Opposition Brief — Quivira Mining Co. v. United States Environmental Protection Agency

QUESTION PRESENTED

Whether sparsely watered arroyos, which provide subsur-

face and intermittent surface flows to a tributary of the Rio

Grande, are “waters of the United States” within the mean-

ing of Section 502(7) of the Clean Water Act, so that pollu-

tant discharges into the arroyos are subject to regulation

under the Act.

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Avoyelles Sportsmen’s League, Inc. v.

NE vn awesncecscccsccaseess 9

Deltona Corp. v. United States,

657 F.2d 1184, cert. denied, 455 U.S.

eka ech eee h CORED SEEN Goce ceccees 10

EPA v. California ex rel. State Water

Resources Control Board, 426

Te a ee ee 4

Exxon Corp. v. Train, 554 F.2d 1310 ......... 11

Hodel v. Virginia Surface Mining &

Reclamation Ass'n, 452 U.S. 264 .......... 9, 10

United States v. Ashland Oil &

Transportation Co., 504 F.2d

DP MCRULCCEEGEGES Cee dbeddceicdsacecs 9, 10-11

United States v. Byrd, 609 F.2d 1204 ........ 9, 10

United States v. Earth Sciences, Inc.,

ERE SE TY PEE ET Ee Tee EEE 10

United States v. GAF Corp.,

EE ra 11

IV

Cases—Continued:

United States v. Holland,

cp Err ery Ter ee rere reer re 10

United States v. Huebner, 752 F.2d

1235, cert. denied, No. 84-1613 (Oct. 7,

PEE ato wdaerscee st sdedndewns es tetas cas 9

United States v. Oxford Royal Mushroom

Praamecte, 67 ©. BOM. BAe nec ic cccncccuens 8

United States v. Phelps Dodge Corp.,

Fa, eee 8,9, 10, 11

United States v. Riverside Bayview

Homes, Inc., 729 F.2d 391, rev'd,

De, WE EE SUED bad ch adn ctdcdaecess 7

United States v. Texas Pipe Line Co.,

Be ee eas KU AS ANGER KFA Teed ewes es 9

United States v. Tull, 769 F.2d 182 .......... 8,9

Utah v. Marsh, 740 F.2d 799... ccc cccccesss 10

Wicd OV. Pee, S17 US. TEE. wesc cccecss 10

Statutes and regulation:

Administrative Procedure Act,

Re me re rere 6

Clean Water Act, 33 U.S.C. 1251 et seq. :

Pe TR Ga Be errr 4

PA Be Ua ASD ca cb aces aaas 4,8

a ee si 5 is 4

© STACK), 33 U.S.C. TSTCME) 2. ccc ccccas 8

Page

Statutes and regulation—Continued:

OG, Ae Ss SI nh a enc te kc aw ib aks 6

$ 402(a), 33 U.S.C. 1342(a) ............ 3, 4,8

FTA Ee Us BOMEED wh ck vcs ecaasns 4,8

Oa Oo Mies BREAD 8.5 oso anvn saucy 4

$ 509(b)(1), 33 U.S.C. 1369(b)\(1) ........... 6

Comprehensive Environmental Response,

Compensation, and Liability Act of

oS is Sat reer ere re 2

tC a Po a TN ica vkkeehs beacheare 2

Miscellaneous:

S. Rep. 92-414, 92d Cong., Ist Sess.

fo PR rr ree Cry re re Er i]

S. Conf. Rep. 92-1236, 92d Cong., 2d Sess.

(TGEED 0d ssdn ines Kcbxedae eee eee 4

Inu the Supreme Court of the Hnited States

OCTOBER TERM, 1985

No. 85-408

QUIVIRA MINING COMPANY, ET AL., PETITIONERS

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE TENTH CiRCU!T

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-7a) is

reported at 765 F.2d 126. The orders issued on behalf of the

Administrator of the Environmental Protection Agency

(Pet. App. 17a-20a, 30a-33a) are unreported, as are the

earlier initial decisions (Pet. App. 8a-16a, 21a-29a) of the

Regional Administrator of the Environmental Protection

Agency’s Region VI.

