
that were collected.” Doc. 54-3 at 35. Third, BWR
collected numerous surface water, sediment, and groundwater
samples in 2016 and 2017 from various locations at the site,
which its experts, Johnson, Anthony Brown, and Barry Sulkin,
contend reveal AMD discharges based on the elevated
concentrations of numerous metals and low pH in the samples.
See doc. 53-6 at 60-61, 76, 79; 54-3 at 25-30; 56-1
at 3-8.[9] In particular, samples of surface water
taken below the lower dam that runs into Locust Fork on
September 20, 2016, June 12, 2017, and August 1, 2017,
contain elevated concentrations of metals and acidic pH
levels that Brown and Johnson contend are associated with
AMD. Doc. 53-6 at 76. Sulkin also opines that surface water
samples, taken near the spillway of the lower dam in
September 2016, reflect low pH and “elevated”
levels of various metals “far in excess of what would
be coming from the unpolluted stream that once flowed
there.” Doc. 56-2 at 6-8. Finally, the water samples
taken from below the lower dam in 2016 and 2017 have higher
metal concentrations and more acidic pH levels than the
background samples from Locust Fork. Doc. 53-6 at 75, 90,
94-96. This evidence is sufficient to establish that AMD
discharged from the site into the Locust Fork in September
2016, June 2017, and August 2017.[10]
To no
surprise, as one would expect when complex science matters
are in issue, Drummond's experts Lynn Sisk, Bruce
Wielinga, and Lois George disagree with BWR's experts,
and contend that the data does not show AMD discharges.
Specifically, Sisk contends that AMD is not discharging from
the lower dam at the site because AMD “usually has some
subsurface component associated with it, ” and she
asserts that only “surface runoff” is discharging
over the lower dam. Doc. 50-14 at 17-18. This contention does
not alter the court's finding because Sisk admits that
she did not take any water or soil samples from the refuse
pile to support her conclusion that AMD could not flow over
the lower dam. Id. at 18. For his part, Wielinga
contends that findings that sulfide was below the analytical
detection limit in Johnson's soil/sediment samples means
that there are no “sulfide-bearing minerals” in
the “GOB [geologic overburden] waste” that could
generate AMD. See docs. 61-6 ¶ 5; 61-32 at
27-28. Critically, however, Wielinga fails to contest
Johnson's explanation that the lack of sulfide indicates
the oxidation process that generates AMD is complete. Lastly,
Drummond, through its expert George, contends that Brown
cannot fairly and accurately testify that surface water
“with elevated concentrations of pollutants associated
with AMD” is ultimately discharged to Locust Fork,
given that storm water runoff is “driven . . . by
precipitation” and BWR's samples were taken from
“essentially standing or stagnant points.” Doc.
61-9 ¶ 28. This contention also does not alter the
court's finding because George and Drummond's other
experts do not dispute the validity of BWR's data showing
the presence of elevated levels of metals and acidic pH in
water samples taken at the lower dam where it discharges into
Locust Fork and along the banks of the Locust Fork below the
dam. In that respect, while Drummond's experts have shown
general weakness in their counterparts' analyses on the
issue of AMD, their showing is insufficient to create an
issue of fact regarding the discharge of AMD into Locust
Fork, a water of the United States. See Walker v.
Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (“A
mere ‘scintilla' of evidence supporting the
opposing party's position will not suffice; there must be
enough of a showing that the jury could reasonably find for
that party.”).
2.
To waters of the United States
To
prevail, BWR must also show that the discharge of a pollutant
was to a WOTUS. As stated previously, Drummond concedes that
the Locust Fork is a WOTUS. At issue as to this element is
BWR's contention that Drummond also discharges alleged
pollutants from the refuse pile to “T1, ” the
“east” ditch, and the “west” ditch
and that each of these water bodies are purportedly
“navigable waters, ” or “waters of the
United States, ” under the CWA. See 33 U.S.C.
1362(7). To address whether “T1” or the ditches
qualify as a navigable water, the court turns to Rapanos
v. United States for guidance. Rapanos involved
wetlands that drained into navigable-in-fact waters, and the
Supreme Court issued a fractured opinion construing the term
“navigable waters.” 547 U.S. 715 (2006). Justice
Scalia's plurality opinion held that wetlands could only
constitute “navigable waters” if (1) they are
adjacent to a “relatively permanent, standing or
continuously flowing [body] of water” and (2) if they
maintained a “continuous surface connection” to
that water. Id. at 739, 742 (plurality). Justice
Kennedy's concurring opinion, however, held that the
applicable test required a showing of a
“‘significant nexus' to waters that are or
were navigable in fact or that could reasonably be made
so.” Id. at 759 (Kennedy, J., concurring).
