Petition for Writ of Certiorari — Members of the California Regional Water Quality Control Board v. Committee to Save the Mokelumne River
Supreme Court brief1994
Ask Donna
What actually matters in this document.
Text
In The QEEICE OF IHE CLERK
Supreme Court of the United States
October Term, 1994
+
MEMBERS OF THE CALIFORNIA REGIONAL WATER
QUALITY CONTROL BOARD, CENTRAL VALLEY
REGION, IN THEIR OFFICIAL CAPACITY, AND
EAST BAY MUNICIPAL UTILITY DISTRICT, A
CALIFORNIA MUNICIPAL UTILITY DISTRICT,
Petitioners,
V.
COMMITTEE TO SAVE THE MOKELUMNE RIVER,
Respondent.
¢
On Petition For A Writ Cf Certiorari To The
United States Court Of Appeals For The Ninth Circuit
+
PETITION FOR A WRIT OF CERTIORARI
©
Danie. E. LUNGREN Rosert C. Hetwick
Attorney General of the Chief of Resources Law
State of California East Bay Municipal Utility
Roperick E. WALSTON neers
Chief Assistant 375 11th Street
Attorney General Oakland, California 94607
Douc.tas B. Nose EpwarbD BERLIN
Acting Assistant LEONARD A. MILLER
Attorney General ANprREW L. Lipps
SwipLer & BERLIN, CHARTERED
SARA J. DRAKE
Deputy Attorney General 3000 K Street, N.W., #300
Counsel of Record Washington, D.C. 20007
1515 K Street, Suite 511 saci aaa
P.O. Box 944255 Attorneys for Petitioner
Sacramento, California East Bay Municipal Utility
94244-2550 District
(916) 324-5375
Attorneys for Petitioners
Members of California Regional
Water Quality Control Board,
Central Valley Region, in their
official capacity July 20, 1994
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
E:....
QUESTION PRESENTED
The Clean Water Act states, “It is the policy of the
Congress to recognize, preserve, and protect the primary
responsibilities and rights of States to prevent, reduce,
and eliminate pollution.” 33 U.S.C. § 1251(b). The ques-
tion presented is:
Whether Congress intended to impose liability under
Section 301(a) of the Clean Water Act on a State Agency,
and a municipal entity acting at the request of the State
Agency, for taking regulatory action to control acid mine
drainage from an abandoned mine.
ii
PARTIES TO THE PROCEEDING
The names of all parties in the court below are set
forth in the caption of the case.
ae
TABLE OF CONTENTS
Page
Cee PIN oo boise es i.e i
PARSIn® 10) Bree FROCBEOING 65.05 22 6c. ceed... ii |
IE Sg os ohio cas canes sh sueesciecns iii
po A oe. Fee vi
cee pis asec asavencens Gesane ye 1
JURISDICTION ........... tO PL ey Ph ee Cee ere 1
STATUTES INVOLVED IN THE CASE ............. 2
ye ae Be 8 at 2
i rg 5 as 5 x0 meinen cayeeecece: 3
B. Cooperative Efforts to Control the Pollution |
ae eke i res wa C40 as vanes 05 8 65h 08's 4
C. The Beneficial Effect of the Mine Run Dam.... 7
D. The District Court Litigation .................. 8
et ee ee ee. ee 10
REASONS FOR GRANTING THE PETITION ....... 10
CS ik oc tw ne dea vee'ews ts cota sngs ae snceecses 10
I. The Intent of Congress to Improve and Pre-
serve the Quality of the Nation’s Waters and to
Preserve the Primary Role of the States to
Implement the Clean Water Act is Thwarted by
the Ninth Circuit Decision................... 12
II. The Ninth Circuit Decision Has Had and Will
Continue to Have a Chilling Effect on State
RUE PIRI ov ccc carne ctecvessscess 14
ITI.
IV.
iv
TABLE OF CONTENTS - Continued
Page
The Ninth Circuit Decision is Contrary to Fed-
eral Decisions Requiring Only Those Respons-
ible for Adding Pollutants to Navigable Waters
from the Outside World Through a Point
Source to Obtain an NPDES Permit.......___
A. The Ninth Circuit Decision Ignores the Fact
that Causation is a Required Element for
Liability Under the Clean Water Act ...._.
B. The Mere Existence of a Point Source Does
Not Satisfy the Causation Requirement
Necessary to Impose NPDES Permit Lia-
see! LETTE eT re ES Re
C. Because the Regional Board and EBMUD
Did Not Cause the Acid Mine Drainage,
They Should Not Be Held Liable Under
etn Wee Ae...
Imposing Liability on the Regional Board and
EBMUD Under the Clean Water Act for Regu-
latory Actions Taken to Abate Pollution
Thwarts CERCLA’s Purposes as Well as Those
of the Clean Watet-Act.i..66 0.450555.