JURISDICTION

The judgment of the court of appeals was entered on June

10, 1985. The petition for a writ of certiorari was filed on

September 9, 1985. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

(1)

2

STATEMENT

1. a. Petitioners Quivira Mining Company and Home-

stake Mining Company of California mine and mill ura-

nium near Grants, New Mexico.!' In their operations, they

pump groundwater out of their mineshafts, use it either in

their milling process or for recirculation back into their

mines to leach out additional uranium, and eventually dis-——

pose of it on the surface (Pet. 2; Pet. App. 8a, 21a).? They

discharge some of their mineshaft water into Arroyo del

Puerto and San Mateo Creek, the channels of which join

one another downstream from petitioners’ discharge points

and continue farther downstream as San Mateo Creek (id.

at 8a-9a, 22a).

Like many watercourses in the southwest, Arroyo del

Puerto and San Mateo Creek are arroyos—gullies created

by past water erosion. Although their channels conduct

“surface [water] flow only in response to episodic pre-

cipitation” (Pet. App. 9a, 22a), petitioners’ discharges,

“comingled with the discharges of other uranium mining

facilities [into the two arroyos], result[] in surface flow in

San Mateo Creek to a point approximately 1.3 miles below

its junction with Arroyo del Puerto, even in the absence of

precipitation” (id. at 9a, 23a). On “relatively rare occasions,

'Kerr McGee Nuclear Corporation and '/nited Nuclear Homestake

Partners, the predecessors in interest 1.0 Quivira and Homestake,

respectively, were the origina! parties during the proceedings conducted

by the Environmental Protection Agency (Pet. App. 17a, 30a). How-

ever, they were replaced by petitioners in the court of appeals (id. at 2a).

For simplicity, a reference in this brief to either petitioner also signifies

whichever predecessor in interest acted in its stead at any previous time.

?Homestake’s uranium mill site has been listed by EPA as one of the

top-priority sites in the nation containing hazardous substances, due to

contamination of groundwater by uranium. 40 C.F.R. Pt. 300, App. B,

Group 9, at 739. This listing was made pursuant to Section 105 of the

Comprehensive Environmental Response, Compensation, and Liabil-

ity Act of 1980, 42 U.S.C. 9605.

3

precipitation contributes enough water to the surface flow

in San Mateo Creek” to enable the flow to reach Rio San

Jose, which feeds Rio Puerto, a tributary of the navigable

Rio Grande (id. at 10a, 23a-24a; Pet. 4). In addition, water

“infiltrating the bed of San Mateo Creek is not ‘lost’ to the

Rio San Jose” (Pet. App. 14a). Instead, at least some of that

water “migrates through the shallow alluvium underlying

San Mateo Creek to Horace Springs, where it reemerges

and flows into the Rio San Jose” (ibid.).*

b. From its mine and mill at Ambrosia Lake, Quivira

discharges 15% of its mineshaft water in Arroyo del Puerto

at a point three miles upstream from the arroyo’s junction

with San Mateo Creek and stores the remaining water in its

tailings ponds (Pet. App. 8a-9a). Upstream from Quivira’s

discharge point by half a mile, approximately 936,000 gal-

lons of mineshaft water, containing radium 226, uranium,

selenium, and molybdenum, are discharged each day by

Homestake into Arroyo del Puerto (id. at 21a-22a). Addi-

tionally, Quivira discharges mineshaft water from its Lee

Mine into San Mateo Creek at a point upstream from the

creek’s confluence with Arroyo del Puerto (Pet. 6 n.6; Pet.

App. 2a).

c. Originally, petitioners sought National Pollutant Dis-

charge Elimination System (NPDES) permits from EPA.

NPDES permits, authorized by Section 402(a) of the Clean

Water Act, 33 U.S.C. 1342(a), enable their holders to dis-

charge pollutants under prescribed restrictions. The per-

mits generally adopt the effluent limitations contained in

’This description of flow in the arroyos is taken from the findings of

fact made by EPA’s Regional Administrator. In the court of appeals,

petitioners challenged these findings, but the court held that they were

supported by substantial evidence presented at an adjudicatory hearing

conducted by EPA (Pet. App. 6a). Although petitioners continue to

criticize the evidence (Pet. 5-6 nn.4-5), the question presented by the

petition does not involve the sufficiency of the evidence.

