Black Warrior River-Keeper Inc v. Drummond Company

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

BLACK WARRIOR RIVER- )

KEEPER, INC., )

)

Plaintiff, ) Civil Action Number

) 2:16-CV-01443-AKK

v. )

)

DRUMMOND COMPANY, INC., )

)

Defendant.

MEMORANDUM OPINION AND ORDER

Pending before the court is Black Warrior River-Keeper’s renewed motion for

summary judgment on its groundwater CWA claims in light of the Supreme Court’s

decision in Cty. of Maui v. Hawai’i Wildlife Fund, 140 S. Ct. 1462 (2020). See docs.

106; 111. Drummond Company opposes the motion, doc. 112, and BWR has filed

a reply, doc. 114. Having carefully examined the briefing and supporting materials

in the record, the court finds that the motion is due to be granted.

I.

Under the Federal Rules of Civil Procedure, the court “shall grant summary

judgment 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(a).

The movant bears the initial burden of proving the absence of a genuine issue of

material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Cynergy, LLC v.

First Am. Title Ins. Co., 706 F.3d 1321, 1326 (11th Cir. 2013). “Once the movant

adequately supports its motion, the burden shifts to the nonmoving party to show

that specific facts exist that raise a genuine issue for trial.” Cynergy, 706 F.3d at

1326 (quoting Dietz v. Smithkline Beecham Corp., 598 F.3d 812, 815 (11th Cir.

2010)).

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); Hinson v. Bias, 927 F.3d 1103, 1115 (11th

Cir. 2019). A party asserting that a fact is genuinely disputed must support the

assertion either by “citing to particular parts of materials in the record,” including

depositions, documents, or affidavits, or by “showing that the materials cited do not

establish the absence or presence of a genuine dispute, or that an adverse party

cannot produce admissible evidence to support the fact.” FED. R. CIV. P. 56(c). A

“mere scintilla of evidence” will not create a genuine issue of material fact. Hinson,

927 F.3d at 1115 (quoting Anderson, 477 U.S. at 252).

At summary judgment, the court must construe the evidence and all factual

inferences arising from it in a light most favorable to the nonmovant, and the court

thus resolves “all reasonable doubts about the facts” in favor of the nonmovant.

Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins. Co., 483 F.3d 1265, 1268 (11th

Cir. 2007). Accordingly, at summary judgment, the court must not weigh the

evidence or make credibility determinations. Sears v. Roberts, 922 F.3d 1199, 1205

(11th Cir. 2019); Feliciano v. City of Miami Beach, 707 F.3d 1244, 1252 (11th Cir.

2013). However, “mere conclusions and unsupported factual allegations are legally

insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321,

1326 (11th Cir. 2005) (per curiam) (citing Bald Mountain Park, Ltd. v. Oliver, 863

F.2d 1560, 1563 (11th Cir. 1989)).

II.

In 2016, BWR, an Alabama nonprofit dedicated to the protection of the Black

Warrior River, filed this lawsuit against Drummond under § 505 of the Clean Water

Act. Doc. 1 at 1. BWR asserts that Drummond has engaged in “ongoing and

continuous unpermitted discharges of acid mine drainage (‘AMD’) and/or other

pollutants into the Locust Fork of the Black Warrior River and a tributary of the

Locust Fork.” Doc. 24 at 1. These pollutants apparently flow from the Maxine Mine

site (“the Site”), an abandoned underground mine formerly operated by Drummond.

Id. at 2. BWR asserts that AMD discharges occur continuously from “an enormous

waste pile,1 located on Drummond’s property, on a ridge above the Locust Fork, via

surface and groundwater connected to surface waters.” Id. BWR claims that the

1 This waste pile, also referred to as the “coal processing waste disposal area,” “rock disposal area,”

“refuse pile,” and “GOB pile,” was originally formed in the early 1950s by Alabama By-Products

Corporation, which later merged with Drummond. See doc. 93 at 9–12. As in its previous opinions

and orders, the court uses the term “refuse pile” for ease of reference.

discharges flow both into the tributary, which in turn leads to the Locust Fork, and

also directly into the Locust Fork. Id. At issue in the instant motion, Drummond

apparently permits “seeps of pollution to escape from groundwater and the

underground mine works” and to enter the Locust Fork. Id.2

In August 2018, Drummond moved for summary judgment, asserting a

variety of defenses that included limitations, laches, compliance and release, and the

doctrines of “grandfathering” and/or reliance. See doc. 48. BWR also moved for

partial summary judgment as to Drummond’s liability under the CWA and the

RCRA. See doc. 52. After these cross-motions became ripe for review, but before

the court ruled on them, Drummond filed a motion to stay pending the Supreme

Court’s decision in Cty. of Maui v. Hawai’i Wildlife Fund, 140 S. Ct. 1462 (2020).

See doc. 82 at 1–2. In support, Drummond stated that the Maui decision would

resolve “a key issue” in this case: whether the CWA requires a permit when

pollutants originate from a point source but are conveyed to navigable waters by

groundwater. Id.

2 Allegedly, Drummond also dammed the tributary to construct “a system of drainage ditches and

instream sediment basins,” and sediment “has completely filled the tributary which runs through

the mine site, past the pile of mine waste to the Locust Fork.” Id. at 3. BWR also pleads claims

under the Resource Conservation and Recovery Act related to Drummond’s past and current

management of mine waste at the Site. Id. With respect to this RCRA claim, BWR asserts that

mine waste filled a former stream, caused contamination of local surface and/or groundwaters, and

threatens to cause further pollution. Id. The court previously denied BWR’s motion for summary

judgment as to these claims, which will proceed to trial. See doc. 93 at 65–66.

