Courtland Company, Inc. v. Union Carbide Corporation (Courtland III)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

AT CHARLESTON

THE COURTLAND COMPANY, INC.,

Plaintiff,

v. Civil Action No. 2:21-cv-00101

Civil Action No. 2:21-cv-00487

UNION CARBIDE CORPORATION,

Defendant.

MEMORANDUM OPINION AND ORDER

Pending in Civil Action Nos. 2:21-cv-00101 (“Courtland

III”) and 2:21-cv-00487 (“Courtland IV”) is defendant Union

Carbide Corporation’s (“UCC”) consolidated motion for summary

judgment. ECF No. 152 (Courtland III); ECF No. 68 (Courtland

IV). Inasmuch as Courtland III and Courtland IV have been

consolidated, all docket numbers hereinafter shall be made in

reference to Courtland III unless otherwise stated.

I. Background

A thorough factual background of Courtland III and

Courtland IV, including the parties’ competing versions of

events, can be found in the court’s order concerning the

parties’ summary judgment motions filed in the related actions,

Courtland I (Civil Action No. 2:18-cv-01230) and Courtland II

(Civil Action No. 2:19-cv-00894). The court need not repeat

them here and incorporates that background herein.

For reference in this memorandum opinion and order,

the court recounts the following. The parties are corporations

owning adjoining parcels of real property near Davis Creek in

Kanawha County, West Virginia. Plaintiff The Courtland Company,

Inc. (“Courtland”), is the owner of one of the parcels (the

“Courtland Property”). UCC is the owner of two of the sites at

issue in these two consolidated matters: the Filmont Landfill

(“Filmont” or “Filmont Site”) and the Massey Railyard, which are

separate sites but share the same parcel.

The image below, provided to the court by the parties,

sets forth the relevant positioning of Filmont, Massey Railyard,

and the Courtland Property. It is noted that Davis Creek flows

generally south to north and into the Kanawha River. The

Southern Drainage Ditch is a tributary of Davis Creek. The

Northern Drainage Ditch is a tributary of Ward Brach, which is a

tributary of Davis Creek.

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On February 9, 2021, Courtland instituted Courtland

III by filing a complaint alleging that pollutants at Filmont

and the Massey Railyard discharge, without a required federal or

state permit, from seeps into the waters of the United States

and West Virginia, namely, Davis Creek and its tributary, Ward

Branch. Courtland further alleged that seepage and untreated

stormwater collected at Filmont and the Massey Railyard

discharge directly or indirectly into Davis Creek and that such

discharges have been continuously occurring for over thirty (30)

years without a permit said to have been required by federal

statute and regulation.

Based on these allegations, Courtland asserts two

claims for citizen-suit relief pursuant to Section 505 of the

Clean Water Act, 33 U.S.C. § 1365 (“Clean Water Act” or the

“Act”). Specifically, Count I (the north prong) in Courtland

III seeks relief based on UCC’s alleged ongoing unpermitted

discharges of pollutants from Filmont into nearby navigable

waters in violation of Sections 301 and 402 of the Clean Water

Act, and Count II (the south prong) seeks relief based on UCC’s

alleged unpermitted discharges of pollutants from Filmont and

the Massey Railyard into nearby navigable waters in violation of

Sections 301 and 402 of the Clean Water Act.

The day after instituting Courtland III, Courtland

filed an application for a temporary restraining order (“TRO”)

on February 10, 2021, in Courtland III. The court held a three-

day hearing on the matter on February 26, 2021, March 1, 2021,

and March 2, 2021. UCC subsequently moved to dismiss the

complaint in Courtland III on March 5, 2021.

On April 5, 2021, following the three-day TRO hearing,

the court denied Courtland’s TRO application inasmuch as

Courtland had failed to show that it was likely to succeed on

the merits.1 The court concluded, inter alia, that Courtland had

failed to demonstrate “standing to bring its claims insofar as

(1) its [Count I] claims relate to discharges from the Filmont

Site into Ward Branch and the [N]orthern [D]rainage [D]itch;

[and] (2) its [Count II] claims related to the [Massey]

Railyard;” and the court also denied relief in the form of an

order requiring UCC to apply for a discharge permit. ECF No. 32

at 53.

The court further concluded that while it was

satisfied that Courtland had provided sufficient pre-suit notice

respecting the alleged seep-related discharges associated with

Ward Branch and the Northern Drainage Ditch, Courtland had

failed to satisfy the pre-suit notice requirement with respect

to seep-related discharges associated with the Southern Drainage

Ditch and alleged stormwater discharge. See id. at 62, 67.

On May 13, 2021, the court granted UCC’s motion to

dismiss the complaint in Courtland III for lack of pre-suit

notice insofar as it sought “dismissal of [Courtland’s Count II]

claims to the extent they concern stormwater discharges and

discharges associated with the [S]outhern [D]rainage [D]itch”

1 The court reached this conclusion on threshold issues

asserted by UCC and thus declined to assess the merits of

Courtland’s claims. See ECF No. 32 at 28, n.13.

and denied the motion otherwise. ECF No. 44 at 21-22.

Thereafter, on June 25, 2021, Courtland sought leave to file an

amended complaint in Courtland III, which purportedly cured the

pre-suit notice deficiencies outlined in the court’s opinion

respecting UCC’s motion to dismiss.

Before the court was able to address the motion,

however, Courtland filed an entirely separate action, Courtland

IV, on September 1, 2021. The claims asserted in Courtland IV

are nearly identical to the claims set forth in Courtland III

but are based upon the June 16, 2021, Notice of Violation issued

by Courtland to UCC. Count I (north) seeks relief based on

UCC’s alleged ongoing unpermitted discharges of pollutants from

Filmont into nearby navigable waters, and Count II (south) seeks

relief based on UCC’s alleged unpermitted discharges of seeps

and stormwater associated with industrial activity from Filmont

and the Massey Railyard into nearby navigable waters in

violation of Sections 301(a) and 402(p) of the Clean Water Act.

On March 30, 2022, UCC filed its consolidated motion

for summary judgment as to all of Courtland’s outstanding claims

pursuant to the Clean Water Act asserted in Courtland III and

Courtland IV. UCC Consol. Mot. Summ. J., ECF No. 152. Broadly

speaking, UCC argues that (1) Courtland lacks standing to bring

its Clean Water Act claims, (2) Courtland’s Clean Water Act

claims are time-barred by the five-year limitations period set

forth in the applicable statute of limitations, and (3)

Courtland has failed to support various aspects of its Clean

Water Act claims on evidentiary grounds. See id. Courtland

filed a response on April 13, 2022.2 Courtland Resp., ECF No.