4

regulations issued by EPA under Sections 301 and 304 of

the Act, 33 U.S.C. 1311, 1314. The NPDES permit “trans-

form{s] generally applicable effluent limitations * * * into

the obligations (including a timetable for compliance) of the

individual discharger.” EPA v. California ex rel. State

Water Resources Control Board, 426 U.S. 200, 205 (1976).

EPA issued NPDES permits for discharges from Quivi-

ra’s Lee Mine and Ambrosia Lake mill and from Home-

stake’s mill (Pet. App. 2a), but petitioners later concluded

that they were exempt from the Act’s permit requirements.

They contended that San Mateo Creek, into which their

discharges flowed, is not a “water of the United States”

within the meaning of Section 502(7) of the Clean Water

Act, 33 U.S.C. 1362(7), and, therefore, their discharges into

the creek were beyond the Act’s regulatory coverage and

required no NPDES permits whatever.‘

2. In 1978, petitioners obtained an evidentiary hearing

before an administrative law judge to present their

argument that EPA lacked authority to regulate their

‘The point into which a pollutant is discharged determines the reguia-

tory coverage of the Clean Water Act. Section 402(a) of the Act, 33

U.S.C. 1342(a), requires dischargers to obtain an NPDES permit. In the

absence of an NPDES permit, the “discharge of any pollutant” is

generally forbidden by Section 301(a) of the Act, 33 U.S.C. 1311(a),

except in compliance with other specified provisions of the Act. But the

“discharge of a pollutant” is defined in Section 502(12), 33 U.S.C.

1362(12), to mean “any addition of any pollutant to navigable waters

* * *” “Navigable waters,” in turn, are defined in Section 502(7), 33

U.S.C. 1362(7), as “the waters of the United States, including the

territorial seas.”

In adopting this definition of “navigable waters,” Congress intended

the phrase to be read broadly. In the words of the Conference Commit-

tee (S. Conf. Rep. 92-1236, 92d Cong., 2d Sess. 144 (1972)):

The conferees fully intend that the term “navigable waters” be

given the broadest possible constitutional interpretation unen-

cumbered by agency determinations which have been made or

may be made for administrative purposes.

5

discharges.* In March 1981, EPA’s Regional Administrator

issued two separate initial decisions—one for each peti-

tioner—but the text of each was virtually identical (Pet.

App. 8a-16a, 21a-29a). The Regional Administrator con-

cluded that Arroyo del Puerto, as tributary both to the Rio

Grande, a navigable waterway, and to San Mateo Creek, a

stream affecting interstate commerce, “is [itself] capable of

affecting interstate commerce” (id. at | la, 24a) and qualifies

as a “navigable water” under the Clean Water Act (ibid.).

As previously explained (see pages 2-3 & note 3, supra),

the Regional Administrator made factual findings that, on

“relatively rare” occasions, estimated by one area resident

to occur on an average of once every five years, precipita-

tion produced sufficient flow to carry the waters of Arroyo

del Puerto and San Mateo Creek 23 miles downstream to

Rio San Jose (Pet. App. 10a, 23a). Typically, however,

surface flow attributable to discharges diminishes at a point

on San Mateo Creek 1.3 miles below its junction with

Arroyo del Puerto, where it begins to evaporate or enters an

underground aquifer to reemerge at Horace Springs and

enter the Rio San Jose (id. at 9a-10a, 22a-23a).§ On “various

occasions,” precipitation would carry the flow to all or part

‘Homestake agreed that its claim could be resolved on the record

developed at the Quivira hearing (Pet. 4). That hearing addressed

Quivira’s discharges from the Ambrosia Lake mill into Arroyo del

Puerto, but it did not address Quivira’s discharges from the Lee Mine

into San Mateo Creek.

Quivira’s request for an evidentiary hearing to review its Lee Mine

permit was denied by EPA’s Regional Administrator (Pet. 6 n.6; Pet.

App. 34a-35a) on the ground that the issue had been resolved in the

EPA proceeding concerning Quivira’s discharges into Arroyo del

Puerto. In this Court, petitioners do not challenge EPA’s refusal to hold

a separate hearing for the Lee Mine permit.