In May 2019, the court denied Drummond’s motion for summary judgment in

its entirety and granted BWR’s partial motion only as to the CWA claim that

Drummond was discharging AMD “from the refuse pile, ditches, channels, gullies,

basins, and dams at the site into Locust Fork.” Doc. 93 at 66. Regarding the

groundwater CWA claims, the court noted that “whether groundwater seeps

constitute point sources or are otherwise subject to regulation under the CWA”

remained an open question because the Supreme Court had yet to rule on the issue.

See id. Thus, the court denied BWR’s partial motion for summary judgment “in all

other respects” and granted Drummond’s motion for a stay, doc. 82, pending the

ruling in Maui. Doc. 93 at 66.

The Supreme Court decided Maui in April 2020, and the parties jointly moved

to lift the stay thereafter. See doc. 98. After lifting the stay, the court ordered

supplemental briefing on the application of Maui. See docs. 99; 105. BWR invited

the court to treat its briefing as a renewed motion for summary judgment on its

groundwater CWA claims. See doc. 106 at 1–2. The court accepted this invitation

and ordered the parties to brief the motion. Doc. 111. BWR’s renewed motion for

summary judgment on its groundwater CWA claims is now ripe for review.

III.

The court begins with the relevant statutory framework, as updated in Maui.

To establish a CWA violation, a plaintiff must show (1) a discharge; (2) of a

pollutant; (3) into waters of the United States; (4) from a point source; (5) without a

National Pollutant Discharge Elimination System permit. Parker v. Scrap Metal

Processors, Inc., 386 F.3d 993, 1008 (11th Cir. 2004); Maui, 140 S. Ct. at 1468.

Relevant here is the meaning of “from a point source.” The CWA defines “point

source” as “any discernible, confined and discrete conveyance, including but not

limited to any pipe, ditch, channel, tunnel, conduit, well . . . from which pollutants

are or may be discharged.” 33 U.S.C. § 1362(14). Prior to Maui, the courts of

appeals had split on whether the CWA required a permit when pollutants originate

from a point source but reach navigable waters via groundwater, a nonpoint source.3

See 140 S. Ct. at 1468.

A.

In Maui, the Supreme Court held that the CWA “require[s] a permit if the

addition of the pollutants through groundwater is the functional equivalent of a direct

discharge from the point source into navigable waters.” Id. In so holding, the Court

rejected Maui County’s “bright-line” argument that the CWA’s permitting

requirement did not apply to groundwater. See id. at 1470. The Court also rejected

3 See Hawai’i Wildlife Fund v. Cty. of Maui, 886 F.3d 737, 749 (9th Cir. 2018) (finding CWA

violation where groundwater carried pollutants from wells to ocean because “pollutants [were]

fairly traceable from the point source to a navigable water”) (emphasis added); Upstate Forever

v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637, 651 (4th Cir. 2018) (requiring “direct

hydrological connection between ground water and navigable waters” to state groundwater CWA

claim) (emphasis added); Ky. Waterways All. v. Ky. Utils. Co., 905 F.3d 925, 933 (6th Cir. 2018)

(finding that CWA’s text “forecloses an argument that groundwater is a point source”).

the environmental groups’ view that the CWA required permitting where pollution

was “‘fairly traceable’ to a point source even if it traveled long and far (through

groundwater) before it reached navigable waters.” See id. Instead, the Court struck

a middle ground, recognizing “Congress’ basic aim to provide federal regulation of

identifiable sources of pollutants entering navigable waters without undermining the

States’ longstanding regulatory authority over land and groundwater.” Id. at 1476.

The Court provided a non-exhaustive list of seven factors for courts to

consider when determining whether there exists, via groundwater, “the functional

equivalent of a direct discharge” of pollutants from a point source to navigable

waters. Id. Acknowledging that “time and distance will be the most important

factors in most cases,” the Court provided “factors that may prove relevant”:

(1) transit time, (2) distance traveled, (3) the nature of the material

through which the pollutant travels, (4) the extent to which the pollutant

is diluted or chemically changed as it travels, (5) the amount of

pollutant entering the navigable waters relative to the amount of the

pollutant that leaves the point source, (6) the manner by or area in which

the pollutant enters the navigable waters, (7) the degree to which the

pollution (at that point) has maintained its specific identity.

Id.

B.

On remand, the District of Hawaii applied this “functional equivalent” test

and found that Maui County’s wastewater constituted the functional equivalent of a

direct discharge of pollution into the Pacific Ocean, mandating an NPDES permit.

Hawai’i Wildlife Fund v. Cty. of Maui, No. 12-00198, 2021 WL 3160428, at *1 (D.

Haw. July 26, 2021). Though Maui County did not discharge polluted wastewater

directly into the ocean, it “introduc[ed] the pollutants into injection wells” at a

reclamation facility half a mile from the ocean. Id. at *1. Once Maui County placed

wastewater into these injection wells, the wastewater traveled about 200 feet

underground into a “shallow groundwater aquifer” beneath the reclamation facility

before mixing with groundwater and “flow[ing] horizontally and vertically into the

ocean through the porous aquifer.” Id. at *3.

Holding that this “indirect” introduction of pollutants functionally equaled a

direct discharge,4 the court underscored the factors of time and distance—that is, the

time it took the wastewater to reach the ocean and the distance the wastewater had

to travel to get there. See id. at *12, *14. The court cited a study in which dye placed

in two wells reached the ocean in “as little as 84 days, with peak concentration of

4 The court explained:

The parties . . . agree that millions of gallons of treated wastewater travel from

those injection wells through groundwater, and that 100 percent of that wastewater

finds its way into the ocean, although with certain components, like nitrogen, being

reduced before the wastewater reaches the ocean. Monitors at a handful of small

locations near the shoreline have detected less than 2 percent of the wastewater

from two of the four wells. . . . While the court cannot point to the exact path of the

rest of the wastewater or map every drop of that remaining 98 percent, it is likely

that that remainder is entering the Pacific Ocean within a few miles at most of the

LWRF. That less-than-2-percent is still an enormous amount of pollutant being put

into the ocean in the functional equivalent of a direct discharge.