176.

II. Governing Standard

Federal Rule of Civil Procedure 56 provides that

summary judgment is proper where “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(a). The burden is on the nonmoving party to show that there

is a genuine issue of material fact for trial. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “The nonmoving

party must do so by offering ‘sufficient proof in the form of

admissible evidence’ rather than relying solely on the

allegations of her pleadings.” Guessous v. Fairview Prop.

Invs., LLC, 828 F.3d 208, 216 (4th Cir. 2016) (quoting Mitchell

v. Data Gen. Corp., 12 F.3d 1310, 1316 (4th Cir. 1993)). The

2 Courtland’s response also purports to request summary judgment

in its favor. See Courtland Resp. Courtland’s dubious request

was nonetheless untimely and is denied.

Court must “view the evidence in the light most favorable to the

[nonmoving] party.” Tolan v. Cotton, 572 U.S. 650, 657 (2014)

(internal quotation marks omitted); Variety Stores, Inc. v. Wal-

Mart Stores, Inc., 888 F.3d 651, 659 (4th Cir. 2018).

III. Discussion

“The Clean Water Act . . . created a comprehensive

scheme to ‘restore and maintain the chemical, physical, and

biological integrity of the Nation's waters.’” Sanitary Bd. of

City of Charleston v. Wheeler, 918 F.3d 324, 328 (4th Cir. 2019)

(quoting 33 U.S.C. § 1251 (2012)). “Although the primary

responsibility for enforcement [of the Clean Water Act] rests

with the state and federal governments,” the Clean Water Act

also authorizes private citizens to file citizen suits against

persons or entities in violation of the Act. The Piney Run

Preservation Ass’n v. The Cnty. Comm’rs of Carroll Cnty., 523

F.3d 453, 456 (4th Cir. 2008). The court considers UCC’s

summary judgment arguments in turn.

A. Standing

“Article III of the Constitution restricts the federal

courts to the adjudication of ‘cases’ and ‘controversies,’” that

is, a plaintiff must have standing to sue. Friends of the

Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 153

(4th Cir. 2000) (en banc). In addition to Article III, a

plaintiff “must also satisfy any statutory requirements for

standing before bringing suit.” Id. at 155. Because the Clean

Water Act’s citizen standing provision is coextensive with

Article III, standing to bring a citizen suit is analyzed under

the framework for testing Article III standing. See id.; see

also 33 U.S.C. § 1365(g) (defining “citizen”).

The Fourth Circuit, in its seminal environmental

standing case, sets forth the Article III standing framework as

follows:

To meet the constitutional minimum for standing, “[a]

plaintiff must allege personal injury fairly traceable

to the defendant’s allegedly unlawful conduct and

likely to be redressed by the requested relief.” This

formula includes three elements: (1) injury in fact;

(2) traceability; and (3) redressability. The injury

in fact prong requires that a plaintiff suffer an

invasion of a legally protected interest which is

concrete and particularized, as well as actual or

imminent. The traceability prong means it must be

likely that the injury was caused by the conduct

complained of and not by the independent action of

some third party not before the court. Finally, the

redressability prong entails that it must be likely,

and not merely speculative, that a favorable decision

will remedy the injury.

Gaston Copper, 204 F.3d at 154 (citations omitted) (first

quoting Allen v. Wright, 468 U.S. 737, 751 (1984); and then

citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61

(1992)). On a motion for summary judgment, the plaintiff bears

the burden to adduce evidence that, taken as true and drawing

all reasonable inferences in the plaintiff’s favor, satisfy each

of the three Article III standing elements. See Baehr v. Creig

Northrop Team, P.C., 953 F.3d 244, 253 (4th Cir. 2020); see also

Beck v. McDonald, 848 F.3d 262, 270 (4th Cir. 2017).

At the outset, the court notes that the Supreme Court

recognizes standing to sue in environmental cases even for

relatively abstract injuries. To show standing, “a plaintiff

need only show that he used the affected area, and that he is an

individual ‘for whom the aesthetic and recreational values of

the area [are] lessened’ by the defendant’s activity.” Piney

Run Preservation, 268 F.3d at 263 (quoting Sierra Club v.

Morton, 405 U.S. 727, 735 (1972)). The inquiry is often more

straightforward where, as here, the plaintiff has adduced

evidence that, taken as true, he has suffered an injury to

interests in his own real property. See generally Gaston

Copper, 204 F.3d at 154-55.

1. Injury in fact

The injury-in-fact element requires that a plaintiff

“suffer an invasion of a legally protected interest that is

concrete and particularized” and actual or imminent “before he

can bring an action.” Id. at 156 (quotation marks omitted).

The Fourth Circuit posits that “traditional trespass,” id. at

154, and other impingements and diminishments of real property

interests, see id. at 156, are sufficient to satisfy Article

III’s injury-in-fact requirement.

In this case, Courtland argues that “the discharge of

toxic pollutants without a permit, on a property adjacent to a

plaintiff’s property, obviously impacts the plaintiff’s

interests.” Courtland Resp. 30. Courtland points to evidence

it has adduced suggesting that discharge from Filmont and Massey

Railyard naturally flows onto the Courtland Property, and that

such discharge contains pollutants originating from Filmont and

Massey Railyard. See id. at 29-31.

Taking Courtland’s evidence as true, Courtland has

demonstrated an injury in fact. This case bears a close

resemblance to Gaston Copper, where the Fourth Circuit found

that the plaintiff “ha[d] plainly demonstrated injury in fact”

because the plaintiff’s property was “in the path of [the

defendant’s] toxic chemical discharge.” 204 F.3d at 156.

For its part, UCC seems to conflate the standing

inquiry with the merits of Courtland’s Clean Water Act claims.

See UCC Reply 9-13, ECF No. 183. It is well established,

however, that “a court is not required to determine the merits

of the environmental violations alleged when deciding if

standing exists.” Ohio Valley Envtl. Coalition v. Foal Coal

Co., 274 F. Supp. 3d 378, 385 (S.D. W. Va. 2017). The merits

will be taken up below.