‘The travel time for this underground flow to reemerge at Horace

Springs was found to range from 154 to 1,000 years (Pet. App. 10a, 23a).

+

6

of the Bert Roundy Ranch, until it was diverted by spreader

dams used on the ranch or obstructed by a tailings pile that

Homestake had placed in San Mateo Creek below the ranch

(id. at 10a-1la, 22a-24a). On the Roundy Ranch, some of

the cattle, which feed on grasses irrigated by San Mateo

Creek water or which drink from the Creek or from wells to

its underlying aquifer (id. at 1 la, 24a), were consigned “for

auction in the interstate cattle market” (ibid.). From these

findings, the Regional Administrator concluded that “San

Mateo Creek and its tributary, Arroyo del Puerto, are

‘navigable waters,’ ” which, under the mandate of the Clean

Water Act, must be protected by EPA (id. at 16a, 29a).

Petitioners asked the Administrator to review the

Regional Administrator’s decisions; in August 1983,

further agency review was denied because the Regional

Administrator’s findings and conclusions could not “be

termed ‘clearly erroneous’ for purposes of deciding whether

or not to accept review” (id. at 19a, 32a).

3. Petitioners sought judicial review in the United States

Court of Appeals for the Tenth Circuit.’ The court of

appeals affirmed the agency’s decisions (Pet. App. 1la-7a).

The court of appeals refused petitioners’ invitation to

“engage in independent or de novo review without giving

weight to the determination of the Administrator” (id. at

3a). Instead, the court reviewed EPA’s decisions under the

“substantial evidence” test of the Administrative Procedure

Act, 5 U.S.C. 706(2)(E) (Pet. App. 3a).* Under this test, the

7Section 50%(b)(1) of the Clean Water Act, 33 U.S.C. 136%(b)1),

confers jurisdiction on the courts of appeals to review various EPA

determinations, including EPA’s actions “in issuing or denying any

[NPDES] permit under” Section 402 of the Act, 33 U.S.C. 1342.

*In this Court, petitioners do not directly challenge the standard of

review employed by the court of appeals.

7

court of appeals held that substantial evidence supported

EPA’s findings (id. at 6a-7a)

that during times of intense rainfall, there can be a

surface connection between the Arroyo del Puerto,

San Mateo Creek and navigable-in-fact streams.

Further, the record supports the finding that both the

Arroyo del Puerto and San Mateo Creek flow for a

period after the time of discharge of pollutants into the

waters. Further, the flow continues regularly through

underground acquifers [sic] fed by the surface flow of

the San Mateo Creek and Arroyo del Puerto into

navigable-in-fact streams. The court finds that the

impact on interstate commerce is sufficient enough to

satisfy the commerce clause. And, as noted above, it

was the clear intent of Congress to regulate waters of

the United States to the fullest extent possible under

the commerce clause.

ARGUMENT

The decision of the court of appeals is correct and does

not conflict with any decision of this Court or any other

court of appeals.’ Accordingly, further review is not

warranted.

On facts no longer directly challenged by petitioners, the

court of appeals sustained a determination by the Environ-

mental Protection Agency that two sparsely watered arroyos

in the arid southwest, which conduct subsurface and inter-

mittent surface flows into tributaries of the navigable Rio

Grande, and are used by the interstate cattle industry,

‘Petitioners’ primary contention (Pet. 10-11) is that the decision

below conflicts with United States v. Riverside Bayview Homes, Inc.,

729 F.2d 391 (6th Cir. 1984). That contention, which we believe was

without merit in any event, no longer warrants consideration in light of

this Court's reversal of the Sixth Circuit’s decision (No. 84-701 (Dec. 4,

1985)).

