author: NIEMEYER, Circuit Judge:

text:
    Neal BLANKENSHIP; Emma Gay Blankenship, Plaintiffs-Appellants, v. CONSOLIDATION COAL COMPANY, a Delaware Corporation; Island Creek Coal Company, a Delaware Corporation, Defendants-Appellees, and Consol Energy, Inc., a Delaware Corporation, Defendant. Dianna L. Graham; Anna Pearl Ratliff; Ira Gordon Ratliff; Connie Ratliff, Plaintiffs-Appellants, v. Consolidation Coal Company, a Delaware Corporation; Island Creek Coal Company, a Delaware Corporation, Defendants-Appellees, and CNX Gas Company, LLC, a Virginia Limited Liability Company; Consol Energy, Inc., a Delaware Corporation, Defendants.
    No. 15-2480, No. 15-2482
    United States Court of Appeals, Fourth Circuit.
    Argued: December 8, 2016
    Decided: March 9, 2017

      ARGUED: April Dawn Ferrebee, MASTERS LAW FIRM, LC, Charleston, West Virginia; Terrence Shea Cook, T. SHEA COOK, PC, Richlands, Virginia, for Appellants. James F. Neale, Jonathan Todd Blank, MCGUIREWOODS LLP, Char-lottesville, Virginia, for Appellees. ON BRIEF: Marvin W. Masters, MASTERS LAW FIRM, LC, Charleston, West Virginia, for Appellants. Larissa LPC Sneath-ern, Charlottesville, Virginia, Tennille J. Checkovich, Lena L. Busscher, MCGUIREWOODS LLP, Richmond, Virginia; David Grant Altizer, Mandy Varney French, ALTIZER, WALK AND WHITE PLLC, for Appellees.
    Before NIEMEYER, KING, and AGEE, Circuit Judges.
   NIEMEYER, Circuit Judge:

In March 1994, Consolidation Coal Company obtained the necessary government permit to “dewater” its Buchanan Mine, an underground coal mine in Buchanan County, Virginia. It then began to pump the water from its mine into the nearby Beatrice Mine, an exhausted coal mine owned by Island Creek Coal Company, which authorized Consolidation Coal to do so. Consolidation Coal completed its dewatering operation in 2003.

More than 15 years after Consolidation Coal began its dewatering operation, the plaintiffs, who own property over portions of the Beatrice Mine, commenced two different but parallel actions in 2011 and 2013 against Consolidation Coal, Island Creek Coal, and others, asserting state causes of action for trespass, negligence, nuisance, and related torts. The complaints alleged that, by filling the Beatrice Mine with water, Consolidation Coal damaged the plaintiffs’ property interests in the exhausted Beatrice Mine and unjustly enriched itself. They demanded hundreds of millions of dollars in damages, punitive damages, and injunctive relief.

The district court granted the defendants’ motions for summary judgment on the ground that Virginia’s statutes of limitations governed and barred the plaintiffs’ claims and that the plaintiffs could not, as they argued, benefit from the discovery rule provided by the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601-9675.

Challenging the district court’s rulings, the plaintiffs mainly contend on appeal that CERCLA’s discovery rule preempts Virginia’s statutes of limitations and, as a result, Virginia’s statutes of limitations began to run when the plaintiffs knew or should have known of their alleged injury. 42 U.S.C. § 9658. The plaintiffs assert that, because they did not learn of their claims until late 2010 or early 2011, their actions filed in 2011 and 2013 were timely.

For the reasons that follow, we affirm the judgments of the district court.

I

Because Consolidation Coal’s mining operations in the Buchanan Mine were being hampered by the accumulation of water, Consolidation Coal sought to pump the water from the mine into the nearby Beatrice Mine, which had been exhausted in 1972. To undertake this “dewatering” operation, it reached an agreement with Island Creek Coal, which owned the Beatrice Mine. It also applied for a revision to its existing mining permit from the Virginia Department of Mines, Minerals and Energy, a division of the Department of Mined Land Reclamation, and gave formal notice to the U.S. Department of Labor’s Mine Safety and Health Administration. After submitting its application, it published four notices of its application in a local newspaper and filed the actual application for public view at the local courthouse, as required by law.

The notice that Consolidation Coal published informed the public of its intent “to Establish a New Mine Dewatering Pump System for Coal Surface Mining/NPDES Permit”; advised the public that the application was on file for public view at the Buchanan County Courthouse; and invited “any person whose interests [were] or [might] be adversely affected ... [to] submit written comments or objections concerning the proposed change.” The application on public file at the Buchanan County Courthouse further described the intent of the proposed operation to “transfer ... mine water from the Buchanan Mine to the Beatrice Mine via overland pipe” and provided the details of where the operation was to take place.

The Virginia Department of Mines, Minerals and Energy approved Consolidation Coal’s application in March 1994, and Consolidation Coal then began pumping water from the Buchanan Mine into the Beatrice Mine, completing its activities in 2003.

During 2005 and 2006, numerous local newspaper articles reported the continuing protests by local citizens over Consolidation Coal’s mining activities and repeatedly referred to Consolidation Coal’s dewater-ing operation.

In April 2013, about 19 years after Consolidation Coal began dewatering the Buchanan Mine, Neal Blankenship and Emma Gay Blankenship, who own property over a portion of the Beatrice Mine, commenced an action in state court against Consolidation Coal, Island Creek Coal, and others. After voluntarily dismissing that action without prejudice, they commenced this action in federal court on July 29, 2014, invoking diversity jurisdiction and alleging state law claims of trespass, unjust enrichment, negligence, nuisance, and waste. They demanded over $500 million in damages, $350,000 per instance of trespass in punitive damages, and injunctive relief.

Dianna Graham, Anna Pearl Ratliff, Ira Gordon Ratliff, and Connie Ratliff, also property owners over a portion of Beatrice Mine, commenced a separate action in state court against Consolidation Coal, Island Creek Coal, and others, on May 31, 2011. After voluntarily dismissing that action without prejudice, they commenced this action in federal court on January 30, 2013, again invoking diversity jurisdiction and alleging trespass, unjust enrichment, negligence, nuisance, waste, and, in addition, conversion. They demanded over $300 million in damages, punitive damages of $350,000 for each trespass, and injunctive relief.

In two orders dated October 26, 2015, the district court granted Consolidation Coal’s and Island Creek Coal’s motions for summary judgment on the ground that the plaintiffs’ claims were barred by Virginia’s statutes of limitations of three years for the unjust enrichment claim and five years for the remaining claims. Relying on First United Methodist Church of Hyattsville v. U.S. Gypsum, Co., 882 F.2d 862 (4th Cir. 1989), the court rejected the plaintiffs’ argument that the state statutes of limitations had been preempted by CERCLA, which provides a discovery rule in some circumstances for-when state statutes of limitations begin to run. Alternatively, the court concluded that even if CERCLA preempted the state statutes of limitations, the CERCLA discovery rule would not aid the plaintiffs because they reasonably should have known about their claims more than five years before they filed their actions.

From the district court’s judgments dated October 26, 2015, the plaintiffs in each action appealed. By order dated December 10, 2015, we consolidated the two appeals.

II

The district court held that the plaintiffs’ state law causes of action were barred by Virginia’s statutes of limitations. It concluded that, under Virginia law, those statutes of limitations began to run when the plaintiffs’ claims accrued and that their claims accrued when their injuries occurred. The court explained that, because Consolidation Coal began pumping water from the Buchanan Mine into the Beatrice Mine under the plaintiffs’ property in 1994, the plaintiffs’ alleged injuries occurred more than five years before the plaintiffs commenced their actions in 2011 and 2013 and therefore the actions were barred, as the longest applicable limitation period was five years, see Va. Code Ann. § 8.01-243(B), while the limitation period for the plaintiffs’ unjust enrichment claims was three years, see id. § 8.01-246(4).

Virginia law provides that, for “every action for which a limitation period is prescribed, the right of action shall be deemed to accrue and the prescribed limitation period shall begin to run from, the date the injury is sustained in the case of ... damage to property.” Va. Code Ann. § 8.01-230 (emphasis added). And this has been construed to mean that the limitation period begins whenever “any injury, however slight is caused ..., even though additional or more severe injury or damage may be subsequently sustained.” St. George v. Pariser, 253 Va. 329, 484 S.E.2d 888, 890 (1997). Unlike some jurisdictions, Virginia does not have a discovery rule that causes statutes of limitations to begin running when plaintiffs knew or should have known of their injury. See Comptroller of Va. ex rel. Va. Military Inst. v. King, 217 Va. 751, 232 S.E.2d 895, 900 (1977). Thus, the plaintiffs’ lawsuits first filed in state court in 2011 and 2013 were clearly barred by Virginia’s statutes of limitations of three years for unjust enrichment and five years for the plaintiffs’ other causes of action.