Id. at *1.

the dye occurring 9 to 10 months after placement” and an average transit time of 14

to 16 months. Id. at *12. The court noted that these wells were located “one-half

mile or less from the Pacific Ocean” and that “even with diffuse flow, the wastewater

likely travel[ed] a relatively short distance through groundwater.” Id. at *14. These

factors weighed in favor of requiring a permit. Id.

The court also highlighted that “100 percent of the wastewater” was

“discharged somewhere in the Pacific Ocean” and that the wastewater “maintain[ed]

its specific identity as polluted water,” even with less nitrogen by the time it reached

the ocean. Id. at *15. These factors also weighed in favor of requiring a permit. See

id. On the other hand, the court found that the wastewater mixed with other waters,

flowed through rocks, and possibly became diluted, which weighed against requiring

a permit. Id. The court acknowledged that “the precise manner by which all of the

wastewater enter[ed] the ocean [was] unclear” but that this “may not add much to

the other factors in the circumstances of this case” and therefore gave no additional

weight to this factor in its analysis. Id. Balancing the seven Maui factors “as well

as the additional volume factor that [the] court added,” the court granted Hawai’i

Wildlife Fund’s motion for summary judgment on its CWA claim. Id. at *18.

IV.

In this case, the parties do not contest that the Locust Fork constitutes waters

of the United States and that Drummond has not had an NPDES permit since at least

1993. See doc. 93 at 15 (citing docs. 50-4 at 91; 27 at ¶ 23; 53-2 at 8; 59 at 3). In

addition, the court previously determined that AMD, a pollutant, has been

discharged into the Locust Fork from point sources that include the refuse pile and

the ditches, channels, gullies, basins, and dams that form the drainage system at the

Site. See id. at 20, 33–35. Thus, the only remaining issue as to BWR’s groundwater

CWA claims is whether the groundwater discharges qualify as the functional

equivalent of a direct discharge of AMD into the Locust Fork. See Parker, 386 F.3d

at 1008; Maui, 140 S. Ct. at 1468. See also doc. 93 at 36.

With the benefit of the Maui case, BWR contends that its expert reports and

data demonstrate that the AMD-contaminated groundwater flowing into the Locust

Fork constitutes the functional equivalent of a direct discharge of pollutants. See

doc. 106 at 19. Drummond proffers two rebuttals. First, as a threshold matter,

Drummond reiterates that the court should not consider BWR expert Anthony

Brown’s 2021 declaration, appended to BWR’s renewed motion, because the

declaration is untimely, inadmissible, speculative, and irrelevant. See docs. 112 at

6–7, 9–11; 113. Second, and more substantively, Drummond asserts that genuine

issues of fact remain as to whether the groundwater constitutes the “functional

equivalent of a direct discharge of pollutants from a point source” and, if yes,

whether this is “sufficient to support a judgment.” See id. at 16.

The court has considered and rejected Drummond’s first argument, finding

that Drummond fails to adequately establish which statements, if any, in Brown’s

declaration warrant exclusion. See doc. 121. Thus, the disposition of BWR’s

summary judgment motion boils down to whether a reasonable jury could return a

verdict for Drummond on BWR’s groundwater CWA claims. See Anderson, 477

U.S. at 248. The court first walks through BWR’s argument that no genuine issues

of material fact remain as to its groundwater CWA claims. Concluding that BWR

affirmatively makes its case for summary judgment, the court then turns to

Drummond’s rebuttals.

A.

BWR cites Brown’s 2017 report and his related 2021 declaration as evidence

demonstrating that the groundwater constitutes the functional equivalent of a direct

discharge under the Maui factors. See docs. 106; 106-1.

1.

In his 2017 report, Brown noted the presence of pollutants in groundwater that

discharged into the Locust Fork, explaining that “toxic pollutants” discharged to the

Locust Fork via surface runoff or polluted groundwater and that these pollutants

“have been detected in samples of the surface water and in groundwater seeps that

discharge to the Locust Fork below the lower dam.” Doc. 53-6 at 19 (internal

citations omitted). Brown also described how groundwater seeps carry AMD into

the Locust Fork through the east side of the refuse pile as the polluted groundwater

flows into surface water in the sediment basins and enters the Locust Fork as “bed-

seepage or at near-shore seeps.” See doc. 53-6 at 48, 50–51, 70–71.5 See also id. at

13.6 As with the samples taken from the refuse pile and the surface water, Brown

apparently detected “high iron and sulfate concentrations” in the groundwater

samples and noted that “total Alkalinity, [total dissolved solids], Acidity, and Sulfate

levels are at least ten times higher (TDS, acidity, sulfate) and ten times lower

(alkalinity) in groundwater samples taken at the Site than in samples taken from the

Locust Fork or locations not receiving runoff from the GOB Pile.” Id. at 71.