2. Traceability

“The traceability prong means it must be likely that

the injury was caused by the conduct complained of and not by

the independent action of some third party not before the

court.” Gaston Copper, 204 F.3d at 154.

Courtland’s argument concerning traceability is

straightforward. Courtland has adduced evidence suggesting that

the portion of its property near the confluence of the Southern

Drainage Ditch and Davis Creek, which is downgradient from

Filmont and is situated between Filmont and the Southern

Drainage Ditch, contains contaminants of the kind discharged

from Filmont and Massey Railyard. See Courtland Resp. 31

(citing McPherson Dep. 37-38, Courtland II ECF No. 381-2; and

Simonton Rep. ¶¶ 72-76, ECF No. 150-64).

Taking this evidence as true, Courtland has shown that

its alleged injuries are fairly traceable to Filmont and Massey

Railyard concerning the Southern Drainage Ditch. Again, this

case bears a close resemblance to Gaston Copper, where the

Fourth Circuit found traceability where the pollutants found on

the plaintiff’s property were the type discharged from the

defendant’s and that the plaintiff’s property was downstream of

the defendant’s. 204 F.3d at 161-62. Likewise, the Courtland

Property is downstream of UCC’s alleged pollutant discharges at

each point where the Southern Drainage Ditch runs along the

boundary between the Courtland Property and either Filmont or

Massey Railyard, and in the area where the Southern Drainage

Ditch traverses the Courtland Property.

Additionally, Courtland has shown that its alleged

injuries are also fairly traceable to Filmont and Massey

Railyard concerning the Northern Drainage Ditch and discharges

into Ward Branch. Although the Courtland Property is not

downstream of UCC’s alleged pollutant discharges into the

Northern Drainage Ditch and Ward Branch, Courtland has adduced

evidence that, taken as true, shows that Davis Creek, into which

water from the Northern Drainage Ditch and Ward Branch

eventually flow, reverses its flow during certain flooding

events such that downstream water could be deemed to migrate to

the Courtland Property and deposit sediment and contaminants.

To support reverse flow, Courtland references the

deposition testimony of UCC’s Rule 30(b)(6) witness, Jerome

Cibrik (“Cibrik”). See Courtland Resp. 23. Cibrik testified

that “any time the river backs up and floods, water would come

in” the groundwater. See Cibrik Dep. 208-09, Courtland II ECF

No. 288-9.

Moreover, the court notes that Charles McPherson, one

of UCC’s experts, testified as follows concerning flooding and

reverse flow in Davis Creek:

Q. Okay. In your response, you mentioned something

about the flooding of the river and you cut out a

little bit when you were talking about the

developmental history. What did you mean when you

said the flooding of the river? I didn’t get that.

A. As the river backs up in Davis Creek and those

areas go out into a flood plain, they deposit silt and

sediment, and that obviously has occurred in this area

because it’s referred to, I believe, as luvum [sic,

alluvium?] in a lot of the boring logs that I’ve seen

or discussions I’ve read.

Q. Sure. When you say river backs up, you’re talking

about Davis Creek. Yes?

A. I think it all starts with the river. If the

river backs up, then those back up.

Q. Sure. So during flooding events, it’s not unusual

for the Davis Creek to back up; is that right?

A. Correct.

. . .

Q. Again, I am trying to get my arms around that idea

of there being fly ash fill at [the] Courtland

[Property]. So we’ve got the boring log. We’ve got

the issue of flooding of the river and back up. How

else do we get the idea or the impression that there

is fly ash in fill material at [the] Courtland

[Property]?

A. I think I’ve already listed one. Looking at

aerial photographs, there may be other instances that

have shown that, but more recently, there’s been some

historical topographic maps that have shown this area

as obviously being built up over the years, either

through natural and/or manmade assistance. And the

typical materials that are used around this area have

been typically fly ash or flooded materials from the

river backing up.

McPherson Dep. 105-07, Courtland II ECF No. 288-13.

Consequently, Courtland has shown traceability

concerning discharges related to the Northern Drainage Ditch and

Ward Branch and the Southern Drainage Ditch. See Md. Shall

Issue, Inc. v. Hogan, 971 F.3d 199, 212 (4th Cir. 2020) (“An

injury is traceable if ‘there [is] a causal connection between

the injury and the conduct complained of’ by the plaintiff.”

(quoting Lujan, 504 U.S. at 560)).

UCC generally launches, in vain, a broad-based

evidentiary attack on traceability related to standing. See UCC

Mem. Supp. 19-22; UCC Reply 9-13. As the Fourth Circuit

explains, inasmuch as standing is “a threshold jurisdictional

requirement,” a plaintiff does not need to “show to a scientific

certainty that defendant’s effluent . . . caused the precise

harm suffered by the plaintiffs.” Gaston Copper, 204 F.3d at

161 (quotation marks omitted). Instead, “a plaintiff must

merely show,” as Courtland has done, “that a defendant

discharges a pollutant that causes or contributes to the kinds

of injuries alleged in the specific geographic area of concern,”

id., and that “no alternative culprit” is the one causing the

plaintiff’s injuries, see id. at 162.

3. Redressability

Redressability means “that it must be likely, and not

merely speculative, that a favorable decision will remedy the

injury.” Gaston Copper, 204 F.3d at 154. “A plaintiff seeking

injunctive relief shows redressability by alleg[ing] a

continuing violation or the imminence of a future violation of

the statute at issue.” Id. at 162 (quotation marks omitted).

In this case, Courtland seeks, inter alia, to enjoin

what it alleges to be ongoing violations of the Clean Water Act.

Courtland III Compl. ad damnum cl., ECF No. 1; Courtland IV

Compl. ad damnum cl., ECF No. 1. Indeed, Courtland has adduced

evidence that UCC is discharging pollutants without a Clean

Water Act permit. See, e.g., Courtland Resp. 5-7, 26-27. This

is enough to show redressability. See Gaston Copper, 204 F.3d

at 163.

UCC insists that Courtland has not shown that any

alleged Clean Water Act violations are ongoing or likely to

occur in the future. See UCC Mem. Supp. 22-23; UCC Reply 9-13.