The plaintiffs do not take issue with these principles of Virginia law. They argue, however, that CERCLA preempts Virginia law and modifies the date on which Virginia’s statutes of limitations begin to run by applying a discovery rule, as set forth in 42 U.S.C. § 9658. Specifically, CERCLA’s discovery rule provides that the commencement date for the running of a state statute of limitations is the date that “the plaintiff knew (or reasonably should have known) that the personal injury or property damages ... were caused or contributed to by the hazardous substance or pollutant or contaminant concerned.” 42 U.S.C. § 9658(b)(4)(A). The plaintiffs argue that because they did not discover the property damage that they alleged until late 2010 or early 2011, their lawsuits commenced in 2011 and 2013 were timely.

The district court rejected the plaintiffs’ argument because the plaintiffs failed to allege facts giving rise to a CERCLA claim as required for CERCLA to preempt state statutes of limitations. The court explained that the Beatrice Mine lies approximately 1,000 to 2,000 feet below the surface of the plaintiffs’ properties and that the plaintiffs conceded that they, had never sought, nor had plans to seek, to use the mine voids. Moreover, the court observed that 9 to 13 percent of the water in the Beatrice Mine had seeped there naturally and was not the result of Consolidation Coal’s pumping operation and therefore that it would not have been practicable even to consider using the mine voids. Thus, the court concluded that “the plaintiffs have not asserted a CERCLA cause of action, nor could they, because there is no evidence that they suffered any damages caused by hazardous substances.” And without a CERCLA claim, the court reasoned, plaintiffs cannot take advantage of CERCLA preemption and its discovery rule, citing First United Methodist Church, 882 F.2d at 869.

We agree with the district court’s conclusion. In an unusual manner, CERCLA uses preemption to modify state statutes of limitations with respect to state causes of action by imposing a federal discovery rule in some circumstances. It provides:

In the case of any action brought under State law for personal injury, or property damages, which are caused or contributed to by exposure to any hazardous substance, or pollutant or contaminant, released into the environment from a facility, if the applicable limitations period for such action (as specified in the State statute of limitations or under common law) provides a commencement date which ■ is earlier than the federally required commencement date, such period shall commence at the federally required commencement date in lieu of the date specified in such State statute.

42 U.S.C. § 9658(a)(1) (emphasis added). And “federally required commencement date” is defined as

the date the plaintiff knew (or reasonably should have known) that the personal injury or property damages ... were caused or contributed to by the hazardous substance or pollutant or contaminant concerned.

Id. § 9658(b)(4)(A) (emphasis added).

While the district court held, and the defendants maintain, that the preemptive force of § 9658 applies only if the defendants’ conduct could give a plaintiff a CERCLA cause of action, the plaintiffs contend that § 9658 preempts even where CERCLA does not itself provide a cause of action. We have, however, previously resolved this issue contrary to the plaintiffs’ position, holding that the preemptive force of § 9658 applies only if CERCLA provides a cause of action to the plaintiff, whether or not asserted. See First United Methodist Church, 882 F.2d at 869; see also Barnes ex rel. Estate of Barnes v. Koppers, Inc., 534 F.3d 357, 365 (5th Cir. 2008) (“[W]e conclude that § 9658 operates only where the conditions for a CERCLA cleanup are satisfied”).

In First United Methodist Church, the plaintiff contended that § 9658 preempted Maryland’s statute of limitations for a state cause of action for the removal of asbestos found in a church ceiling. We rejected this contention, concluding that because CERCLA does not provide a cause of action for asbestos removal, § 9658’s discovery rule was inapplicable. We explained that to preempt state statutes of limitations in this context would be “to stretch [CERCLA] far beyond its intended reach,” observing that “Congress could not have intended for § 9658 to preempt state Jaw in an area” outside of CERCLA’s scope. First United Methodist Church, 882 F.2d at 867-69. We reasoned that “[t]o conclude otherwise would be contrary to the principles of comity which demand that in our federal system, state law not be preempted unless it is the clear and manifest purpose of Congress.” Id. at 869 (internal quotation marks and citation omitted).

This principle is important. Were we to interpret § 9658 to preempt state law in a case involving harms for which CERCLA itself provides no remedy, we would not only be departing from the stated scope of CERCLA, we would be distorting the traditional relationship between state and federal law, which limits federal preemption to when Congress has clearly provided for it. See Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996) (explaining that the presumption against preemption of state law causes of action rests on the fact that the States are “independent sovereigns in our federal system”). It is not surprising, therefore, that most of the other courts to have considered the preemptive force of § 9658 have drawn the same conclusion that we did in First United Methodist Church. See, e.g., Barnes, 534 F.3d at 364; Covalt v. Carey Canada, Inc., 860 F.2d 1434, 1436-37 (7th Cir. 1988); Elec. Power Bd. Of Chattanooga v. Westinghouse Elec. Corp., 716 F.Supp. 1069, 1079-80 (E.D. Tenn. 1988), aff'd, 879 F.2d 1368 (6th Cir. 1989); Angle v. Koppers, Inc., 42 So.3d 1, 8 (Miss. 2010); Greco v. United Techs. Corp., 277 Conn. 337, 890 A.2d 1269, 1286 (2006).

The relevant question for applying § 9658 thus reduces to whether the facts of the plaintiffs’ complaints give rise to claims that could be asserted under CERCLA. We conclude that they do not for at least two reasons: (1) Parties may not bring a CERCLA claim when they have not stated a basis for recovery of response and remediation costs with respect to a hazardous waste site; and (2) in any event, they may not bring a CERCLA claim for releases of hazardous substances that are federally permitted.

Addressing the first reason, we conclude that the plaintiffs have failed to allege facts suggesting a possible CERC-LA claim and therefore that they are unable to assert that CERCLA preempts the limitations for state causes of action. While the plaintiffs allege, in various ways, that placing water in the voids left in the Beatrice Mine damaged their property interests by reducing the value of those interests, their allegations do not support any claim for the recovery of clean-up costs. In them complaints, they describe how filling the mine voids with water reduced the value of their property and precluded them from further developing it. And in the same vein, they allege that the water from the Buchanan Mine obstructed their reasonable use of the mine’s voids. The Graham and Ratliff plaintiffs allege further a possible loss of methane gas that may have remained in the Beatrice Mine, as the pumped-in water may have displaced the gas to portions of the mine not under their property. The plaintiffs also claim that Consolidation Coal was unjustly enriched by storing the water pumped from its Buchanan Mine without paying the plaintiffs for the storage space. But none of these alleged harms can form the basis of a CERCLA claim.

CERCLA was enacted in 1980 for the limited purpose “to promote the timely cleanup of hazardous waste sites and to ensure that the costs of such cleanup efforts [are] borne by those responsible for the contamination.” Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S. 599, 602, 129 S.Ct. 1870, 173 L.Ed.2d 812 (2009) (internal quotation marks and citation omitted); see also 42 U.S.C. § 9607(a) (for contamination on private property, establishing liability only for the costs of cleaning up hazardous waste sites and for health assessment). Not only have the plaintiffs conceded that they have not “incurred any cleanup costs,” but the facts they have alleged would not allow the district court to conclude that their claims include or could include costs to clean up a hazardous waste site. Instead, they only seek trespass-type damages for aqueous interference with their interests and unjust enrichment damages for the storage of water. Such a suit is far removed from the concerns motivating CERCLA and therefore cannot support a claim for CERCLA preemption.

Because § 9658 “operates only where the conditions for a CERCLA cleanup are satisfied,” Barnes, 534 F.3d at 365, and the plaintiffs’ claims are state-law claims for damages that “stretch far beyond [CERC-LA’s] intended reach,” First United Methodist Church, 882 F.2d at 867, § 9658 does not preempt Virginia’s statutes of limitations to give the plaintiffs the benefit of the CERCLA discovery rule.

Addressing the second reason that also precludes CERCLA preemption, the only releases underlying the plaintiffs’ claims are the transfers of water from the Buchanan Mine to the Beatrice Mine. Those transfers, however, were permitted by a revision in March 1994 to Consolidation Coal’s existing mining permit, and therefore those transfers cannot be the basis of a CERCLA claim. See 42 U.S.C. § 96070') (excluding CERCLA liability for any “federally permitted release”).

Before it began its dewatering operation, Consolidation Coal applied for a revision to its mining permit “to dewater the North Gob seal area of the Buchanan No. 1 Mine by pumping from a dewatering bore hole and discharging the water in a Beatrice Mine borehole.” And the approved public notice alerted the public to a “Revision [to mining Permit No. 1400047] to Establish a New Mine Dewatering Pump System for Coal Surface Mining/NPDES Permit under Chapter 19, Title 45.1 Code of Virginia.” Finally, in its letter of March 7, 1994, the Virginia’s Department of Mines, Minerals and Energy approved the permit revision, stating, “Your operation under Permanent Program Permit Number 1400047 has been revised as requested.”

While the permit revision under which Consolidation Coal transferred the water from its mine to the Beatrice Mine was issued by the Virginia Department of Mines, Minerals and Energy, the permit nonetheless served as a federally authorized permit under federal law. The Clean Water Act allows the EPA to enable state agencies to issue National Pollutant Discharge Elimination System (“NPDES”) permits, which authorize the discharge of pollutants. 33 U.S.C. § 1342(b). And the Virginia Department of Mines, Minerals and Energy is specifically designated to issue these permits and did so in this case. 9 Va. Admin. Code 25-31-940.