In his 2021 declaration appended to BWR’s motion, Brown focuses on the

discharge of polluted groundwater at the lower dam and revisits data and

observations from his 2017 report to analyze the groundwater under the Maui

factors. Doc. 106-1 at 4. Because he previously observed “polluted” groundwater

5 Brown explained that “a groundwater plume with elevated concentrations of [chemicals of

concern] and [total dissolved solids] was evident in the surface EM31 data and land-based [electric

resistance tomography] data” and that polluted groundwater “is present in the underlying bedrock

and infill GOB waste” and in the “infilled sediments.” Doc. 53-6 at 70. He described a “plume

with high TDS concentrations discharging to the Locust Fork . . . immediately below and above

the lower dam” and stated that he observed “discharge at seeps” during site inspections and field

investigations. Id. “Using Darcy’s equation and parameter estimates for hydraulic conductivity,

hydraulic gradient, and cross-sectional area of flow,” Brown estimated that “the discharge of

groundwater to the Locust Fork from the Sedimentation Basins” is 34 gallons per minute. Id.

6 Brown stated that “polluted groundwater in the lower Sedimentation Basin discharges at seeps

below the lower dam that flow into the Locust Fork” and that “[o]pposite the lower dam, polluted

groundwater also discharges through GOB waste sediments on the bed of the Locust Fork (i.e.,

bed-seepage) into the river water.” Id. at 13.

discharge “at seeps along the eastern slope” of the Site in 2017 but did not present

“an estimate of the volume of polluted groundwater discharge along the eastern

slope,” his 2021 declaration focuses only on the lower dam “where such an estimate

was provided in [his] expert report.” Id.

On the Maui factors of time and distance, Brown notes that polluted

groundwater flows “10 to 30 feet” through the lower dam before “discharging at

surface seeps” under the lower dam to the Locust Fork. Id. at 7. Using Darcy’s

equation to calculate groundwater velocity, he estimates that the groundwater flows

at a rate of 6.9 feet per day and that groundwater at the lower dam thus enters the

Locust Fork from seeps in “approximately 1.5 to 4.4 days.” Id. Turning to bed

seepage, Brown states that the groundwater flows 30 to 100 feet through and under

the lower dam and onto riverbed sediments before entering the Locust Fork. Id.

Using the velocity rate of 6.9 feet per day, he calculates that groundwater at the lower

dam enters the Locust Fork as bed seepage “in approximately 4.4 to 14.6 days.” Id.7

BWR argues that the refuse pile and groundwater discharges thus function “like a

7 Regarding these time and distance factors, BWR also cites several photographs it previously

filed, arguing they convey the “extremely close proximity” of “the lower dam and spillway (point

source)” to the Locust Fork. Doc. 106 at 9–10 (citing docs. 55-19 at 2; 53-9 at 2; 55-20 at 2; 53-6

at 105). These photographs appear to depict front and aerial views of the lower dam that show the

“spillway” adjacent to the Locust Fork, and the close proximity is evidenced in part by small trees

casting a shadow over the dam and onto the river. See docs. 55-19 at 2; 53-9 at 2; 55-20 at 2; 55-

13 at 3; 53-6 at 105. See also doc. 106 at 9–10.

pipe, discharging pollutants, above and below the surface, just feet away from the

Locust Fork.” See doc. 106 at 13.

As to the other Maui factors, Brown has asserted that the refuse pile is

“permeable and highly porous,” allowing “infiltration of rainwater and flow of

groundwater.” Id. at 14 (citing doc. 106-1 at 9). See also doc. 53-6 at 42 (“Based

on the field observations, most of the contaminated groundwater beneath the GOB

waste (graded, infill and Pile) flows through the GOB waste sediments in the

Sedimentation Basins and thence discharges to the Locust Fork.”); id. at 12.8 Put

another way, groundwater apparently travels through the acidic refuse pile and

becomes polluted by it, thence carrying AMD as the groundwater flows into the

Locust Fork. See doc. 106 at 14 (citing doc. 53-6 at 12–14). Brown claims that

when rainfall infiltrates the refuse pile, pollutants dissolve into the water, “creating

the AMD that is carried by polluted surface runoff and groundwater to the Locust

Fork.” Id. at 11–12. In sum, the groundwater both becomes polluted by the refuse

waste and also furnishes the means by which AMD flows into the Locust Fork. See

id. at 15.

8 Brown also explained in his 2017 report: “Toxic pollutants in the GOB waste (GOB pile, graded

GOB waste, and infill GOB waste) dissolve into infiltrating water that percolates through the GOB

waste and recharges groundwater. The groundwater within and beneath the GOB waste is polluted

with AMD, and represents a large secondary source of toxic pollutant discharge to surface water.”

Doc. 53-6 at 12.

Because sampling data apparently reveal “the same basic chemical

characteristics and AMD contamination” at multiple Site locations, including the

upper parts and lower parts in the “seepage zone,” BWR argues that the evidence

demonstrates that groundwater only becomes more polluted, not diluted, as it travels

to the Locust Fork. See id. (citing doc. 53-6 at 58–62). BWR claims that this

presents even stronger evidence of a functional equivalent of a direct discharge than

the evidence in Maui, where fresh groundwater and volcanic rock diluted the

wastewater at issue “in its long journey to navigable waters.” Id. at 15–16 (citing

Maui, 2021 WL 3160428, at *14–15). In addition, Brown states that the discharges

into the Locust Fork maintain their identity as polluted AMD because “[t]he GOB

material does not attenuate the concentration of pollutants in the groundwater at the

points of discharge.” Id. at 17; doc. 106-1 at 13–14 (citing doc. 53-6 at 58–62).

BWR argues that this evidence, paired with Brown’s calculation that

approximately 49,500 gallons of polluted groundwater discharges to the Locust Fork

each day and 100 percent of the groundwater at the Site flows into the Locust Fork,

demonstrates that the groundwater flows violate the CWA under Maui. See id. at

16–17. BWR again draws a comparison between the AMD-polluted groundwater

flowing into the Locust Fork and the “example of a pipe that ‘ends a few feet from

navigable waters,’” where the “pipe emits pollutants that travel those few feet

through groundwater.” Id. at 18 (citing Maui, 140 S. Ct. at 1476). Thus, BWR says,

the CWA clearly applies to the groundwater at issue. Id.