However, as UCC recognizes, the Fourth Circuit allows a

plaintiff to establish an ongoing, redressable injury sufficient

to pursue injunctive relief by, at least, “adducing evidence

from which a reasonable trier of fact could find a continuing

likelihood of a recurrence in intermittent or sporadic

violations.” Chesapeake Bay Found., Inc. v. Gwaltney of

Smithfield, Ltd., 844 F.2d 170, 171-72 (4th Cir. 1988). As

explained above, Courtland has adduced evidence that unpermitted

Clean Water Act discharges occur upgradient from the Courtland

Property, which is within the drainage path of such discharges,

as well as downgradient discharges that flow into Davis Creek

which is said to be subject to back up flooding. A reasonable

trier of fact could find that the discharges are ongoing and

likely to occur at least sporadically. Accordingly, for

purposes of summary judgment, Courtland has established that it

has standing to bring its Clean Water Act claims against UCC

concerning discharges into and from the Southern Drainage Ditch

and the Northern Draining Ditch and into Ward Branch.

B. Statute of Limitations

The court set forth in its May 13, 2021, memorandum

opinion and order the analytical framework for evaluating UCC’s

limitations-period challenge to Courtland’s Clean Water Act

claims. See ECF No. 44. To summarize, the Clean Water Act is

subject to the five-year limitations period set forth in 28

U.S.C. § 2462.3 However, under the continuing violation

doctrine, the limitations period is tolled when the violation

giving rise to the claim continues in an ongoing fashion. See,

e.g., Nat’l Parks & Conservation Ass’n v. Tenn. Valley Auth.,

502 F.3d 1316, 1322 (11th Cir. 2007).

There are generally two approaches to the continuing

violation doctrine for Clean Water Act cases. Under the first,

a violation is continuing only where the unlawful conduct,

rather than the ill effects from an initial unlawful act, is

ongoing. See id. Under the second, a violation is continuing

if it is either “continuous or intermittent.” Congaree

Riverkeeper, Inc. v. Carolina Water Serv., Inc., 248 F. Supp. 3d

733, 745 (D.S.C. 2017). It is unclear whether, in a given

instance, there is any appreciable difference between these two

approaches.

As in the court’s prior decision, the court need not

decide which version of the continuing violation doctrine to

apply because Courtland’s Clean Water Act claims of ongoing

3 The plaintiff does not dispute that § 2462 sets forth the

applicable limitations period for its Clean Water Act claims.

seepage and stormwater flow centering around the Northern

Drainage Ditch and Ward Branch and the Southern Drainage Ditch

discharging pollutants on its property satisfy either one.4 See,

e.g., Voluntary Remediation Program, Conceptual Site Model

Worksheet 1, 3, 5, Courtland II ECF No. 288-6 (UCC averring that

contaminants from Filmont and Massey Railyard are entering

surface waters around the sites, including the Northern Drainage

Ditch and the Southern Drainage Ditch).

C. Merits of Clean Water Act claims

Congress enacted the Clean Water Act “to restore and

maintain the chemical, physical, and biological integrity of the

Nation’s waters.” 33 U.S.C. § 1251(a). To pursue those

objectives, the Clean Water Act, inter alia, prohibits the

discharge of pollutants without a permit. See id. § 1311(a).

4 Courtland also argues that “there is no statute of limitations

for [its] claims for injunctive relief” and that the limitations

period is tolled by the discovery rule. Courtland Resp. 32.

The court need not address those arguments because it has

already decided that the above claims are not time-barred under

the continuing tort doctrine. The court further notes that

while there is a colorable argument to exempt injunctive relief

from § 2462, see SEC v. Marin, 982 F.3d 1341, 1355 (11th Cir.

2020), Courtland also seeks non-injunctive relief such as civil

penalties, see Courtland III Compl. ad damnum cl.

“To establish liability for a violation of the [Clean

Water Act’s] . . . permit requirement, plaintiffs must show that

[a “person”] (1) discharged or added [or committed the

functional equivalent of a direct discharge of] (2) a pollutant

(3) to waters of the United States (4) from a point source (5)

without a permit.” W. Va. Highlands Conservancy, Inc. v.

Huffman (Huffman I), 651 F. Supp. 2d 512, 518 (S.D. W. Va.

2009); see also Cnty. of Maui v. Haw. Wildlife Fund, 140 S. Ct.

1462, 1476 (2020) (holding that the Clean Water Act’s permit

requirement extends to “the functional equivalent of a direct

discharge”). Analytically, it is difficult to separate the

discharge and point source elements of a Clean Water Act

violation. Cf. 33 U.S.C. §§ 1362(12) (defining “discharge of a

pollutant” as “any addition of any pollutant to navigable waters

from any point source”), 1362(14) (defining “point source” as

“any discernible, confined and discrete conveyance . . . from

which pollutants are or may be discharged).

UCC tacitly admits it did not have a Clean Water Act

permit for Filmont and Massey Railyard. See UCC Mem. Supp. 36.

UCC also does not challenge that the chemical compounds and

elements at issue are “pollutants.” See id. at 31-32. See

generally W. Va. Highlands Conservancy, Inc. v. Huffman (Huffman

II), 625 F.3d 159, 165-66 (4th Cir. 2010) (explaining that

“pollutant” is broadly defined).5 In fact, UCC has admitted to

the West Virginia Department of Environmental Protection that

pollutants from Filmont and Massey Railyard are making their way

into the groundwater and surface water. See generally Voluntary

Remediation Program Application, Courtland II ECF No. 288-6;

Voluntary Remediation Program, Conceptual Site Model Worksheet,

supra. Last, UCC admits that the rail operations at Massey

Railyard “generate[] a small amount of waste due to rail

maintenance.” UCC Reply 19. Thus, the only matter at issue is

whether a reasonable trier of fact could find that UCC is

committing a discharge or functional equivalent of a discharge

from a point source into navigable waters.

1. Point source

Courtland identifies four possible point sources: (1)

seepage and stormwater from Filmont draining into the Southern

Drainage Ditch and the Northern Drainage Ditch and Ward Branch,

and also across the Courtland Property before reaching the

Southern Drainage Ditch, (2) groundwater percolating from

Filmont into the Southern Drainage Ditch and the Northern

Drainage Ditch, and into Ward Branch, (3) stormwater culverts

5 Huffman II is not an appeal from Huffman I.

located on Massey Railyard that discharge into the Southern

Drainage Ditch, and (4) the Southern Drainage Ditch and the

Northern Drainage Ditch themselves.