Because Consolidation Coal’s water transfer was permitted by a state agency that had been delegated authority by federal law, it amounted to a federally permitted transfer and could not serve as a basis for a cause of action under CERCLA. See 42 U.S.C. § 96070).

Ill

Even were the plaintiffs to have the benefit of § 9658’s discovery rule, they still could not satisfy the applicable statutes of limitations. Section 9658 provides that the “commencement date” when statutes of limitations begin to run is “the date the plaintiff knew (or reasonably should have known) that the ... property damages ... were caused.” 42 U.S.C. § 9658(b)(4)(A) (emphasis added). We conclude, based on the extensive record of publicity about Consolidation Coal’s activities in this case, that the plaintiffs reasonably should have known of their damages more than five years before they commenced their actions in 2011 and 2013.

As required by law, Consolidation Coal published notice of its application for a revision of its mining permit to allow the dewatering of its Buchanan Mine in the Richlands News-Press for four. consecutive weeks, beginning November 4, 1993. The notice provided:

Consolidation Coal Company ... is applying to the Virginia Division of Mined Land Reclamation for Revision to Permit No. 1400047 in order to establish a dewatering pump system for the Buchanan Mine.
A copy of the application materials will be available for inspection and public comment at the Buchanan County Courthouse. Any person whose interests are or may be adversely affected by the proposed change ... may within 30 days of the (date of 4th publication) submit written comments or objections concerning the proposed change.

The application itself was filed in the Buchanan County Courthouse, and it remained there for public view from November 1, 1993, through January 20, 1994. The application, which gave farther detail of the proposed operation, stated that Consolidation Coal was seeking a revision to its permit for the “transfer of mine water from the Buchanan Mine to the Beatrice Mine via overland pipe” and included detailed descriptions of the location and a map. The Virginia Department of Mines, Minerals and Energy specifically determined that Consolidation Coal’s publications satisfied all applicable requirements.

Moreover, following issuance of the permit revision in March 1994, Consolidation Coal began openly constructing a pipeline above ground for the transfer.

In addition to Consolidation Coal’s publication of the notice and the permit application and its open implementation of the dewatering operation, its dewatering operation was discussed in numerous local newspaper articles reporting generally on Consolidation Coal’s mining activities, the opposition to them, and the resolutions against them adopted by public bodies. Specifically, articles discussing the dewa-tering operation were published in The Virginia Mountaineer in Buchanan County on November 17, 2005; December 8, 2005; December 15, 2005; January 19, 2006; June 1, 2006; and October 5, 2006, and in another newspaper, The Voice, on January 27, 2006.

While the plaintiffs concede that Consolidation Coal’s dewatering activities were knowable, they assert that they did not view the public notices and did not subscribe to the relevant newspapers. They suggest that their “states of mind are decisive” in determining when CERCLA’s commencement date for statutes of limitations were triggered. This argument, however, reflects a misunderstanding of the discovery rule set forth in § 9658. That provision makes clear that the clock begins to run not only when plaintiffs actually knew of the dewatering activities but also when plaintiffs reasonably should have known of them.

We conclude that the level of public notice and publicity that occurred with respect to Consolidation Coal’s dewatering activities should reasonably have informed the plaintiffs of those activities more than five years before the plaintiffs commenced their lawsuits. Thus, even under the discovery rule in § 9658, the plaintiffs’ claims would be barred by Virginia’s statutes of limitations.

IV

Finally, the plaintiffs argue that the statutes of limitations should be tolled under Virginia law because Consolidation Coal concealed its dewatering activities. They claim that the defendants “intended to secretly dispose of their contaminated wastewater into the' [plaintiffs’] underground mine void such that the Plaintiffs were deprived of any knowledge or means to know of the Defendants’ wrongdoings.”

To be sure, Virginia law provides for tolling in “extraordinary circumstances” such as when “fraud prevents a plaintiff from asserting its claims” or when the defendant takes an affirmative act that deprives the plaintiff of the ability to assert the cause of action in the appropriate time. Birchwood-Manassas Assocs., LLC v. Birchwood at Oak Knoll Farm, LLC, 290 Va. 5, 773 S.E.2d 162, 164 (2015); see also Va. Code Ann. § 8.01-229(D). But in light of the record in this case, the plaintiffs’ argument for invoking tolling on this basis borders on the frivolous. Consolidation Coal openly and publicly sought permission for its dewatering operations and published notice of its activities as required by law. It also openly constructed the dewatering pipeline over land and into Island Creek Coal’s mine. Such conduct is hardly consistent with an intent “to secretly dispose of their contaminated wastewa-ter” in order to deprive the plaintiffs of knowledge about their activities.

V

Apart from their challenge to the district court’s limitations rulings, the plaintiffs challenge the court’s denial of their request for injunctive relief. Because, however, the causes of action that provide the basis for any claimed relief are barred, the plaintiffs’ request for injunctive relief is also barred. Injunctive relief is a remedy, not a cause of action.

For the foregoing reasons, the judgments of the district court are

AFFIRMED.

       Under Virginia law, the plaintiffs have the benefit of the date they filed their actions in state court — 2011 and 2013 — since they dismissed those actions voluntarily and refiled their federal actions within six months of the voluntary dismissals. See Va. Code Ann. § 8.01 — 229(E)(3).


source: Caselaw Access Project

author: SHEDD, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Dominic Xavier MCDONALD, a/k/a Bombay, Defendant-Appellant. Federal Public Defender of South Carolina, Amicus Supporting Appellant.
    No. 15-4682
    United States Court of Appeals, Fourth Circuit.
    Argued: December 9, 2016
    Decided: March 9, 2017

      ARGUED: Denzil Horace Forrester, THE LAW OFFICES OF DENZIL H. FORRESTER, Charlotte, North Carolina, for Appellant. Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: Jill Westmore-land Rose, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. William F. Nettles, IV, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Florence, South Carolina, for Amicus Curiae.
    Before TRAXLER, SHEDD, and KEENAN, Circuit Judges.
   SHEDD, Circuit Judge:

Dominic Xavier McDonald pled guilty to four counts of possession of a firearm and ammunition by a convicted felon, 18 U.S.C. § 922(g)(1). He now appeals his 188-month sentence. Finding no reversible error, we affirm.

I.

Over the course of two weeks in October 2014, McDonald illegally sold six firearms, several of which he had stolen, to a cooperating defendant. First, McDonald sold a .22 caliber revolver, which was loaded with eight rounds of ammunition. Two days later, he sold a 9mm pistol containing ten rounds of ammunition. Next, McDonald and another individual sold two rifles they had stolen earlier that month, a .22 caliber Remington 541S and a Browning 30-60. Finally, McDonald sold a 9mm pistol and a .38 caliber revolver that he had stolen from the home of a Charlotte-Mecklenburg police officer. Referring to one of these firearms, McDonald told the buyer that he “got this b*tch from a police officer’s crib.!’ J.A. 104.

McDonald!s possession of the firearms was unlawful because he had previously been convicted of numerous felony offenses. Notably, while he was trafficking in these firearms, he was serving a term of supervised release arising out of an earlier federal conviction for possession of a firearm by a convicted felon. McDonald had been out of prison for less than a month when he sold these firearms. J.A. 63.

Based on the foregoing, a grand jury indicted McDonald on four counts of possession of a firearm and ammunition by a convicted felon, 18 U.S.C. § 922(g)(1). J.A. 11-12. McDonald pled guilty in the Western District of North Carolina without a written plea agreement. The probation office prepared McDonald’s presentence report, which recommended that he be sentenced under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), due to his prior violent felony convictions, namely two convictions of South Carolina second-degree burglary and one conviction of North Carolina robbery with a dangerous weapon. J.A. 107.

McDonald objected to his classification under the ACCA, arguing that second-degree burglary under South Carolina law should not be considered a “violent felony” for ACCA purposes because “some sort of [future] decision from the Fourth Circuit might impact this case.... ” J.A. 41. The district court discussed this issue with McDonald’s counsel in detail at a lengthy hearing, but ultimately determined that McDonald should be sentenced under the ACCA. J.A. 41-54. The district court reasoned that then-controlling Fourth Circuit law established that South Carolina second-degree burglary falls within the ACCA’s list of prior offenses. J.A. 45-55 (citing United States v. Wright, 594 F.3d 259, 266 (4th Cir. 2010)).

Having determined that the ACCA applied, the district court then turned to the § 3553(a) factors and found a 188-month sentence appropriate. 18 U.S.C. § 3553(a). In addition, the district court stated that even if the ACCA did not apply, it would still have given McDonald a 188-month sentence to reflect McDonald’s extensive criminal history, “the very serious nature of the underlying offenses” and “to deter criminal conduct and protect the public from further crimes of the defendant.” J.A. 69. The district court noted that shorter sentences had not deterred McDonald from committing the same crime numerous times. It also noted that the 188-month sentence took into consideration McDonald’s “difficult childhood, [his] mental state and ... the heartfelt sentiments of Mr. McDonald’s sister,” who spoke at his sentencing hearing. J.A. 69-70.