2.

On this evidence, BWR has met its initial burden of establishing the absence

of a genuine dispute regarding whether the groundwater discharges into the Locust

Fork constitute the functional equivalent of a direct discharge of pollutants from a

point source. See Maui, 140 S. Ct. at 1468, 1476. For one, BWR and its expert

Brown sufficiently establish “the kind of time, distance, and dilution data that the

[c]ourt would require for its Maui inquiry.” See Cottonwood Envtl. Law Ctr. v.

Edwards, No. 20-00028, 2021 WL 1102405, at *7 (D. Mont. March 23, 2021).

BWR has presented evidence that contaminated groundwater from the lower dam

reaches the Locust Fork in as little as 1.5 to 4.4 days, see doc. 106-1 at 7, and given

the proximity of the lower dam and spillway to the Locust Fork, see, e.g., docs. 55-

19 at 2; 53-9 at 2, “the [AMD] likely travels a relatively short distance through

groundwater.” See Maui, 2021 WL 3160428, at *14. Indeed, the Maui Court

emphasized that “time and distance will be the most important factors in most cases.”

140 S. Ct. at 1476.

Additionally, BWR has provided evidence that polluted groundwater travels

through “porous” GOB waste that exacerbates rather than dilutes the intensity of the

AMD. See docs. 53-6 at 18, 30, 50–51, 58–62, 68–71; 106 at 14–15.9 Further still,

BWR has presented evidence that the pollution maintains its identity as AMD as the

AMD-laden groundwater discharges into the Locust Fork, bolstered by the finding

that concentrations of chemicals and the pH of the groundwater seeps have “similar

ranges” as the data observed for surface water. See docs. 53-6 at 58–62; 106 at 15–

17; 106-1 at 13–14.

Taking this evidence together and using Maui as guide, the court finds that

BWR has “adequately support[ed] its motion” for summary judgment on its

groundwater CWA claims. See Cynergy, 706 F.3d at 1326. Thus, “the burden shifts

to [Drummond] to show that specific facts exist that raise a genuine issue for trial.”

See id.

9 Brown’s 2017 report stated that “[t]he data confirm that some metals are present in the GOB

waste at concentrations higher than the USEPA RSLs, as well as above nearby background

concentrations in soils. These metals can be readily dissolved into water under the acidic

conditions present in the mine waste.” Doc. 53-6 at 50; id. at 59 (describing “eight dissolved

metals with concentrations in groundwater samples collected at the Site significantly above the

concentrations detected in the upstream sample from the Locust Fork”). Brown also noted the

transport of AMD via groundwater in this report:

[G]roundwater within GOB waste was present in monitoring wells installed by

PELA in the early 1980’s. Metals in the GOB waste then dissolved directly into the

groundwater flowing through the waste. These toxic pollutants would discharge

directly to the Locust Fork through river-bed sediments and at near-shore seeps, or

discharge to Tributary 1 where they would be transported with surface water to the

Locust Fork. In the new GOB waste areas, likely created from 1974 to 1982, even

with improved grading, cover, revegetation, and drainage, some precipitation still

infiltrated and percolated to groundwater.

Id. at 69 (internal citations omitted).

B.

Drummond essentially counters that (1) Brown’s data is insufficient and his

opinions are speculative, see doc. 112 at 4–5; (2) BWR’s other experts fail to negate

issues of fact, see id. at 5, 11; (3) BWR mischaracterizes Drummond’s expert

reports, which demonstrate that the evidence does not prove “the actual discharge of

a pollutant by way of groundwater as groundwater,” id. at 12–15, 20; and (4) even

if the evidence establishes the functional equivalent of a direct discharge of pollution

via groundwater, this evidence cannot support a judgment, id. at 20.

1.

Drummond first argues that the data Brown collected during field

measurements cannot support his opinions and that his opinions constitute

speculative interpretation. See id. at 4–5. Drummond contends that BWR’s “entire

case” rests on “seven surface water ‘field measurements’ taken on August 1, 2017

using a portable hand-held pH and TDS/EC meter and on certain additional data

obtained on August 16-18, 2017.” Id. These field measurements, Drummond

claims, consist only of “minimal components” that include 10 soil samples, 15 water

samples that Drummond calls “surface water samples” (although BWR calls them

“groundwater seeps”), four groundwater samples, and “some electromagnetic

readings of no conclusive significance.” Id.

Drummond deems this an “obvious lack of data upon which Brown attempts

to predicate his opinions.” Id.10 Relatedly, Drummond states that Brown “conflates

surface water and groundwater” and that his “speculation and conjecture are not

admissible evidence.” Id. at 7. See also id. at 10. It is not obvious how or why

Brown’s data is lacking or that his opinions are purely speculative. Drummond says

that Brown’s samples “are not scientific evidence,” that Brown admits certain

instrument readings “are subject to interpretation,” and that because Brown lacks

particular data, his estimations are similarly rendered “speculative” and

“inadmissible.” Id. at 7–8.

However, merely stating that data is lacking does not make it so, and

subsequently labeling expert conclusions as “speculative” does not necessarily raise

a genuine dispute. As the Circuit put it, “[a] nonmoving party . . . cannot meet the

burden of coming forth with relevant competent evidence by simply relying on legal

conclusions or evidence which would be inadmissible at trial. The evidence

presented cannot consist of conclusory allegations or legal conclusions.” Avirgan v.