Subsequently, in United States v. Robison, the
Eleventh Circuit determined that Justice Kennedy's
concurring opinion was controlling for the purposes of
determining whether a creek constituted “navigable
waters” under the CWA. 505 F.3d 1208, 1219-22 (11th
Cir. 2007). Thus, although Rapanos only involved
wetlands, Robison indicates that Justice
Kennedy's “significant nexus” test controls
whether a “water or wetland” qualifies as waters
of the United States, and that this is an issue for the
factfinder. 505 F.3d at 1218, 1224 n.21.
As for
what constitutes a “significant nexus, ” Justice
Kennedy's opinion is instructive:
Wetlands possess the requisite nexus, and thus come within
the statutory phrase “navigable waters, ” if the
wetlands, either alone or in combination with similarly
situated lands in the region, significantly affect the
chemical, physical, and biological integrity of other covered
waters more readily understood as “navigable.”
When, in contrast, wetlands' effects on water quality are
speculative or insubstantial, they fall outside the zone
fairly encompassed by the statutory term “navigable
waters.”
547 U.S. at 781 (Kennedy, J., concurring). Furthermore,
Justice Kennedy's opinion offered examples of the indicia
of a “significant nexus, ” including considering
a “measure of the significance of the connection for
downstream water quality.” Id. at 784.
Accordingly, regardless of whether “T1, ” the
“east” ditch, or the “west” ditch is
or was a tributary of Locust Fork, the dispositive question
is whether “T1” or each ditch significantly
affects the physical, chemical, and biological integrity of
Locust Fork. Id. at 781; see also Robison,
505 F.3d at 1222.
The
“significant nexus” test is a “flexible
ecological inquiry into the relationship between the [waters]
at issue and traditional navigable waters.”
See Precon Dev. Corp. v. U.S. Army Corps of
Engineers, 633 F.3d 278, 294 (4th Cir. 2011) (quoting
Rapanos, 547 U.S. at 759 (Kennedy, J., concurring)).
The requisite connection can be established by quantitative
or qualitative physical evidence. See id.
(deciding whether there was “enough physical
evidence-quantitative or qualitative” to uphold a
finding of a “significant nexus”); United
States v. Cundiff, 555 F.3d 200, 210-11 (6th Cir. 2009).
However, the Fourth Circuit has observed:
[I]n announcing this test, [Justice Kennedy] clearly intended
for some evidence of both a nexus and its significance to be
presented. Otherwise, it would be impossible to engage
meaningfully in an examination of whether a wetland had
“significant” effects or merely
“speculative or insubstantial” effects on
navigable waters.
Precon, 633 F.3d at 294.
Justice
Kennedy's concurrence left open the possibility that an
intermittent stream can constitute a WOTUS, noting:
[E]ven granting the plurality's preferred definition, . .
. the dissent is correct to observe that an intermittent flow
can constitute a stream, in the sense of a current or course
of water or other fluid, flowing on the earth, while it is
flowing. It follows that the Corps can reasonably interpret
the Act to cover the paths of such impermanent streams.
Rapanos, 547 U.S. at 770 (Kennedy, J., concurring).
Accordingly, courts applying the “significant
nexus” test have found that intermittent streams may
have a sufficient nexus to traditional navigable waters to
constitute WOTUS. See Wis. Res. Prot. Council, Ctr. for
Biological Diversity v. Flambeau Min. Co., 903 F.Supp.2d
690, 715 (W.D. Wis. 2012) (finding that a tributary with
intermittent flow satisfied the “significant
nexus” test); United States v. HVI Cat Canyon,
Inc., 314 F.Supp.3d 1049, 1060-61 (C.D. Cal. 2018)
(finding that non-perennial tributaries were “navigable
waters”). Moreover, several courts considering whether
waterways qualify as WOTUS have found that the downstream
transport of pollutants from the water at issue into a
traditional navigable water is indicative of a significant
nexus. See Cundiff, 555 F.3d at 211 n.4 (“[I]f
one dropped a poison into the [defendants'] wetlands, . .
. it would find its way to the two creeks and the Green
River, therefore indicating a significant chemical, physical,
or biological connection between the wetlands and the nearby
navigable-in-fact waters.”); United States v.
Hubenka, 438 F.3d 1026, 1034 (10th Cir. 2006)
(“[T]he potential for pollutants to migrate from a
tributary to navigable waters downstream constitutes a
‘significant nexus' between those waters.”);
Flambeau Min. Co., 903 F.Supp.2d at 715 (finding
“significant nexus” in part because intermittent
stream delivered water containing pollutants to
navigable-in-fact river); United States v. Vierstra,
803 F.Supp.2d 1166, 1172 (D. Idaho 2011), aff'd,
492 Fed.Appx. 738 (9th Cir. 2012) (finding “significant
nexus” where canal and creek were “significant
contributors of total suspended solids (sediment) and
coliform bacteria to the Snake River”). With this
background in mind, the court turns now to the parties'
respective contentions about “T1” and the
ditches.
a)“Tributary
1” ...