II.

On appeal, McDonald argues that the district court erroneously sentenced him under the ACCA. McDonald contends that his sentence should be vacated because the district court erred in applying the ACCA to him. As a general matter, in reviewing any sentence “whether inside, just outside, or significantly outside the Guidelines range,” we apply a “deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). We must first “ensure that the district court committed no significant procedural error.” Id. at 51, 128 S.Ct. 586. Then, “[i]f, and only if, we find the sentence procedurally reasonable can we consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal quotations omitted). “Federal sentencing law requires the district judge in every case to impose ‘a sentence sufficient, but not greater than necessary, to comply with’ the purposes of federal sentencing, in light of the Guidelines and other § 3553(a) factors.” Freeman v. United States, 564 U.S. 522, 131 S.Ct. 2685, 2692, 180 L.Ed.2d 519 (2011) (quoting 18 U.S.C. § 3553(a)).

However, Rule 52(a) of the Federal Rules of Criminal Procedure mandates 'that we must disregard harmless errors. Consistent with this rule, in United States v. Savillon-Matute, 636 F.3d 119 (4th Cir. 2011), we held that it is unnecessary to vacate a sentence based on an asserted guidelines calculation error if we can determine from the record that the asserted error is harmless. Since our decision in Savillon-Matute, we have applied this standard in multiple cases. See, e.g., United States v. Gomez-Jimenez, 750 F.3d 370, 382-386 (4th Cir. 2014); United States v. Hargrove, 701 F.3d 156, 162 (4th Cir. 2012); United States v. Shrader, 675 F.3d 300, 315 (4th Cir. 2012) (affirmed sentence despite concerns that district court erroneously applied ACCA).

To apply this “assumed error harmlessness inquiry” we require “(1) knowledge that the district court would have reached the same result even if it had decided the guidelines issue the other way and (2) a determination that the sentence would be reasonable even if the guidelines issue had been decided in the defendant’s favor.” Savillon-Matute, 636 F.3d at 123 (internal quotations omitted). In performing harmless-error review, an appellate court may assume that a sentencing error occurred and proceed to examine whether the error affected the sentence imposed. See Jones v. United States, 527 U.S. 373, 402, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999). Therefore we assume that McDonald does not qualify as a “violent felon” under the ACCA and evaluate whether, absent application of the ACCA, the district court would have reached the same result and whether the result is reasonable.

With regard to the first prong, the record makes clear that the district court would have given McDonald the same sentence absent application of the ACCA. The district court noted that, had it not applied the ACCA, it would have arrived at the same 188-month sentence because it would have given McDonald an above-Guidelines sentence through an upward variance in his criminal history category. The district court then recalculated McDonald’s alternate sentence without the ACCA. The district court stated that

the Court is firmly convinced, based upon this record, based upon the evidence before it, based upon the conduct of Mr. McDonald subsequent to his arrest on these charges, that a lengthy sentence is necessary to accomplish the 3553(a) factors ... Had the Court not made an Armed Career Criminal Act finding, the defendant’s range would have been based upon an offense level 29, criminal history category V, for 140 to 175 months. An alternative way of arriving at the conclusion the Court has at 188 months is sufficient but not greater than necessary, would be to vary or depart one criminal history category from V to VI and a range of 151-188 months. Had the Court not found that the Armed Career Criminal Act enhancement applied, the Court would have done just that. J.A. 70 (emphasis added).

The district court then elaborated: “[t]he Court would have varied one criminal history category under 4A1.3 of the guidelines, which instructs the Court to depart upward when the criminal history does not adequately reflect the seriousness of past criminal conduct” to “accomplish the purposes of sentencing set forth in 3553(a) ...” J.A. 70-71. Because absent the ACCA, each count would have a lower statutory maximum of 120 months, the court then explained in its Statement of Reasons that it would have “staek[ed] the counts of conviction, imposing a 120 month sentence on three of the counts to run concurrent and a 68 month consecutive sentence on the fourth count of conviction, for reasons stated at the Sentencing Hearing to support the Court’s conclusion....” J.A. 144.

While, “[o]f course, there is no requirement that a district court ‘specifically state that it would give the same sentence absent the [ACCA],’ ” United States v. Montes-Flores, 736 F.3d 357, 370 (4th Cir. 2013) (quoting Savillon-Matute, 636 F.3d at 124), the district court did exactly that in sentencing McDonald. In Shrader, we held that we “need not address the propriety of [an] ACCA enhancement, because an upward variance or departure in this case would produce exactly the same result and because the transcript makes clear that the sentence herein, irrespective of any ACCA enhancement, plainly effectuated the trial court’s sentencing intent.” 675 F.3d at 315. In this case, the district court was even more thorough because it expressly stated what upward departure or variance it would have used to achieve the same 188-month result. As in Shrader, the transcript makes eminently clear that the district court would have imposed an upward departure to produce the 188-month sentence necessary to effectuate its sentencing intent.

In fact, the district court’s alternate sentence is more thorough than other alternate sentences we have affirmed under the assumed harmless error review. In Gomez-Jimenez, for example, we affirmed an alternate sentence despite the lack of a separate explanation for an upward departure that would have been necessary in the alternate to reach the same sentence, because the district court’s sentencing intent was still clear from the record. 750 F.3d at 382-86. In this case, the district court actually gave a comprehensive explanation of the basis for the parallel result.

In Savillon-Matute, we explained the point of this harmless error inquiry was that “it would make no sense to set aside [a] reasonable sentence and send the case back to the district court since it has already told us that it would impose exactly the same sentence, a sentence we would be compelled to affirm.” 636 F.3d at 123 (internal quotations omitted). This is such a case, and we commend the district court for its thoroughness.

Turning to the second requirement, we must decide whether McDonald’s sentence is substantively reasonable. We conclude that it is. As in Savillon-Matute and Har-grove, the district court adequately explained its sentence as necessary under § 3553(a). Savillon-Matute, 636 F.3d at 122-24; Hargrove, 701 F.3d at 162. The district court explained in detail the reasons compelling a 188-month sentence, namely the need for deterrence, the “very serious nature” of McDonald’s offenses, and “importantly in this case, to protect the public.” J.A. 68-70. Because the district court made it clear that it would have given McDonald the same sentence if the ACCA did not apply, and that sentence is substantively reasonable, any alleged guidelines calculation error was harmless.

III.

For the foregoing reasons, we affirm McDonald’s sentence of 188 months imprisonment.

AFFIRMED.

      . Applying the ACCA changed McDonald's sentencing by imposing a mandatory minimum sentence of 15 years for any person who “violates section 922(g) ... and has three previous convictions ... for a violent felony or a serious drug offense, or both, committed on occasions different from one another ...” 18 U.S.C. § 924(e)(1).

      . Without the ACCA, McDonald's maximum sentence for each count is 120 months. The district court recognized this fact in fashioning the alternate sentence by imposing a concurrent 120-month sentence on counts one through three and a 68-month consecutive sentence on count four. J.A. 144 (Statement of Reasons).

      . Specifically, McDonald contends that (1) his prior convictions of South Carolina second-degree burglary are not "violent felonies” under the ACCA; (2) the burglaries were not committed on separate occasions as required by the ACCA; (3) the ACCA issue should not have been considered because it was brought to the district court’s attention through an untimely objection; and (4) the ACCA creates a classification that violates the guarantee of equal protection under the United States Constitution.

      . The government contends that McDonald has waived this argument by failing, without good reason, to raise it in his opening brief. See Suarez-Valenzuela v. Holder, 714 F.3d 241, 248-49 (4th Cir. 2013) ("contentions not raised in the argument section of the opening brief are abandoned” and not ordinarily subject to appellate review). Because we affirm McDonald’s sentence regardless, we do not address whether McDonald waived this argument. However, McDonald failed to make any arguments as to why his alternate sentence should not be affirmed. Oral Argument at 6:05, United States v. McDonald, (2016) (No. 15-4682), http://www.ca4.uscourts.gov/oral-argument/listen-to-oral-arguments.


author: THACKER, Circuit Judge:

text:
    VIRGINIA ELECTRIC AND POWER COMPANY, d/b/a Dominion Virginia Power, Plaintiff-Appellee, v. BRANSEN ENERGY, INC., f/k/a Bransen Energy, LLC, Defendant-Appellant.
    No. 16-1254
    United States Court of Appeals, Fourth Circuit.
    Argued: January 25, 2017
    Decided: March 9, 2017

      ARGUED: Sam Preston Burchett, SAM P. BURCHETT ATTORNEY AT LAW, Lexington, Kentucky, for Appellant. Benjamin L. Hatch, MCGUIREWOODS LLP, Norfolk, Virginia, for Appellee. ON BRIEF: E. Duncan Getchell, Jr., J. William Boland, Ryan D. Frei, Katherine Mims Crocker, MCGUIREWOODS LLP, Richmond, Virginia, for Appellee.
    Before GREGORY, Chief Judge, and THACKER and HARRIS, Circuit Judges.
   THACKER, Circuit Judge:

Seeking fuel for a newly constructed power plant, Virginia Electric and Power Company, doing business as Dominion Virginia Power (“Dominion”), contracted with Bransen Energy, Inc. (“Bransen”), and paid nearly $27 million for coal product which would satisfy rigid specifications and environmental regulations. However, the product Bransen delivered, consisting of coke breeze and waste coal, fell far short of these requirements. After Dominion filed suit in the United States District Court for the Eastern District of Virginia, the district court awarded Dominion partial summary judgment on claims related to Bransen’s delivery of coke breeze, and then held for Dominion after a bench trial on its claims related to the delivery of waste coal. In total, the district court awarded over $22 million in damages. Bransen filed this appeal, arguing that the district court erred by ruling in favor of Dominion as to both liability and damages. Finding no error, we affirm for the reasons that follow.