UCC argues that “[Courtland] has not sufficiently

identified any specific location or channel by which storm water

is collected from [Filmont or Massey Railyard] and directed to a

discharge point.” UCC Mem. Supp. 35. Instead, according to

UCC, Courtland merely alleges “that stormwater runs uncontrolled

across [Filmont]” in generalized manner. Id.

A “point source” is “any discernible, confined and

discrete conveyance, including but not limited to any pipe,

ditch, channel, tunnel, conduit, well, discrete fissure,

container, rolling stock, concentrated animal feeding operation,

or vessel or other floating craft, from which pollutants are or

may be discharged.” 33 U.S.C. § 1362(14). The use of “any” in

the definition of “point source” suggests that the term should

be broadly construed. See Peconic Baykeeper, Inc. v. Suffolk

Cnty., 600 F.3d 180, 188 (2d Cir. 2010). However, “point

source” “cannot be interpreted so broadly as to read the . . .

requirement out of the statute.” Simsbury-Avon Preservation

Club, Inc. v. Metacon Gun Club, Inc., 575 F.3d 199, 219 (2d Cir.

2009). “[T]he addition of pollutants to navigable waters from

nonpoint sources does not violate” the Clean Water Act. Sierra

Club v. Va. Elec. & Power Co., 903 F.3d 403, 406 (4th Cir. 2018)

(emphasis omitted).

First, the court begins with the seepage and

stormwater draining and flowing down the surface of Filmont into

the Northern Drainage Ditch and Ward Branch, the Southern

Drainage Ditch, and across the Courtland Property before

reaching the Southern Drainage Ditch. Courtland’s expert, Dr.

David Scott Simonton, reports that “[s]tormwater . . . flows

uncontrolled . . . across the surface” of Filmont via “channels,

ditches, or trenches” to the Northern Drainage Ditch and the

Southern Drainage Ditch. Simonton Rep. ¶ 69 (cited by Courtland

Resp. 23, 27); see also id. ¶ 67 (stating that “contaminated

water . . . flows out of [Filmont] via the various seeps, and/or

into trenches or groundwater”) (cited by Courtland Resp. 22,

27).

The case law makes clear that, even viewing the facts

in Courtland’s favor, the unlocalized, natural flow of water

from seepage and stormwater into the Northern Drainage Ditch and

Ward Branch and the Southern Drainage Ditch is a nonpoint source

and thus not subject to the Clean Water Act. “In practical

terms, nonpoint source pollution does not result from a

discharge at a specific, single location (such as a single pipe)

but generally results from land runoff, precipitation,

atmospheric deposition, or percolation.” Simsbury-Avon

Preservation Club, Inc. v. Metacon Gun Club, Inc., 575 F.3d 199,

220 (2d Cir. 2009) (quoting EPA Office of Water, Nonpoint Source

Guidance 3 (1987)); see also id. at 220-22 (citing and quoting

various administrative guidance and case law).6 And “the

addition of pollutants to navigable waters from nonpoint sources

does not violate [the Clean Water Act].” Va. Elec. & Power, 903

F.3d at 406. Indeed, “[i]n regulating discharges of pollutants

from point sources, Congress clearly intended to target the

measurable discharge of pollutants.” Id. at 411. That end is

6 See also Cnty. of Maui, 140 S. Ct. at 1471 (“Rainwater, for

example, can carry pollutants (say, as might otherwise collect

on a roadway); it can pollute groundwater, and pollution

collected by unchanneled rainwater runoff is not ordinarily

considered point source pollution.”); Friends of the Everglades

v. S. Fla. Water Mgmt. Dist., 570 F.3d 1210, 1226-27 (11th Cir.

2009) (“Non-point source pollution, chiefly runoff, is widely

recognized as a serious water quality problem, but the [Clean

Water Act’s permitting] program does not even address it.”);

Env’t Def. Ctr., Inc. v. EPA, 344 F.3d 832, 841 n.8 (9th Cir.

2003) (“Diffuse runoff, such as rainwater that is not channeled

through a point source, is considered nonpoint source pollution

and is not subject to federal regulation.”); 307 Campostella,

LLC v. Mullane, 143 F. Supp. 3d 407, 417 (E.D. Va. 2015) (“The

classification of stormwater runoff as discharge from a point

source or a nonpoint source, however, depends on whether the

runoff is allow to run naturally or whether it is collected or

channeled before being discharged.”); Tri-Realty Co. v. Ursinus

Coll., 124 F. Supp. 3d 418, 459 (E.D. Pa. 2015) (“[T]here is an

outer limit to what may constitute a ‘point source.’ For

example, [a] discharge of pollutants into navigable waters

occurring only through migration of groundwater and uncontrolled

soil runoff represents ‘nonpoint source’ pollution and is

outside the scope of the [Clean Water Act].” (quotation marks

omitted)).

accomplished by focusing on “source[s that] work[] affirmatively

to convey a pollutant, [where] the concentration of the

pollutant and the rate at which it is discharged by that

conveyance can be measured.” Id. But such measurement “is

impossible” in cases where, as in the case of water flowing

unlocalized and naturally down the hillside of Filmont, “the

alleged discharge is diffuse and not the product of a discrete

conveyance.” Id.

Courtland insists that the numerous uncontrolled

“channels, ditches, or trenches” and “gullies” across the

hillside above the Northern Drainage Ditch and Ward Branch and

the Southern Drainage Ditch are each individual point sources.

See Courtland Resp. 38-39; see also Simonton Rep. ¶¶ 69-70; see

also id. ¶ 70 (two photographs of an alleged “gully”). But

Courtland does not cite any case law or other authority for that

proposition. A finding that uncontrolled water running off the

width of a hillside in a natural, diffuse manner in any number

of channels, ditches, trenches, gullies, or otherwise are each

individual point sources would expand the term out of existence.

See Simsbury-Avon, 575 F.3d at 219 (stating that “point source”

“cannot be interpreted so broadly as to read the . . .

requirement out of the statute”).

Relatedly, many courts limit “point source” “to

surface runoff that is collected or channeled by human beings”

rather than the natural diffusion of water over surfaces like

what is described as happening on the hillside of Filmont. Id.

at 221; see also Ecological Rights Found. v. Pac. Gas & Elec.