Hull, 932 F.2d 1572, 1576 (11th Cir. 1991) (internal citation omitted). Rather, a

party asserting that a genuine dispute exists “must support the assertion by . . . citing

to particular parts of materials in the record” or by “showing that the materials cited

10 See also id. at 5 (“The only undisputed facts regarding groundwater are the laboratory analytical

results from these four piezometer samples. The analyticals show what they show; they do not

show what they do not show. Everything else is interpretation.”).

do not establish the absence . . . of a genuine dispute.” See FED. R. CIV. P. 56(c). If

Drummond, for example, cited expert testimony that particularly explained why

Brown’s data insufficiently supports his conclusions or that specifically identified

where Brown veers into unmoored speculation, the court could determine that a

genuine dispute persisted. Without evidence buttressing these assertions, however,

the court cannot simply take counsel’s word for it that BWR’s data is “obvious[ly]”

lacking, see doc. 112 at 4–5, or accept counsel’s own interpretations of Brown’s

opinions.11 Indeed, “[o]n summary judgment review, a court cannot simply accept

counsel’s ipse dixit for an unsupported factual statement in a brief.” Jones v. Coty

Inc., 362 F. Supp. 3d 1182, 1195 (S.D. Ala. 2018).

Drummond next asserts that AMEC Foster Wheeler’s and CH2M’s 2017 and

2018 reports “directly oppose[]” the “numerous deficiencies in Brown’s 2017

report.” Doc. 112 at 4–5 (citing docs. 50-14; 50-16; 61-1; 61-3). However,

Drummond does not cite specific pages of these reports that refute Brown’s

11 Drummond also insists that Brown, “confounding the meaning of terms, also speaks of

‘groundwater’ seeps, but is really discussing surface water given that the water is visible.” Doc.

112 at 6. See also id. at 7–8. But contrary to Drummond’s assertion, Brown rests his groundwater-

related conclusions not solely on the observation of groundwater seeps but also on sampling data.

See doc. 53-6 at 48, 50–51. Moreover, Drummond does not adequately explain why groundwater

seeps do not indicate groundwater. The only expert that Drummond cites for these conclusions is

Maggie Weems, who stated that she “would consider the seep to be not groundwater.” Id. at 6

(citing doc. 61-30, 114:17–19). Again, the court cannot accept counsel’s unsupported statements

as to the propriety or logic of Brown’s observations and conclusions, and one expert’s testimony

that she “would consider the seep to be not groundwater,” without more, fails to support the

assertion that BWR’s water samples “are not scientific evidence of the non-visible movement of

groundwater as groundwater from the property into the Locust Fork by ‘bed-seepage,’ nor can

such movement be established by dragging some wires behind a boat.” See id. at 7–8.

opinions, instead citing generally four documents totaling over 400 pages.12 To be

sure, Drummond seems to argue that somewhere within these documents, which

contain, among other things, these expert reports, lies a silver bullet. But judges “are

not like pigs, hunting for truffles buried in briefs,” and courts “are not required to

ferret out delectable facts buried in a massive record, like the one in this case.”

Chavez v. Sec’y Fla. Dep’t of Corr., 647 F.3d 1057, 1061 (11th Cir. 2011) (quoting

United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)). Drummond must cite

to “particular parts of materials in the record” or demonstrate that BWR’s cited

materials do not actually establish the absence of a genuine dispute. FED. R. CIV. P.

56(c). This it has failed to do.

In light of BWR’s specific arguments and citations to expert opinions,

Drummond’s broad gesture to over 400 pages of evidentiary submissions “fails to

properly address [BWR’s] assertion[s] of fact.” See id. 56(e). The court therefore

agrees with BWR that Drummond “cites nothing from either report that rebuts any

12 Document 50-14 is a 130-page exhibit containing the deposition of Lynn Sisk of CH2M

followed by “CH2M Response to Plaintiff’s Reports Regarding the Former Maxine Mine Site Near

Maxine, Jefferson County, Alabama” and over 70 pages of graphs, charts, and tables. See doc. 50-

14. Likewise, document 50-16 is a 131-page exhibit containing various charts and tables, the 2017

Alabama Fish Consumption Advisories, and another CH2M report, see doc. 50-16, and document

61-1 is a 109-page exhibit beginning with the Weems declaration that introduces several reports

by or for AMEC Foster Wheeler, see doc. 61-1. Finally, document 61-3 is a 109-page exhibit with

various laboratory results, additional opinions from AMEC Foster Wheeler, and rebuttal reports

by Wood Environment & Infrastructure Solutions, Inc. See doc. 61-3.

fact or opinion by Brown pertinent to this motion.” See doc. 114 at 5 n.8.13 Because

the court may accordingly consider BWR’s assertions “undisputed for purposes of

the motion,” see FED. R. CIV. P. 56(e), Drummond’s argument that Brown’s data and

opinions are speculative and lacking fails to establish a genuine issue for trial.

2.

Drummond next argues that, after excluding Brown’s opinions, BWR’s

evidence rests only on the opinions of Nelson Brooke, Barry Sulkin, and Gordon

Johnson, and none of these opinions apparently negate issues of fact as to BWR’s

groundwater claims. See doc. 112 at 11. Drummond fails to cite specific portions

of materials in the record, such as statements in depositions, affidavits, or

declarations, that explain why these experts’ opinions are insufficient. See FED. R.