I.

A.

In June 2008, Dominion began constructing the Virginia City Hybrid Energy Center (the “Plant”) in Wise County, Virginia. The Plant is “a 600-megawatt, clean-coal powered electrical generation facility.” J.A. 3960. The commissioning process for a new power plant includes a “testing phase” to assure compliance with regulatory standards. In November 2011, Dominion began the testing phase.

Three years earlier, in 2008,, Dominion began soliciting suppliers of performance fuel, a high-quality coal product, for the testing phase. As an industry standard, power plants use performance fuel to test equipment and determine operating capacity because of the quality and consistency of the fuel, which is higher than the quality of fuel a plant uses post-commissioning. Dominion sought performance fuel that would be acceptable directly at the Plant without further processing and would comply with environmental permits acquired from the Virginia Department of Environmental Quality. Ultimately, Bransen contracted with Dominion to supply about half of the expected performance fuel necessary for testing, totaling 600,000 tons of coal product for nearly $27 million. The testing phase lasted around eight months, and the Plant was commissioned and began commercial operations as planned on July 10, 2012 (the “commercial operations date” or “COD”).

1.

Before the Plant’s commissioning, the parties entered three contracts relating to the testing phase: (1) the Master Coal Purchase and Sale Agreement (the “Master Agreement”); (2) the Confirmation for the Purchase of Performance Fuel (the “Pre-COD Confirmation”); and (3) the Coal Services Agreement (the “Services Agreement”). The parties entered into two additional agreements for the purchase of up to three million tons of “waste coal” for a term beginning on the commercial operations date (the “Post-COD Confirmations”). Dominion also entered a Land Lease Agreement (the “Lease”) with Coal Technology International, LLC (“CTI”), to lease property on which Dominion would store and blend coal purchased from Bran-sen before delivery to the Plant.

a.

The Master Agreement, dated November 8, 2010, governed all subsequent dealings between the parties. It required the parties to enter transactions regarding the sale and purchase of coal by way of written Confirmation — a separate contract between the parties pursuant to the Master Agreement. If such Confirmation is inconsistent with the Master Agreement, the Confirmation prevails over the Master Agreement unless the Master Agreement otherwise provides.

b.

The Pre-COD Confirmation, dated January 26, 2011, required Bransen to provide between 450,000 and 600,000 tons of “Run-of-Mine Coal,” of which Dominion was required to buy at least 450,000 tons with an option to purchase an additional 150,000 tons. In the Pre-COD Confirmation, Dominion clarified that it would only accept Run-of-Mine coal by placing an “X” over a line next to a paragraph defining Run-of-Mine coal. By contrast, two other products and their definitions — “Coal” and “Waste Coal” — appear, respectively, above and below the paragraph for Run-of-Mine coal. There was no “X” marked next to either of those product descriptions.

The Pre-COD Confirmation defines Run-of-Mine coal as conforming to specifications provided in another section of the Pre-COD Confirmation, and it required the coal to be “substantially consistent in quality throughout a Shipment,” and to have “no intermediate sizes (including fines) added or removed,” but it allowed “limited amounts of extraneous material.” J.A. 462. The specifications referenced in this definition, entitled “Performance Fuel Specifications,” establish rejection limits for criteria such as the Btu measurement, moisture rate, and sulfur and ash composition. Given “the different technology of the [Plant’s] boilers ... and stringent environmental limits,” the Pre-COD Confirmation also allowed Dominion to suspend deliveries if the coal “adversely affect[ed] operation” of the Plant within two years of the commercial operations date. Id. at 466.

c.

Dominion entered the Lease as well as the Services Agreement on the same date as the Pre-COD Confirmation. Though Bransen was not a party to the Lease, the opening recital of the Lease acknowledges the Pre- and Post-COD Confirmations along with the Services Agreement. Indeed, the Lease would terminate upon the termination of the Services Agreement or any Confirmation then in effect, either before or after commissioning. The Services Agreement assigned Bransen a host of duties related to the transportation, management, regulation, and testing of the coal held at the CTI property, including analyzing the coal to ensure compliance with the performance fuel specifications, which were identical to those in the Pre-COD Confirmation.

d.

The agreements limit relief available in the case of either party’s breach. The Master Agreement allows a nondefaulting party to terminate the Master Agreement and all other transactions between the parties “[u]pon the occurrence and during the continuance of an Event of Default.” J.A. 147. Events of Default include,

the failure of the Defaulting Party to comply with any material obligation under a Transaction covered by this Master Agreement (... except for Seller’s obligations to deliver Coal pursuant to the Specifications contained in a Confirmation, the exclusive remedy for which is provided in Sections 5.1, 5.2 and 5.3) and such failure continues uncured for three (3) Business Days after written notice thereof....

J.A. 145-46 (emphasis supplied). Section 5 thus provides three exclusive remedies for product delivered pursuant to a Confirmation that does not conform to the specifications in that Confirmation.

Section 5.1 allows for “quality adjustments” for nonconforming product, resulting in price modifications calculated pursuant to formulae provided in an exhibit to the Agreement. J.A. 140. Alternatively, Section 5.2 provides Dominion “Rejection Rights,” which allow either rejecting a shipment or “reaching a mutually acceptable price adjustment or other arrangement with” Bransen, if an independent third-party analyst determines that the shipment does not conform to specifications. Id. As yet further recourse, Section 5.3 provides “Suspension Rights” pursuant to which Dominion may “suspend the receipt of future shipments” after receiving multiple nonconforming shipments without rejecting them. Id. at 140-41. For breach of any provision for which the Master Agreement does not provide an express remedy, the Master Agreement limits recoverable damages “to direct actual damages,” excluding “consequential, incidental, punitive, exemplary or indirect damages, lost profits, or other business interruption damages.” Id. at 150-51 (capitalization removed).

2.

a.

From February through December 2011, Bransen billed Dominion for, and delivered to the CTI property, 599,920.34 tons of material. Bransen included in this amount, however, 43,000 tons of coke breeze, “a non-coal industrial byproduct” that was not an approved fuel source “and 'did not qualify as performance fuel.” J.A. 1827. And Dominion had not acquired environmental permits to use coke breeze as fuel. Coke is not coal. Rather, according to the American Society for Testing and Materials, it is “a carbonaceous solid produced from coal, petroleum, or other materials by thermal decomposition with passage through a plastic state.” Id. at 1717. Coke breeze consists of “the fine screenings from crushed coke or from coke as taken from [coke] ovens.” Id.

Bransen pursued coke breeze suppliers before executing the Pre-COD Confirmation and accepted coke breeze shipments after executing the Pre-COD Confirmation. The shipping notices and summaries Bransen provided Dominion regarding the Pre-COD Confirmation deliveries described the material delivered as “coal,” but Bransen included the total amount of coke breeze in its invoices without disclosing that fact to Dominion. J.A. 1111; see id. at 1257. Dominion provided full payment for these invoices, which totaled $26,724,750.17. A May 2011 email from Michael Peters, the President of Bransen Energies, indicates that he ceased buying coke breeze around that time because he was “a lil [sic] nervous about [Dominion] not approving.” Id. at 1260.

The impurities in Bransen’s deliveries were not limited to amounts of coke breeze. At trial, Peters conceded that aside from the coke breeze, the product he delivered was “garbage of bituminous” or “GOB” coal. J.A. 2577. Indeed, Peters stated that he referred to the type of coal delivered pursuant to the Pre-COD Confirmation “as GOB, it is garbage of bituminous.” Id. at 2574-75. And although Peters maintained that GOB coal is synonymous with Run-of-Mine coal, another one of Bransen’s former employees who had worked in the coal industry for over 40 years admitted that GOB is synonymous with “waste coal,” id. at 2667, and expert testimony established that Run-of-Mine coal is categorically distinct from GOB coal. Specifically, whereas Run-of-Mine coal is' “freshly-mined,” GOB coal is the “waste” or “refuse” remaining after removing clean coal from the product. Id. at 2678.

b.