Co., 713 F.3d 502, 508 (9th Cir. 2013) (“Stormwater runoff is a

nonpoint or point source . . . depending on whether it is

allowed to run off naturally (and is thus a nonpoint source) or

is collected, channeled, and discharged through a system of

ditches, culverts, channels, and similar conveyances (and is

thus a point source discharge).”); Froebel v. Meyer, 217 F.3d

928, 937 (7th Cir. 2000) (“The structure of the CWA’s definition

of ‘point source’ (a ‘discernible, confined, and discrete

conveyance . . . from which pollutants are or may be

discharged’) connotes the terminal end of an artificial system

for moving water, waste, or other materials.”); Tri-Realty Co.,

124 F. Supp. 3d at 460 (stating that a “point source” turns on

“whether the [pollutant is] collected or channeled by man”

(quotation marks omitted)); cf. Va. Elec. & Power, 903 F.3d at

411 (finding that a “point source” must involve “some facility”

“created” to “function[] as a discrete, not generalized,

‘conveyance’”); 40 C.F.R. § 122.2 (defining “discharge of a

pollutant” as that which comes from a “point source,” which

“includes . . . surface runoff which is collected or channelled

by man[ and] discharges through pipes, sewers, or other

conveyances”).

Therefore, seepage and stormwater draining and flowing

down the surface of Filmont is not a point source. A possible

exception is the “collection trench” Simonton identifies, as

well as any other possible discrete conveyance point sources,

that presumably flow into Ward Branch. See Simonton Rep. ¶¶ 58-

59. A “collection trench” would be a Clean Water Act point

source. See 33 U.S.C. § 1362(14).

Second, the court turns to groundwater percolating

from Filmont to the Northern Drainage Ditch, Ward Branch, and

the Southern Drainage Ditch. Courtland relies on Dr. Simonton’s

report, which provides that “contaminated groundwater [from

Filmont] . . . flow[s] into the alluvial[7] deposits associated

with the [Southern Drainage Ditch] . . . and flow[s] into the

[Southern Drainage Ditch].” Simonton Rep. ¶ 50; see also id. ¶¶

48-50. Dr. Simonton also concludes that “polluted groundwater .

. . is flowing from [Filmont] . . . into the South[ern Drainage

Ditch], Davis Creek, and Ward Branch via the Northern [Drainage]

Ditch.” Id. ¶ 48. Further, Courtland points to Cibrik’s Rule

7 “Alluvium” means “clay, silt, sand, gravel, or similar detrital

material deposited by running water.” Alluvium, Merriam-

Webster, https://www.merriam-webster.com/dictionary/alluvium.

30(b)(6) deposition testimony on behalf of UCC where he states

that Filmont does not have “a le[a]chate[8] collection system,”

which is “[u]sually a system of pipes or rock running material

under the waste that would allow collection of le[a]chate.”

Cibrik Dep. 14.

The Fourth Circuit’s decision in Virginia Electric &

Power is instructive in finding that the uncontrolled

percolation of groundwater is a nonpoint source and thus not

subject to the Clean Water Act. In that case, the Fourth

Circuit concluded that arsenic from stored coal ash that

“leached from the coal ash by rainwater and groundwater and

ultimately carried by groundwater into navigable waters” was not

a point source. Va. Elec. & Power, 903 F.3d at 410. The Fourth

Circuit explained that, “[b]y its carefully defined terms, the

Clean Water Act limits its regulation under § 1311(a) to [point

source] discharges from ‘any discernible, confined and discrete

conveyance.’” Id. (quoting 33 U.S.C. § 1362(14)). The Fourth

Circuit considered “conveyance” to be “a well-understood term”

that “requires a channel or medium -- i.e. a facility -- for the

8 “Leachate” means “a solution or product obtained by leaching.”

Leachate, Merriam-Webster, https://www.merriam-

webster.com/dictionary/leachate. “Leaching” means “to remove

(nutritive or harmful elements) from soil by percolation,” among

other similar definitions. Leaching, Merriam-Webster,

https://www.merriam-webster.com/dictionary/leaching.

movement of something from one place or another.” Id. Without

such a conveyance, the Fourth Circuit concluded, “the discharge

would not be regulated by the Clean Water Act.” Id. at 411.

Applying its discussion of “point source” to the

percolation of groundwater contaminated with arsenic from stored

coal ash, the Fourth Circuit reasoned as follows:

In this context, the landfill and ponds were not

created to convey anything and did not function in

that manner; they certainly were not discrete

conveyances, such as would be a pipe or channel, for

example. Indeed, the actual means of conveyance of

the arsenic was the rainwater and groundwater flowing

diffusely through the soil. This diffuse seepage,

moreover, was a generalized, site-wide condition that

allowed rainwater to distribute the leached arsenic

widely into the groundwater of the entire peninsula.

Thus, the landfill and settling ponds could not be

characterized as discrete “points,” nor did they

function as conveyances. Rather, they were, like the

rest of the soil at the site, static recipients of the

precipitation and groundwater that flowed through

them.

Id.

Viewing the facts most favorably to Courtland, the

percolation of contaminated groundwater from Filmont to the

Northern Drainage Ditch and Ward Branch and the Southern

Drainage Ditch is not a point source regulated by the Clean

Water Act. Just as in Virginia Electric & Power, the seepage

described by Courtland is “diffuse” and a “generalized, site-

wide condition.” Id. Filmont is simply a “static recipient[]

of the precipitation and groundwater that flow[s] through [it].”

Id. Indeed, Cibrik’s testimony, which Courtland highlights,

makes clear that Filmont has no system of collecting or

channeling groundwater. Cibrik Dep. 14.

Courtland argues that the generalized diffusion of

groundwater is nevertheless the “functional equivalent of point

sources” under the Supreme Court’s recent decision in County of

Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462 (2020). Courtland

Resp. 39-41. In County of Maui, the Supreme Court held that the

Clean Water Act covers “direct discharge[s] from a point source

into navigable waters or when there is the functional equivalent

of a direct discharge.” 140 S. Ct. at 1476 (emphasis in

original).

County of Maui does not hold that diffuse groundwater

itself can constitute a point source; rather, the Supreme Court

explained that a point source may be regarded as directly

discharging into navigable waters even if the discharge first

passes through some quantity of groundwater before reaching the

navigable waters. Id. The Supreme Court explained:

Where a pipe ends a few feet from navigable waters and

the pipe emits pollutants that travel those few feet

through groundwater (or over the beach), the [Clean

Water Act] clearly applies. If the pipe ends 50 miles

from navigable waters and the pipe emits pollutants

that travel with groundwater, mix with much other

material, and end up in navigable waters only many

years later, the [Clean Water Act] likely do[es] not

apply.