13 Later in its brief, Drummond cites several pages of AMEC Foster Wheeler’s 2017 report,

arguing they demonstrate “problems and shortcomings with the EM31 and ER data relied upon by

Brown—including, particularly, his selective interpretation of that data.” Doc. 112 at 15 (citing

doc. 61-1 at 18–19, 29–31). For its part, BWR asserts that the “cited reports barely mention

groundwater. At most, the AMEC report refers to alleged issues with ERT testing, generally, but

it never directly refutes Brown’s interpretations or conclusions about the data.” Doc. 114 at 5 n.8.

After reviewing the cited pages of the AMEC Foster Wheeler report, the court disagrees with BWR

that the report “barely mention[s] groundwater.” Id. But the court does agree that these portions

do not directly refute Brown’s groundwater-related opinions. The cited pages cast doubt on the

extent to which the Locust Fork has become polluted but do not appear to rebut Brown’s data- and

observation-driven opinions that AMD infuses groundwater that flows from the refuse pile to the

Locust Fork. See, e.g., doc. 61-1 at 19. And Drummond’s contention also ignores that the court

underscored BWR’s “extensive evidence of historical and ongoing discharges” of AMD from the

refuse pile into the Locust Fork in its prior opinion and order, where the court noted that “BWR

collected numerous surface water, sediment, and groundwater samples in 2016 and 2017 from

various locations at the site” that its experts said revealed the presence of AMD. Doc. 93 at 17–

18 (citing docs. 55-3 at 2; 55-6 at 60–51, 76, 79; 54-3 at 25–30; 56-1 at 3–8). This evidence led

the court to conclude that the opinions of Drummond’s experts “[were] insufficient to create an

issue of fact regarding the discharge of AMD” into the Locust Fork. Id. at 20.

CIV. P. 56(c). And even setting this issue aside, a review of the briefing indicates

that BWR does not rely on the opinions of Brooke, Sulkin, or Johnson to support its

motion on the groundwater CWA claims. See generally doc. 106 (relying only on

Brown’s materials); doc. 114 at 6 n.11 (“For its groundwater claims, BWR is not

relying on any of the testimony of Nelson Brooke, Barry Sulkin, or Gordon Johnson

cited by Drummond.”). Thus, this contention fails to raise a genuine issue for trial

on the groundwater CWA claims.

3.

Drummond also asserts that, by claiming that Lynn Sisk and Thomas Simpson

agree with BWR about the flow of polluted groundwater into the Locust Fork, BWR

mischaracterizes Sisk’s and Simpson’s testimony, see doc. 112 at 12, and that

Drummond’s experts in fact highlight the relatively small amounts of groundwater

present at the Site, see id. at 13–15. These arguments drive at one conclusion: that

“there is no evidence of groundwater being discharged as subterranean groundwater

to the Locust Fork.” Id. at 13–14, 20. In support, Drummond cites testimony from

Sisk, who stated that Brown was “speculating” about the depth of groundwater;

Leslie Noble, who noted that the area where the piezometers were set “is not going

to produce a great deal of water”; Bruce Wielinga, who testified that the “data says

to [him] that there is not a robust or very large groundwater flow system out

there. . . . [and] that there’s not a lot of groundwater”; and Dwight Hicks, who

testified that he saw “no indication that groundwater is moving to the river” because

“[e]verything that [he] see[s] down there is more related to the surface.”14 Id. at 14–

15.

That the groundwater flows are small in volume relative to the surface water

system may weaken BWR’s argument. But accepting as true that the Site contains

a relatively small groundwater system, as Drummond’s experts opined, the court

finds this assertion insufficient to raise a genuine dispute as to whether the

groundwater discharges violate the CWA. Even if data and observations indicate

that “there is not a robust or very large groundwater flow system” at the Site, see id.

at 14–15, this does not contradict the ultimate conclusion that the groundwater flows

functionally equal a direct discharge of pollutants under Maui.15

On “the most important factors in most cases,” time and distance, Maui, 140

S. Ct. at 1476, BWR has presented evidence that groundwater carrying AMD flows

14 Hicks, however, also testified that he had not “looked for [groundwater] seeps along the bank”

and did not know if groundwater seeps existed at the Site. See doc. 53-1 at 62.

15 Compare Hawai’i Wildlife Fund v. Cty. of Maui, No. 12-00198 SOM/KJM, 2021 WL 4898661,

at *1 (D. Haw. Oct. 20, 2021) (denying defendant’s motion for reconsideration of summary

judgment) (“In determining that the . . . discharge is the functional equivalent of a direct discharge

into navigable waters, this court examined each of the seven factors enumerated by the Supreme

Court, paying particular attention to the time and distance factors . . . . In the course of its analysis,

this court considered the volume of the discharge, a factor not listed by the Supreme Court. The

massive volume was relevant to and informed this court’s decision, but it was not essential to this

court’s determination.”) with Peconic Baykeeper, Inc. v. Harvey, 13-CV-6261 (JMA) (SIL), 2021

WL 4755623, at *7 (E.D.N.Y. May 21, 2021) (holding that three of the seven Maui factors

“remain[ed] sharply in dispute to such an extent that they outweigh[ed] the time and distance

factors such that summary judgment should be denied”).

into the Locust Fork in a matter of days, traveling a short distance from the refuse

pile through and under the lower dam on the shore of the Locust Fork. See docs. 53-

6 at 37 (describing “the GOB pile on a bluff that forms the westerly bank of the

Locust Fork”); 106 at 11 (“Brown estimates that the contaminated groundwater

discharges to the Locust Fork via seeps over a distance of only 10 to 30 feet; and

approximately 30 to 100 feet to the [Locust Fork] as bed seepage.”); 106-1 at 4.