In December 2011, Dominion received a letter from an anonymous tipster indicating that subpar product had been surreptitiously delivered to the CTI property. Dominion thus began investigating the allegation, leading to an interview with Peters. A summary of the interview, which Peters signed and verified as “true and correct to the best of [his] knowledge,” states that the CTI property had “a very unsuitable, wet surface,” which Peters claimed required a base layer before using it for coal storage. J.A. 1256, 1258. Peters claimed that he therefore purchased 43,-000 tons of coke breeze on which he stored around sixty percent of the stockpile. He admitted, however, that Dominion had no knowledge of the coke breeze and he “accepted] full responsibility for having improperly charged [Dominion] for the coke breeze.” Id. at 1257.

As a result, in January 2012, Dominion hired an independent laboratory, SGS North America (“SGS”), to analyze the product and determine whether it was suitable performance fuel despite its impurities. The SGS reports showed that the moisture content and Btu value of the delivered product exceeded contractual rejection limits. Additionally, in April 2012, Bransen assembled three samples of product which Bransen represented to be free of coke breeze, but further testing revealed that the samples also contained trace amounts of coke breeze and produced size, moisture, and Btu measurements exceeding rejection limits.

B.

1.

In light of the discovery of this subpar product, Dominion deemed the shipments unacceptable and did not deliver them to the Plant for Pre-COD use. In early 2012, when the parties’ relationship began to deteriorate due to disputes over how to deal with Bransen’s product, Bransen attempted to resolve the issue by proposing to replace the entire amount of coke breeze, buy back the product for which Dominion paid, or replace the product with material from a pre-approved source. Dominion' rejected these proposals, however, because they depended on further contingencies, potentially delayed commissioning beyond the projected commercial operations date, and required continuing relations with Bransen, whom Dominion no longer trusted.

During the first half of 2012, with the commercial operations date approaching, Dominion sought and obtained performance fuel from alternative sources. In the spring of 2012, still seeking to use coke breeze as fuel in order to salvage some value out of the product Bransen delivered, Dominion contacted the Virginia Department of Environmental Quality. The Department of Environmental Quality determined, however, that Dominion could not use coke breeze as fuel without modifying its existing permits. Dominion thereafter applied for and obtained modifications to its air permits and waste permits in October 2012 and November 2012, respectively. The air permits required $14,000 in application fees.

Endeavoring further to recover some utility out of Bransen’s product, Dominion also pursued methods of cleaning the product and blending it with higher quality material in an effort to render it suitable for post-commissioning use. Dominion engaged Harold Keen Service Co., LLC, to manage this process on the CTI property. But this proved problematic. The stockpile would not be depleted for eight to ten years, while the CTI lease was for a much shorter period and did not guarantee extension. Dominion therefore sought to clean and blend the product in nearby preparation plants with a target completion date of December 31, 2015.

2.

On June 22, 2013, Dominion’s counsel sent Bransen’s counsel a letter ordering Bransen to cease and desist accessing or delivering coal material on the CTI property. Dominion claimed it could not affirmatively terminate the contracts between the parties earlier than 2013 because early termination of the Master Agreement or any Confirmation would also terminate the Lease pursuant to its own terms, meaning Dominion could thereby abandon any product for which Dominion paid and stored on the property. To avoid this potential loss, on June 24, 2013, Dominion and CTI entered into two amended leases at increased rental prices for subsequent terms ending on June 30, 2015.

A year later, in June 2014, Bransen sent Dominion a letter demanding that Dominion allow Bransen’s performance pursuant to the Post-COD Confirmations. Specifically, Bransen interpreted the Post-COD Confirmations as requiring Dominion to order coal product from Bransen after commissioning; Bransen therefore demanded that Dominion continue to order and accept deliveries from Dominion. The following month, Dominion’s counsel provided formal notice of Bransen’s alleged breach of the Master Agreement, Pre-COD Confirmation, Post-COD Confirmations, and Services Agreement. The alleged breaches revolved around Bransen’s delivery and concealment of, and billing Dominion for, quantities of coke breeze that contaminated the stockpile. When cure periods for those contracts expired without response from Bransen, Dominion notified Bransen that it was terminating the contracts between the parties.

C.

On September 10, 2014, Dominion filed the operative complaint, alleging Bransen breached the contracts it entered with Dominion, and seeking over $15 million in damages. Bransen answered and counterclaimed, asserting an affirmative defense of waiver for Dominion’s alleged failure to utilize the remedies specified in the contracts, and counterclaims for breach of contract and breach of the covenant of good faith and fair dealing. The case progressed in two phases: the first considered cross-motions for partial summary judgment for the amount of product consisting of coke breeze; the second, which proceeded to trial, considered the remaining amount of product consisting of GOB coal.

1.

Dominion moved for partial summary judgment on its contract claim for Bran-sen’s delivery of coke breeze and against Bransen’s counterclaims. Bransen also moved for partial summary judgment, arguing that it provided adequate assurance of performance by offering to replace the coke breeze shipments, and that Dominion accepted the deliveries, failed to timely reject or revoke its acceptance pursuant to the Virginia analog of the Uniform Commercial Code (“UCC”), and breached the PosMÜOD Confirmations by refusing to order three million tons of waste coal.

The district court granted Dominion’s motion, holding, “coke breeze is not Run-of-Mine coal and therefore could not have met the specifications in the Pre-COD Confirmation.” J.A. 2319. The district court also rejected Bransen’s counterclaims, holding that the first-material breach doctrine barred those claims and that the contracts between the parties departed from UCC acceptance and rejection provisions, thereby validating Dominion’s post-testing rejection. The court further held that Bransen’s proposed resolutions “were not commercially reasonable,” and that Dominion complied with applicable termination procedures while Bransen “made no attempt to cure during the time it was contractually allotted” though Bran-sen’s ability to cure may have been questionable. Id. at 2322-23. The court thus awarded Dominion $1,957,325 in “direct damages” flowing from the delivery of coke breeze, consisting of the amount Bransen charged Dominion for the coke breeze plus the environmental application fees associated with using coke breeze as' fuel.

2.

The parties proceeded to a bench trial on Dominion’s remaining contract claim, alleging that the remaining coal that did not contain coke breeze nevertheless failed to satisfy contractual standards. The district court held Bransen liable on this claim, crediting expert testimony that the GOB coal Bransen delivered to Dominion was waste coal and thus not the Run-of-Mine coal for which Dominion contracted. Stemming from this breach, the court reasoned Dominion was entitled to damages for expenses incurred in processing, improving, and storing the GOB coal, and for purchasing replacement coal from other suppliers. Relying on Dominion’s expert report, the court calculated total damages of $22,894,013, and awarded these damages to Dominion less the previous award of $1,957,325, amounting to an award of $20,936,688 for the noncompliant coal.

II.

Summary judgment is subject to de novo review and appropriate if “no material facts are disputed and the moving party is entitled to judgment as a matter of law.” Dreamstreet Invs., Inc. v. Mid-Country Bank, 842 F.3d 825, 829 (4th Cir. 2016). Judgment after a bench trial is subject to a mixed standard of review, pursuant to which we review legal conclusions de novo and factual findings for clear error. Raleigh Wake Citizens Ass’n v. Wake Cty. Bd. of Elections, 827 F.3d 333, 340 (4th Cir. 2016). An error is clear if we have a “definite and firm conviction” that the district court was mistaken. Andrews v. Am.'s Living Ctrs., LLC, 827 F.3d 306, 312 (4th Cir. 2016) (quoting Mallory v. Booth Refrigeration Supply Co., 882 F.2d 908, 909 (4th Cir. 1989)).

III.

The contracts provide, and the parties do not dispute, that Virginia law governs this ease. In Virginia, if parties have entered into multiple documents relating to a business transaction, a court must construe the documents “together to determine the parties’ intent.” First Am. Bank of Va. v. J.S.C. Concrete Const., Inc., 259 Va. 60, 523 S.E.2d 496, 500 (2000) (quoting Doswell Ltd. P’ship v. Va. Elec. and Power Co., 251 Va. 215, 468 S.E.2d 84, 88 (1996)). “In ascertaining the parties’ intent, we consider the plain meaning of the language the parties used in the documents.” Musselman v. Glass Works, L.L.C., 260 Va. 342, 533 S.E.2d 919, 921 (2000). “Consequently, if such contractual language is unambiguous,” a court “does not apply rules of construction or interpretation” but “simply give[s] the language its plain meaning.” Seoane v. Drug Empori um, Inc., 249 Va. 469, 457 S.E.2d 93, 96 (1995).

A.

“[T]he elements of a breach of contract action are (1) a legally enforceable obligation of a defendant to a plaintiff; (2) the defendant’s violation or breach of that obligation; and (3) injury or damage to the plaintiff caused by the breach of obligation.” Navar, Inc. v. Fed. Bus. Council, 291 Va. 338, 784 S.E.2d 296, 299 (2016) (alteration in original) (quoting Ulloa v. QSP, Inc., 271 Va. 72, 624 S.E.2d 43, 48 (2006)). Bransen does not contest the enforceability of the agreements between the parties; the following section therefore addresses the latter two elements.