Id. County of Maui still requires an unqualified point source

before the Clean Water Act applies, and diffuse groundwater

seepage like that described as occurring at Filmont is not a

point source.

Third, the court considers the stormwater culverts

located on Massey Railyard that discharge into the Southern

Drainage Ditch. Dr. Brian Wellington, an expert retained by

UCC, reports as follows:

During my site visit I observed two small culverts

from Massey Rail Yard discharging at the top of the

hill above the Southern [Drainage] Ditch that is on

the property line between the UCC Property and the

Courtland property. . . . However, neither is a

significant source of storm water discharges and the

lack of discernible flow path or ditch on the slope

indicates that very little water is traveling down the

slope to the Southern [Drainage] [D]itch.

Wellington Rep. 13-14, ECF No. 150-52; see also id. at 13 (photo

locating the two stormwater culverts). At his deposition, Dr.

Wellington testified that the “culverts are designed to remove

[storm]water that falls on the rail track and sits in the

ditches” that lead to the culverts. Wellington Dep. 181,

Courtland II ECF No. 381-4; see also id. at 169-70, 182.

Courtland contends that the two culverts are point

sources. Courtland Resp. 36. UCC does not address whether the

culverts constitute point sources. See generally UCC Mem.

Supp.; UCC Reply. However, UCC does contend that a discharge

cannot be from a point source if “no significant amount of

stormwater flows” through the conveyance. UCC Reply 18.

Viewing the evidence most favorably to Courtland, the

two culverts are clearly point sources. See Ecological Rights

Found., 713 F.3d at 508 (“Stormwater runoff is a nonpoint or

point source . . . depending on whether it is allowed to run off

naturally (and is thus a nonpoint source) or is collected,

channeled, and discharged through a system of ditches, culverts,

channels, and similar conveyances (and is thus a point source

discharge).”). UCC’s water-volume argument is unavailing

because the Clean Water Act reaches even “intermittent or

sporadic violations.” Chesapeake Bay Found., 844 F.2d at 172.

Fourth, the court considers the Northern Drainage

Ditch and the Southern Drainage Ditch themselves. Courtland

argues that the Northern Drainage Ditch and the Southern

Boundary Ditch are point sources. Courtland Resp. 36. Indeed,

the Northern Drainage Ditch and the Southern Drainage Ditch bear

the hallmarks of Clean Water Act point sources: they are manmade

ditches designed to drain water to Davis Creek. See 33 U.S.C. §

1362(14) (defining “point source” to include a “ditch”). UCC

does not argue otherwise. Thus, the Northern Drainage Ditch and

the Southern Boundary Ditch are deemed point sources.

There are accordingly three point sources at issue in

this matter: the two stormwater culverts discharging into the

Southern Drainage Ditch, the Southern Drainage Ditch itself, and

the Northern Drainage Ditch. Points of seepage into Ward Branch

are also potential point sources.

2. Whether UCC is committing a discharge or functional

equivalent of a discharge

The Clean Water Act prohibits the permitless

“discharge of any pollutant by any person.” 33 U.S.C. §

1311(a). “Discharge” means the “discharge of a pollutant,”

which in turn means “any addition of any pollutant to navigable

waters from any point source.” Id. §§ 1362(12), 1362(16).

The Clean Water Act does not define “addition.” In

common parlance, it means, inter alia, “anything or anyone

added” or “direct chemical combination of substances into a

single product.” Addition, Merriam-Webster,

https://www.merriam-webster.com/dictionary/addition. The Fourth

Circuit also explains that the Clean Water Act “clearly covers

all additions -- no matter how small -- rather than merely net

additions.” Huffman II, 625 F.3d at 167. “In other words,” the

Fourth Circuit continues, “[the Clean Water Act] does not impose

liability only where a point source discharge creates a net

increase in the level of pollution. Rather, the [Clean Water

Act] categorically prohibits any discharge of a pollutant from a

point source without a permit.” Id.

The courts have read the “addition” requirement as

imposing strict liability upon any person who causes the

discharge of pollutants to navigable waters from a point source

without a permit. Huffman I, 651 F. Supp. 2d at 519 (“It is

generally recognized that liability under the CWA is a form of

strict liability.”); see also Am. Canoe Ass’n v. Murphy Farms,

412 F.3d 536, 540 (4th Cir. 2005). “[T]he person responsible

for the discharge of any pollutant,” that is, the person

responsible for adding a pollutant to navigable waters from a

point source, “[is] strictly liable.” Huffman I, 651 F. Supp.

2d at 519. Causation for strict Clean Water Act liability “can

be met because of a defendant’s control over discharges,” id.,

regardless of whether the person is “responsib[le] for creating

the polluting condition,” Huffman II, 625 F.3d at 166.

In this case, viewing the record in Courtland’s favor,

UCC is discharging, or adding, pollutants from the point sources

at issue. As noted above, UCC admits that pollutants from

Filmont and Massey Railyard are making their way into

groundwater and surface water -- invariably partially through

the stormwater culverts, the Southern Drainage Ditch, and the

Northern Drainage Ditch. Accordingly, inasmuch as, viewing the

record in Courtland’s favor, UCC is responsible for adding

pollutants to those point sources and that those point sources

are indeed polluted, a reasonable trier of fact could find that

UCC is committing a discharge.9

3. Navigable waters

To violate the Clean Water Act, the discharge of

pollutants from a point source must be to navigable waters. See

U.S.C. § 1362(12). In this case, UCC does not contest that

Davis Creek and Ward Branch, which empties into Davis Creek, are

navigable waters covered by the Clean Water Act. The Southern

Drainage Ditch plainly empties into Davis Creek, and the

9 There is some suggestion in the case law that Courtland could

bear some responsibility for discharges into the Davis Creek

watershed as well. As a reminder, the Southern Drainage Ditch

traverses the Courtland Property near its confluence with Davis

Creek, and some of the Courtland Property is upgradient from the

Southern Drainage Ditch and separates the ditch from the

contaminated Filmont. The Fourth Circuit, for instance, seems

concerned with who operates a discharging point source rather

than who was the original polluter. See Huffman II, 625 F.3d at

166; see also S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe of

Indians, 541 U.S. 95, 105 (2004) (““[A] point source need not be

the original source of the pollutant; it need only convey the

pollutant to ‘navigable waters.’”). Moreover, evidence in the

record points to potential pollution-adding items and areas on

the Courtland Property. See generally UCC Mem. Supp. 7-9. In

any event, those matters are not before the court and need not

be addressed further.