BWR has also presented evidence that the groundwater discharges satisfy the

remaining five factors relevant to the functional-equivalent test under Maui. See

doc. 106 at 14–19. The only factor arguably weakened by Drummond’s assertion

that the groundwater system is “small” or “not robust” is the fifth factor, “the amount

of pollutant entering the navigable waters relative to the amount of the pollutant that

leaves the point source.” However, the other six factors, including the two most

important factors, do not appear sharply disputed based on the evidence Drummond

cites. Applying Maui, the court is unpersuaded that a reasonable jury could find for

Drummond on the issue of whether the groundwater constitutes a functional

equivalent of a direct discharge under the CWA.

4.

Finally, Drummond argues that even if evidence establishes the functional

equivalent of a direct discharge of pollution to the Locust Fork, this evidence is

insufficient to support a judgment. Doc. 112 at 20. In support, Drummond asserts

that the groundwater discharges have no more than a de minimis impact on the

Locust Fork. See id. at 16 n.15, 20. However, Drummond does not cite legal

authority squarely supporting this position, and Drummond acknowledges that the

Maui Court failed to address the issue. Id. at 16 n.15.

The CWA states that absent statutory compliance, i.e., the requisite permit,

“the discharge of any pollutant by any person shall be unlawful.” 33 U.S.C.

§ 1311(a) (emphasis added). Interpreting this “zero-discharge” provision, the

Circuit held that where a developer could not obtain an NPDES permit, the developer

made “every good-faith effort” to comply with the CWA and relevant pollution

control measures, and the stormwater discharges at issue “pose[d] no threat to human

health, and [] much of the damage [caused by the discharges would] be reversed with

the passage of a relatively short amount of time,” the zero-discharge rule did not

apply. Hughey v. JMS Dev. Corp., 78 F.3d 1523, 1530 (11th Cir. 1996). But Hughey

cautioned that “[t]he facts of this case necessarily limit[ed] [its] holding to situations

in which the stormwater discharge is minimal.” Id.16

The Circuit later explained that Hughey “staked out a path [that] developers

wishing to avoid liability can follow where no [NPDES] permit is available and

16 Specifically, in Hughey, a Georgia homeowner sued a residential developer for discharging

stormwater without an NPDES permit, but NPDES permits covering stormwater were not

available in the state at the time. Id. at 1524. The Circuit also noted that “nothing [the developer]

could do would prevent all rain water discharge” and that the developer obtained a county permit,

suggesting the developer “would have been able to obtain an NPDES permit” if one had been

available. Id. at 1530.

where it would otherwise be impossible to develop their land without causing some

discharge” by requiring the developer to “be in good-faith compliance with all state

and local requirements prior to any discharge” and to “reduce the discharge to a

minimum.” Driscoll v. Adams, 181 F.3d 1285, 1289 (11th Cir. 1999). The Circuit

held that “but for the limited exception recognized in [Hughey], ‘[t]he amended

CWA absolutely prohibits the discharge of any pollutant by any person, unless the

discharge is made according to the terms of [an NPDES] permit.’” Id. Because the

facts of this case do not resemble the scenarios referenced in Hughey and Driscoll,

Drummond cannot claim this limited exception to CWA liability.

Additionally, the Maui Court recognized that “[t]he underlying statutory

objectives” of the CWA would “provide guidance” to courts determining whether

groundwater discharges violate the CWA. See 140 S. Ct. at 1477. The CWA “was

designed to prevent pollutants from harming navigable waters and their ecosystems

or, at least, to limit that harm by limiting the amount of pollutant being discharged

pursuant to a permit.” Maui, 2021 WL 3160428, at *17; see 33 U.S.C. § 1251(a).17

To achieve that end, the CWA does not mandate “some minimum amount” of

pollution to trigger its permitting requirement; the CWA straightforwardly prohibits

“the discharge of any pollutant.” Maui, 2021 WL 3160428, at *17; 33 U.S.C.

17 For example, “it is the national goal that the discharge of pollutants into the navigable waters be

eliminated by 1985.” 33 U.S.C. § 1251(a)(1).

§ 1311(a). See also Patronas v. Marshall Durbin Food Corp., No. CV-03-J-749-J,

2005 WL 8158435, at *11 (N.D. Ala. Mar. 17, 2005).18

Therefore, whether the polluted groundwater flowing from the refuse pile into

the Locust Fork significantly contributes to ecological damage at the Locust Fork

does not bear on the question of whether the CWA requires Drummond to have a

permit to discharge the polluted groundwater in the first instance. Drummond has

thus failed to raise a genuine issue of material fact as to its liability under the CWA

for discharging AMD into the Locust Fork via groundwater.

V.

In sum, BWR has established the absence of a genuine dispute regarding

whether the groundwater discharges carrying AMD into the Locust Fork constitute

the “functional equivalent of a direct discharge” of pollution under the CWA.

Because this represented the only remaining element in dispute as to BWR’s

groundwater CWA claims, see doc. 93, BWR is entitled to summary judgment on

its groundwater CWA claims. BWR’s renewed motion for summary judgment, doc.

106, is GRANTED.

18 In Patronas, Judge Inge Johnson rejected the defendant’s argument that the plaintiff could not

prove that NDPES permit violations caused harm to certain waterways. Id. at *11. Relevant here,

Judge Johnson found “sufficient proof of causation in the record for a finding of liability” under

the CWA and quoted language stating that the CWA “recognizes neither a good faith nor a de

minimis defense.” Id. (emphasis added) (quoting Int’l Union, United Auto. Aerospace & Agric.

Implement Workers of Am., AFL-CIO v. Amerace Corp., 740 F. Supp. 1072, 1081–82 (D.N.J.

1990)).

DONE the 12th day of January, 2022.

ABDUL K. KALLON

UNITED STATES DISTRICT JUDGE

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