1.

“[A] party who commits the first breach of contract,” if material, “is not entitled to enforce the contract” and thereby excuses the nonbreaching party from performance. Horton v. Horton, 254 Va. 111, 487 S.E.2d 200, 203-04 (1997). “A material breach is a failure to do something that is so fundamental to the contract that the failure to perform that obligation defeats an essential purpose of the contract.” Id. at 204.

As an initial matter, Bransen argues Dominion was the first breaching party by deciding as early as 2011 to cease doing business with Bransen and accordingly refusing to purchase coal from Bran-sen “through 2017 pursuant to the two Post-COD Confirmations.” Appellant’s Br. 43. Even if Dominion decided against further business with Bransen at that time, however, that decision would not violate the Post-COD Confirmations. Those Confirmations only obligate Bransen “to deliver 1,500,000 Tons of Product over the Term” of the contract depending on Dominion’s “weekly order” amounts. J.A. 998, 1011. This provision therefore granted Dominion an option — not a requirement — to purchase coal from Bransen after commissioning.

The “essential purpose” of the agreements between the parties, Horton, 487 S.E.2d at 204, was to provide Dominion with coal that would be acceptable performance fuel to test the Plant’s operating capacity and comply with environmental regulations. Therefore, as the court held, Bransen’s delivery of coke breeze and sub-par coal was the first material breach of the Master Agreement, Pre-COD Confirmations, and Services Agreement. Bransen defeated the essential purpose of the agreements by delivering a mixture of coke breeze and GOB coal, neither of which were Run-of-Mine coal nor, as testing established, satisfied contractual quality standards.

Moreover, the hoops through which Dominion has had to jump to bring about any utility to Dominion’s product underscore the materiality of Bransen’s breach. Indeed, Bransen’s subpar product required extensive testing, which proved time consuming and costly. And the consequent findings required Dominion to obtain modifications to its environmental permits at no small cost, along with locating alternative suppliers and hiring coal processors to salvage Bransen’s product.

a.

Bransen argues that because the coke breeze made up only around seven percent of its total shipment, its delivery of coke breeze was not a material breach. But this argument rests on an essential misunderstanding of the procedural history and the characteristics of the coal separated from the coke breeze. The district court did not render judgment on a claim involving Dominion’s aggregate shipment; instead, the district court held at summary judgment that the delivery of approximately 43,000 tons of coke breeze violated the contract because, put simply, “coke breeze is not Run-of-Mine Coal.” J.A. 2319.

In an apparent attempt to create a triable issue of fact contrary to the district court’s summary judgment ruling, Bransen points to deposition testimony of one of Dominion’s employees, Edward Roarty, who concedes that the coke breeze met the specifications for sulfur and moisture. See Appellant’s Rr. 23 (citing J.A. 312-13). But in the same breath, Bransen acknowledges that Roarty also recognized that the coke breeze “was above the reject limit on BTU.” J.A. 312. Moreover, even if the coke breeze satisfied sulfur and moisture requirements, it would not refute the simple fact that coke breeze is not coal.

b.

In any event, the district court’s verdict against Bransen involved a separate issue: whether the remaining coal product, separate from the coke breeze, satisfied the contract specifications. The district court based its finding that GOB coal is not Run-of-Mine coal by crediting expert testimony to that effect. Specifically, the testimony demonstrated that GOB coal is “waste coal” or “refuse,” which “is not [R]un-of-[M]ine coal.” J.A. 2681. Given that Bransen’s only contrary evidence was nonexpert testimony of Bransen’s current or former employees, we cannot say that this finding was clearly erroneous. See Raleigh Wake Citizens Ass’n, 827 F.3d at 340; cf. United States v. Wooden, 693 F.3d 440, 452 (4th Cir. 2012) (overturning factual finding in face of conflicting expert testimony but cautioning courts reviewing for clear error to be reluctant to do so). And even aside from the categorical distinction between GOB and Run-of-Mine coal, those amounts of coal purportedly separated from the coke breeze still contained trace amounts of coke breeze and failed to satisfy the specifications to which the parties agreed.

Bransen also argues that because Dominion processed the coal product in order to use it after commissioning, Dominion cannot claim a material breach of the contracts between the parties. But this argument conflates the materiality of Bransen’s breach with Dominion’s response to Bran-sen’s breach. More importantly, the central purpose of the contract was to provide Dominion with fuel for use before commissioning the Plant, not after, so any use of the product after commissioning only underscores the materiality of Bransen’s breach.

2.

On the element of damages, Bransen’s sole argument is that Dominion’s damages expert failed to establish any damages stemming from Bransen’s breach of the Services Agreement. This argument is con-clusory at best and misleading at worst. Bransen fails to explain how its failure to ensure compliance with performance fuel specifications, identical to those in the Pre-COD Confirmation and required pursuant to the Services Agreement, did not produce Dominion’s damages. And Bran-sen omits that when asked about damages stemming from the Services Agreement, Dominion’s damages expert declined to opine on whether his damages calculation stemmed from a breach of the Services Agreement but recognized the Services Agreement as relevant to his analysis because it required processing that effected costs associated with storing and testing the coal product.

Thus, Bransen is liable for delivering product consisting of coke breeze and GOB coal, neither of which satisfied the contracts between the parties. The following section therefore assesses the remedies available for this breach and, in turn, the propriety of the district court’s damages award.

B.

A contractual remedy is “exclusive of other possible remedies only where the language employed in the contract clearly shows an intent that the remedy be exclusive.” Bender-Miller Co. v. Thomwood Farms, Inc., 211 Va. 585, 179 S.E.2d 636, 638 (1971). Here, the Master Agreement provides, “the exclusive remedy” for “Seller’s obligations to deliver Coal pursuant to the Specifications contained in a Confirmation” are quality adjustment, rejection, and suspension rights pursuant to Section 5 of the Master Agreement. J.A. 145-46 (emphasis supplied). Indeed, Bransen conceded as much at oral argument by arguing that Section 5 provides the “exclusive remedy” for Dominion’s coke-breeze claim because coke breeze “met all the specifications.” Oral Argument at 5:45-7:27, Va. Elec. and Power Co. v. Bransen Energy, Inc., No. 16-1254 (4th Cir. Jan. 25, 2017). Section 5 does not limit the remedies available to Dominion, however, which does not base its claims only on Bransen’s failure to conform to Confirmation specifications but, instead, Bransen’s failure to deliver the product for which Dominion contracted and paid.

Indeed, the Pre-COD Confirmation contains a section titled, “Product,” which defines “Coal,” “Run-of-Mine Coal,” and “Waste Coal,” and yet another section reserved for “Performance Fuel Specifications,” which proyides rejection limits for Btu, moisture, sulfur and ash measurements, and stipulates that if any shipment triggers any of those rejection limits, “the provisions of Article 5.2 shall apply.” J.A. 462-65. Thus, considering the plain meaning of these provisions, we cannot extend “specifications” to include “products.” See Musselman, 533 S.E.2d at 921-22 (“We will not, by construction, insert a term in a contract that the parties to the contract omitted.”). Indeed, at oral argument, Bran-sen’s counsel so much as conceded this interpretation: when asked which provision would apply to remedies assuming Bran-sen was liable for breach, counsel stated, “We both disclaim lost profits ... as well as consequential or incidental damages,” invoking the limitations in Section 8.8 rather than Section 5. Oral Argument at 14:40, Va. Elec. and Power Co. v. Bransen Energy, Inc., No. 16-1254 (4th Cir. Jan. 25, 2017).

Section 8.8, which limits damages to “direct actual damages” where the Master Agreement does not provide an express remedy, J.A. 151 (capitalization removed), is therefore the only restriction on Dominion’s available remedies. “Direct damages are.those which flow naturally or ordinarily from the contract breach.” Long v. Abbruzzetti, 254 Va. 122, 487 S.E.2d 217, 219 (1997). “The measure of direct damages is the cost to complete the contract according to its terms, or ... the cost of repair to meet the contract terms.” Trans-Dulles Ctr., Inc. v. USX Corp., 976 F.2d 219, 226 (4th Cir. 1992) (citing Lochaven Co. v. Master Pools by Schertle, Inc., 233 Va. 537, 357 S.E.2d 534, 538 (1987)). Thus, the purpose of direct “damages for breach of contract is to place the injured party in the position he would have occupied had' the defendant performed.” Id. (citing Barr v. MacGlothlin, 176 Va. 474, 11 S.E.2d 617, 621 (1940)).

Based on Dominion’s expert report on damages, Bransen argues the district court awarded damages, including indirect damages, in violation of Section 8.8. Further, Bransen challenges the calculation of the damages award, arguing it includes damages for a claim Dominion did not pursue at trial. These arguments fail.