rr 8

qualify as “waters of the United States.” Hence, the arroyos

constitute “navigable waters” as broadly defined by Section

502(7) of the Clean Water Act, 33 U.S.C. 1362(7), and

discharges of pollutants into the arroyos require NPDES

permits under Section 402(a), 33 U.S.C. 1342(a). This result

comports with a decision rendered more than 10 years ago

in United States v. Phelps Dodge Corp., 391 F. Supp. 1181

(D. Ariz. 1975). There, in a criminal prosecution, the court

refused to dismiss an information alleging that discharges

of pollutants were made into an arroyo in violation of

Sections 301(a) and 309(c)(1) of the Act, 33 U.S.C. 1311(a),

1319(c)(1). The court held that the Clean Water Act con-

trolled pollutant discharges into “any waterway, including

normally dry arroyos, where any water which might flow

therein could reasonably end up in any body of water, to

which or in which there is some public interest, including

underground waters” (391 F. Supp. at 1187 (emphasis in

original)). The court explained that (ibid.)

a legal definition of “navigable waters” or “waters of

the United States” within the scope of the [Clean

Water] Act includes any waterway within the United

States also including normally dry arroyos through

which water may flow, where such water will ulti-

mately end up in public waters such as a river or

stream, tributary to a river or stream, lake, reservoir,

bay, gulf, sea or ocean either within or adjacent to the

United States.[']

10 Phelps Dodge also held that, for purposes of a criminal prosecu-

tion, the statutory term “waters of the United States” was not void for

vagueness on due process grounds (391 F. Supp. at 1187-1188). Accord

Uniied States v. Oxford Royal Mushroom Products, 487 F. Supp. 852,

854-855 (E.D. Pa. 1980). The same conclusion was reached in civil

enforcement proceedings under the Clean Water Act. United States v.

Tull, 769 F.2d 182, 186 (4th Cir. 1985).

9

Phelps Dodge has been cited with approval in Avoyelles

Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897,915 n.32,

917 (Sth Cir. 1983); and United States v. Huebner, 752 F.2d

1235, 1239 n.6 (7th Cir. 1985), cert. denied, No. 84-1613

(Oct. 7, 1985). There have been no contrary decisions hold-

ing that discharges into arroyos are beyond the statutory

reach of the Clean Water Act or the constitutional reach of

the Commerce Clause. Indeed, this Court has expressed its

agreement “with the lower courts that have uniformly

found the power conferred by the Commerce Clause broad

enough to permit congressional regulation of activities

causing air or water pollution, or other environmental

hazards that may have effects in more than one State.”

Hodel vy. Virginia Surface Mining & Reclamation Ass'n,

452 U.S. 264, 282 (1981) (emphasis added). See also United

States v. Tull, 769 F.2d 182, 185 (4th Cir. 1985); United

States v. Byrd, 609 F.2d 1204, 1209-1210 (7th Cir. 1979).

And, contrary to petitioners’ contention (Pet. 10-11 &

n.10), no case has held that activities having-a “connection

to water affecting interstate commerce * * * as attenuated

as that presented here” are beyond the constitutional reach

of the Clean Water Act."!

‘Indeed, the cases cited by petitioners (Pet. 10-11 n.10) indicate that

the effect on interstate commerce may well be tenuous yet still be

sufficient to support jurisdiction under the Clean Water Act. Thus,

discharges into remote tributaries of navigable rivers have been held to

be within the reach of the Act, even when there was only “a small flow of

water” in the remote tributary and no evidence of flows in other streams

that fed into the river (United States v. Texas Pipe Line Co., 611 F.2d

345, 347 (10th Cir. 1979)), or when proof was totally lacking that the

discharged pollutant actually “reached and polluted the navigable

river” (United States v. Ashland Oil & Transportation Co., 504 F.2d

1317, 1329 (6th Cir. 1974)). Likewise, the courts of appeals have held

thai waters regulated under the Act include a lake entirely within a

single state, unconnected to waters outside the state (Utah v. Marsh,

740 F.2d 799, 801 , 803-804 (10th Cir. 1984)), wetlands adjacent to such a

lake (United States v. Byrd, 609 F.2d at 1208-1211), and a nonnaviga-

ble creek in a single county that fed two downstream reservoirs used for

.. 10

In addition to Phelps Dodge, the decision below is

strongly supported by United States v. Ashland Oil &

Transportation Co., 504 F.2d 1317, 1328-1329 (6th Cir.