Northern Drainage Ditch into Ward Branch. The analysis is

different concerning the stormwater culverts, however, because

they empty into the Southern Drainage Ditch.

The decision in Rapanos v. United States is

instructive. There, the plurality of the Supreme Court

explained that the Clean Water Act reaches point sources beyond

those that directly empty into navigable waters:

The Act does not forbid the “addition of any pollutant

directly to navigable waters from any point source,”

but rather the “addition of any pollutant to navigable

waters.” Thus, from the time of the [Clean Water

Act’s] enactment, lower courts have held that the

discharge into intermittent channels of any pollutant

that naturally washes downstream likely violates §

1311(a), even if the pollutants discharged from a

point source do not emit “directly into” covered

waters, but pass “through conveyances” in between.

Rapanos, 547 U.S. at 743 (citations omitted and emphasis in

original). Thus, a plurality of the Supreme Court was at least

“open to the possibility that a permit is required if point

source A discharges into point source B, and point source B then

discharges into covered waters.” Cnty. of Maui, 140 S. Ct. at

1487 n.5 (Alito, J., dissenting).

The court finds the Rapanos plurality’s discussion

persuasive. Even though the stormwater culverts do not empty

directly into navigable waters, discharges from the stormwater

culverts nevertheless naturally reach navigable waters through a

series of conveyances. The stormwater culverts are therefore

regarded as discharging to navigable waters.

Accordingly, Courtland has demonstrated that a

reasonable trier of fact could find that UCC is discharging

pollutants from point sources -- the stormwater culverts, the

Southern Drainage Ditch, and the Northern Drainage Ditch as well

potentially at points of seepage into Ward Branch -- without a

permit in violation of the Clean Water Act.

D. Industrial stormwater discharges

There is an additional issue that bears on Courtland’s

Clean Water Act claims. 33 U.S.C. § 1342(p) “exempt[s] from the

[Clean Water Act’s] permitting scheme most ‘discharges composed

entirely of stormwater.’” Decker v. Nw. Envt’l Def. Ctr., 568

U.S. 597, 603 (2013) (quoting 33 U.S.C. § 1342(p)). To begin,

the court notes that because the Southern Drainage Ditch is not

“composed entirely of stormwater,” it is not subject to Section

1342(p)’s general exemption and is therefore not relevant to

this discussion.10

10 Even if the Southern Drainage Ditch were subject to Section

1342(p), stormwater that enters the ditch comes from Filmont,

which doubtlessly qualifies as stormwater associated with

“industrial activity” for which a Clean Water Act permit is

required. See 33 U.S.C. § 1342(p)(2)(B); 40 C.F.R. §§

The evidence submitted, however, establishes that the

point-source stormwater culverts located at Massey Railyard

exclusively serve their eponymous purpose. See Wellington Dep.

181-83 (“[T]hose culverts are designed to remove water that

falls on the rail track and sits in the ditches between the

actual rails.”) Consequently, to form the basis of a Clean

Water Act violation, the stormwater discharges through the

Massey Railyard stormwater culverts must satisfy an exception to

Section 1342(p)’s general exemption.

Courtland argues that the stormwater discharges

require a permit because they are “associated with industrial

activity.” 33 U.S.C. § 1342(p)(2)(B); see also id. §

1342(p)(3)(A) (“Permits for discharges associated with

industrial activity shall meet all applicable provisions of this

section and section 1311 of [the Clean Water Act].”). The

regulations promulgated under Section 1342(p)’s “industrial

activity” exception describe the following, in relevant part.

Storm water discharge associated with industrial

activity means the discharge from any conveyance that

is used for collecting and conveying storm water and

that is directly related to manufacturing, processing

or raw materials storage areas at an industrial plant.

. . . The following categories of facilities are

122.26(b)(14)(iv) (“industrial activity” includes “[h]azardous

waste treatment, storage, or disposal facilities”);

122.26(b)(14)(v) (“industrial activity” includes “[l]andfills,

land application sites, and open dumps that receive or have

received any industrial wastes”).

considered to be engaging in “industrial activity” . .

. :

. . .

(iv) Hazardous waste treatment, storage, or

disposal facilities, including those that are

operating under interim status or a permit under

subtitle C of [the Resource Conservation and

Recovery Act (“RCRA”), 42 U.S.C. § 6901 et seq.];

(v) Landfills, land application sites, and open

dumps that receive or have received any

industrial wastes (waste that is received from

any of the facilities described under this

subsection) including those that are subject to

regulation under subtitle D of RCRA.

40 C.F.R. §§ 122.26(b)(14)(iv), (v).

Courtland contends that Massey Railyard is engaged in

“industrial activity” as defined under 40 C.F.R. §§

122.26(b)(14)(iv), (v). Courtland Resp. 42. But Courtland does

not explain why. See id. at 41-47.

In response, UCC argues that “[Massey Railyard] has

never been used as a landfill and there is no credible evidence

that supports [its] use as a landfill.” UCC Reply 19. UCC

concedes that “[Massey Railyard] generates a small amount of

waste due to rail maintenance operations,” but UCC evidently

does not consider such activity to be industrial. See id.

Absent evidence that Massey Railyard was or is engaged

in the activities described in 40 C.F.R. §§ 122.26(b)(14)(iv),

(v), a reasonable trier of fact could not conclude that UCC

requires a permit for stormwater discharges through the two

stormwater culverts at Massey Railyard that empty into the

Southern Drainage Ditch. Thus, there is no Clean Water Act

violation associated with those stormwater culverts.

Accordingly, using the point sources as points of

reference for Courtland’s Clean Water Act claims, UCC’s motion

for summary judgment is denied with respect to the Northern

Drainage Ditch and the Southern Drainage Ditch and potential

point source seepage into Ward Branch and otherwise granted.

IV. Conclusion

For the foregoing reasons, it is ORDERED that UCC’s

consolidated motion for summary judgment be, and hereby is,

granted in part and denied in part as set forth above.

The Clerk is requested to transmit copies of this

memorandum opinion and order to all counsel of record and any

unrepresented parties.

ENTER: July 1, 2022

sl la nll ep

Jo . Copenhaver, Jr.

Senior United States District Judge

40