First, Bransen asserts, without citing to the record, that the district court awarded “lost profits of $9,959,447 in the form of depreciation in value of the Coal Stockpile.” Appellant’s Br. 48. Aside from lacking a basis in the record, this coneluso-ry argument suffers from another fundamental flaw: any damages awarded for the depreciated value of the product Bransen delivered would not amount to lost profits because Dominion did not intend to resell it, nor did this diminution in value estimate the Plant’s decreased success as a result of Bransen’s breach. Cf. Preferred Sys. Sols., Inc. v. GP Consulting, LLC, 284 Va. 382, 732 S.E.2d 676, 685-86 (2012) (upholding lost-profits award based on recorded profits of comparable companies); Banks v. Mario Indus. of Va., Inc., 274 Va. 438, 650 S.E.2d 687, 696 (2007) (requiring plaintiff seeking lost profits to prove “diminution in value of the business by reason of the wrongful act, measured by the loss of the usual profits from the business” (citation omitted)). Instead, these would simply amount to damages flowing directly from Bransen’s breach for the cost of putting Dominion in the position it would have been had Bransen performed. See TransDulles Ctr., Inc., 976 F.2d at 226.

Second, Bransen argues that processing costs Dominion expended to render the coal product suitable for use at the Plant were not predictable and thus not recoverable as direct damages. In much the same vein, Bransen argues that costs associated with storing the product during reprocessing are incidental damages. But these .expenditures were part of the cost of repairing Bransen’s subpar product and were, thus, recoverable as direct damages. See TransDulles Ctr., Inc., 976 F.2d at 226.

Third, Bransen challenges the.district court’s damages calculation, pointing to the original calculation’s partial reliance on Dominion’s theory that 41,094 tons of coal worth $1,830,613 were missing from Bransen’s shipments. Bransen therefore seeks a reduction of damages by $1,803,613. Dominion abandoned this theory before trial, however, and the district court “f[ound] that the 41,000 tons of lost coal is not an element of damages in this case.” J.A. 2564; see id. at 2480.

The trial testimony of Dominion’s damages expert undermines Bransen’s position. The expert explained that because Dominion abandoned the missing-coal theory, he adjusted his damages report to include the alleged missing coal in the amount of material requiring processing before Dominion could use it as fuel. Thus, compared to the original figure, the revised damages amount was decreased by the value of the alleged missing coal, while the estimated processing cost for the coal was increased to include the previously missing coal in the total amount of material requiring processing. Consequently, the total amount of damages dropped by approximately $91,000.

Although the revised damages report does not appear in the record, the district court’s ultimate award reflects the revised amount of damages. The expert’s direct examination indicates that Dominion’s counsel provided Bransen’s counsel with the revised report via e-mail as well as an opportunity to depose the expert regarding the revision, which Bransen’s counsel scheduled but cancelled. The original damages report indicated total damages of $22,985,405, consisting of Dominion’s savings by acquiring replacement coal, its loss on coal purchased from Bransen (including losses from the alleged missing coal and the costs of Dominion’s remedial efforts), the increased lease costs on the CTI property, and other miscellaneous damages. After trial, the district court found the total cost associated with Bransen’s breach was $22,894,013, an amount $91,392 less than the damages claimed in the original damages report and thus reflecting the net difference after accounting for the no-longer missing coal just as the damages expert testified. The consistency between the expert’s testimony and the revised amount of damages therefore does not produce a “definite and firm conviction” that the district court did not account for the abandoned missing-coal theory in its damages calculation and thus does not amount to clear error. Andrews v. Am.'s Living Ctrs., LLC, 827 F.3d 306, 312 (4th Cir. 2016) (quoting Mallory v. Booth Refrigeration Supply Co., 882 F.2d 908, 909 (4th Cir. 1989)); see Simms v. United States, 839 F.3d 364, 386 (4th Cir. 2016) (“We review factual findings relating to the calculation of damages for clear error.” (citation omitted)).

IV.

For the foregoing reasons, we affirm the district court’s rulings at summary judgment as well as after trial.

AFFIRMED.

      . Citations to the "J.A.” refer to the Joint Appendix filed by the parties in this appeal.

      . As discussed more fully below, the Pre-COD Confirmation required Bransen to deliver Run-of-Mine coal for Dominion's use as performance fuel during the testing phase.

      . Unlike the Pre-COD Confirmations, the Post-COD Confirmations did not include minimum purchase amounts. Compare J.A. 463 (requiring Bransen to “deliver between 450,-000-600,000 Tons of Product” and Dominion "to purchase a minimum of 450,000 Tons of Product”), with id. at 998 (requiring Bransen "to deliver 1,500,000 Tons of Product” and Dominion to “submit a weekly order”) and id. at 1011 (same).

      . A "British thermal unit” measures "[t]he quantity of heat required to raise the temperature of one pound of water by one degree Fahrenheit.” Webster's II New Riverside University Dictionary (1988).

      . Bransen charged Dominion for. a slightly lower amount' of material than it actually delivered, which totaled 601,359.54 tons.

      . The moisture rejection limit in the Services Agreement and Pre-COD Confirmation was 9.0%; the SGS analysis measured as-received moisture at 11.56% and 11.51%. The upward Btu rejection limit in both contracts was 8200; the SGS analysis measured as-received Btu at 8453 and 8121, and dry-product Btu as 9557 and 9178.

      . The SGS reports revealed as-received moisture measurements of 11.93%, 10.61%, and 9.58%. As-received Btu measurements were 8279, 8269, and 8188; dry-product Btu measurements were 9400, 9251, and 9055. The Services Agreement required size measurements to be “less than 10.0% below 100 mesh,” J.A. 829, and the Pre-COD Confirmation allowed rejection if sizing was over 10% “passing 100 mesh,” id. at 465. Measurements for two of the piles revealed 31.2% and 25.5% passing 100 mesh.

      . The expert testimony distinguished GOB coal from Run-of-Mine coal, providing, "Run-of-[M]ine coal is the freshly-mined coal,” and after "separating] the good coal out of it,” the remaining product is GOB coal. J.A. 2678. Thus, the expert opined, "GOB coal would be in that category of waste coal,” or “refuse,” but it "is not [R]un-of-[M]ine coal.” Id. at 2681.

      . Indeed, Bransen's opening brief indicates its misunderstanding of the procedural posture by referring to the bench trial as a "damages hearing” and failing to acknowledge the court’s liability finding. See, e.g., Appellant’s Br. 46 ("The lower Court, after a two-day hearing on [Dominion's] damages arising from the Opinion and Order One ruling that Bransen had materially breached the Master Agreement, the Pre-COD Confirmation and the [Services Agreement], ... awarded in excess of $22 million in damages....”).

      . These provisions read as follows:
      Coal: means any and all of the Coal to be sold by Seller and purchased by Buyer, the quality of which conforms to the Specifications and which does not trigger Buyer’s rejection rights under Section 5.2, or is otherwise accepted by Buyer under this Master Agreement or any Transaction, and which contains no synthetic fuels, is substantially free from any extraneous materials (including, but not limited to mining debris, bone, slate, iron, steel, petroleum coke, earth, rock, pyrite, wood or blasting wire), is substantially consistent in quality throughout a Shipment, meets the size required, and has had no intermediate sizes (including fines) added or removed.
      Run-of-Mine Coal: Defined as any and all of the coal to be sold by Seller and purchased by buyer, the quality of which conforms to the Specifications set forth herein and which does not trigger Buyer’s rejection rights and which may contain limited amounts of extraneous material, is substantially consistent in quality throughout a Shipment, and has had no intermediate sizes (including fines) added or removed. For clarification, any coal product that does not meet the definition of Coal or Waste Coal shall be deemed Run-of-Mine Coal. Waste Coal: Defined as any and all of the coal waste material to be sold by Seller and purchased by Buyer, the quality of which conforms to the Specifications set forth herein and which does not trigger Buyer’s rejection rights and which may contain significant amounts of extraneous material, is substantially consistent in quality throughout a Shipment, has had no intermediate sizes (including fines) added or removed, and complies with the two stipulations below. Prior to the first delivery of Waste Coal from a Source, Seller must: 1) provide Buyer with a fully executed State approved reclamation plan for that source [for example, in Virginia the document would be the Virginia Department of Mines, Minerals, and Energy ("DMME”) reclamation plan agreement], and 2) sign the Waste Coal Certification contained below.
      J.A. 462-63.

      . Compare J.A. 150-51 (limiting remedies for breach of any provision for which Master Agreement does not provide express remedy or measure of damages to "direct actual damages” (capitalization removed)), with id. at 145-46 (providing that "exclusive remedy” for Bransen’s failure "to deliver Coal pursuant to the Specifications contained in a Confirmation” are "provided in Sections 5.1, 5.2, and 5.3”) and id. at 140-41 (detailing Sections "5.1 Quality Adjustments,” "5.2 Buyer's Rejection Rights,” and "5.3 Suspension Rights,” none of which allow damages).

      . The other damages include increased costs of maintenance and environmental permits.