1974). There, the court held that the coverage of the Clean

Water Act was broad enough to encompass the waters of a

remote, nonnavigable tributary upstream from a river that

was navigable in fact. The Sixth Circuit also ruled that the

government need not prove that oil, discharged into the

remote tributary, “in fact * * * reached and polluted the

navigable river” (504 F.2d at 1329). Noting that such proof

is impossible “in many if not all cases” (ibid.), and that

“(drops (or barrels) of oil carry no fingerprints” (ibid.), the

court construed the Act as dispensing with any such

requirement.!* The Sixth Circuit noted that Congress was

agricultural irrigation and recreation (United States v. Earth Sciences,

Inc., 599 F.2d 368, 374-375 (10th Cir. 1979)). See also Deltona Corp. v.

United States, 657 F.2d 1184, 1186 (Ct. Cl. 1981), cert. denied, 455 U.S.

1017 (1982); United States v. Holland, 373 F. Supp. 665, 673-676

(M.D. Fla. 1974).

Jurisdiction under the Clean Water Act on the facts of the instant

cases is thus fully consistent with the cases cited by petitioners. As

mentioned previously, the arroyos are used by the interstate cattle

industry and feed a navigable river. Such interstate impact “is all that is

necessary under the [Clean Water] Act” (Earth Sciences, 599 F.2d at

375), and, for that matter, under the Commerce Clause. Even purely

intrastate activity, combined with like conduct of others, may affect

interstate commerce. Moreover, “when Congress has determined that

an activity affects interstate commerce, the courts need inquire only

whether the finding is rational.” Hodel v. Virginia Surface Mining &

Reclamation Ass'n, 452 U.S. at 277. And the impact of isolated acts,

when “taken together with that of many others similarly situated, is far

from trivial.” Wickard v. Filburn, 317 U.S. 111, 127-128 (1942).

'2The court in Ashland cited the Senate Report on the 1972 amend-

ments to the Clean Water Act, which stated (S. Rep. 92-414, 92d Cong.,

Ist Sess. 77 (1971)):

Water moves in hydrologic cycles and it is essential that discharge

of pollutants be controlled at the source. Therefore, reference to

the control requirements must be made to the navigable waters,

portions thereof, and their tributaries.

11

concerned with the pollution of nonnavigable tributaries as

weil as navigable streams and concluded that “it is incon-

testable that substantial pollution of one not only may but

very probably will affect the other” (ibid.). This analysis

clearly comports with the decision below and with the hold-

ing of Phelps Dodge, 391 F. Supp. at 1187, that “normally

dry arroyos” are “waters of the United States” if their

flowage “could reasonably end up” in rivers or tributaries.'°

13Petitioners also challenge (Pet. 11 n.10) the alternative basis for the

decision below, which relied on groundwater flow connecting the

arroyos with “navigable-in-fact” streams (Pet. App. 6a-7a). Petitioners

cite (Pet. 11 n.10) two decisions that they claim rejected “EPA’s

attempts to regulate discharges to groundwater.” The two decisions

—Exxon Corp. v. Train, 554 F.2d 1310 (Sth Cir. 1977), and United

States v. GAF Corp., 389 F. Supp. 1379 (S.D. Tex. 1975) — cannot be

characterized so broadly. Both cases involved the injection of industrial

wastewater directly from the surface into subsurface deep wells,

whereas the discharges involved here were made into surface waters in

the arroyos. Both groundwater cases stand for the proposition that

direct deepwell injecticn is not a “discharge” into “waters of the Jnited

States” within the meaning of the Clean Water Act. But they are not

authority for narrowing the Act’s coverage of discharges into surface

waters that feed subsurface aquifers, which, in turn, feed other surface

waters. Indeed, the district court in GA F Corp., 389 F. Supp. at 1383,

limited its exclusion of groundwater from regulated waters under the

Act to those “underground waters which have not been alleged to flow

into or otherwise affect surface waters.” EPA’s findings in the present

cases, however, are to the effect that the underground waters do indeed

flow into surface waters (Pet. App. 10a, 23a).

12

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

F. HENRY HABICHT II

Assistant Attorney General

JULIE WEISMAN

RoBERT L. KLARQUIST

Dirk D. SNEL

Attorneys

FRANCIS S. BLAKE

General Counsel

JOSEPH FREEDMAN

Attorney

Environmental Protection Agency

DECEMBER 1985

DOJ-1985-12