A. The Congressional Intent That States Take
Action to Abate Pollution Has Been Car-
ried Forward from the Clean Water Act
MO A icsseent A. ee
B. Pre-CERCLA Regulatory Cleanup Actions
Are Deemed to Have Been Performed
Under the Same “Protective Umbrella”
That Prevents States From Becoming Liable
for CERCLA Cienigngs 5 isc, a Fee
17
17
19
20
22
22
Vv
TABLE OF CONTENTS - Continued
Page
C. Imposing Liability on the Regional Board
and EBMUD Pursuant to the Clean Water
Act Undermunes CERCLA. «occ cic coccses 27
RA MGI + Koa 5 see Kone Fh0 Le Rn eerie 29
vi
TABLE OF AUTHORITIES
Page
FepeRAL Cases
American Paper Institute, Inc. v. EPA, 890 F.2d 869
OR MF BIOD scsi ee 13
Appalachian Power Co. v. Train, 545 F.2d 1351 (4th
WA, SOME, sayin chenend cstsacke uaa ete 19, 20
Arkansas v. Oklahoma, 112 S.Ct. 1046 i. . eG. 10, 12
Berman v. Parker, 348 Se EON oaks 28
Boise Cascade Corp. v. EPA, 942 F.2d 1427 (9th Cir.
ites RAT TEES a rs os a 13
Friends of Sakonnet v. Dutra, 738 F. Supp. 623
ORL. BOD one ins isn ensactianabeccee hated oe 21, 26
In re Paoli R.R. Yard PCB Litigation, 790 F. Supp. 94
(E.D. Pa.) aff'd, 980 F.2d 724 (3d Cir. 1992)........ 23
International Paper Co. v. Ouellette, et al., 479 U.S.
wed inal LETTE Re 12
Kennecott Copper v. EPA, 612 F.2d 1232 (10th Cir.
alah DET ee eee a ee 12
Lake Cumberland Trust, Inc. v, EPA, 954 F.2d 1218
COR Ce Sai is secs Sete he Cee Tre TT Tee 13
Lincoln v. Republic Ecology Corp., 765 F. Supp. 633
iE TR Oil 15
National Wildlife Federation v. Consumers Power Co.,
862 F.2d 580 (6th Cir. | ne Saale 19, 20
National Wildlife Federation v. Gorsuch, 693 F.2d 156
(OX. Ce Te. 5 5 oe 11, 17, 18, 19, 20, 26
Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989) ..... 25
vii
TABLE OF AUTHORITIES - Continued
Page
State of Missouri ex rel. Ashcroft v. Department of the
Army, 672 F.2d 1297 (8th Cir. 1982) .........-..--. 20
State of N.Y. v. Shore Realty ( »., 759 F.2d 1032
CAGED ns she TiN eek WEN ha cade hens dave Sade 22, 23, 25, 26
Stilloe v. Almy Bros., Inc., 782 F. Supp. 731
(NDI, 1992)... cccccsssnaccnasseccecessacsscess 23
United States v. Azrael, 765 F. Supp. 1239 (D.Md.
SDD wick ces cndddcddsdsunth tacgttveneteeias cs 24, 26
United States v. Dart Industries, Inc., 847 F.2d 144
(fe. Serre rerrrrr rrr Tey rere re 23
United States v. Earth Sciences, Inc., 599 F.2d 38
1 ot 2... Perper rr err rrr: rir rr ce 13, 25
United States ex rel. TVA v. Tennessee Water Quality
Control Board, 717 F.2d 992 (6th Cir. 1983), cert.
denied, 466 U.S. 937 (1984) ........... eee ee eee eee 20
United States v. Mottolo, 695 F. Supp. 615 (D.N.H.
Ros cpap scacendcasasudcedecpessonnsSaaPixs4s 7s 26
United States v. Northeastern Pharmaceutical, 810
F.2d 726 (Oth Cir. 1986). .......cccccccsccecceseees 26
United States v. Skipper, 781 F. Supp. 1106
CREATE... BORED. ccc cccsccescccecesvevedsevesen 22, 27
United States v. Stringfellow, 31 E.R.C. 1315 (C.D.
Ce, MN irauwedaebadececdvdvedsesectdeuseesanes 23
FEDERAL STATUTES AND REGULATIONS
y Rik aa errr re rrr reer ere er rc 1
SD UGC. OR BESIUSET... ccc cece ccc escescssesees 2
BD UK BD TOO 6s va cc ccccvevccccscuccecevscsces 12
Vili
TABLE OF AUTHORITIES ~ Continued
Page
33 U.S.C. § PO 1869 0 Csi rdn sui staigee elas 12
33 U.S.C. § OOM 8 6a ce bi veueuiey Hele ney Mee es 25
idl ato. sexu Oe eR IS 3. 9
Weliiisiitid icc Se ee ne 22
a TP N05 dy 6 5 od Lag OE 2, 9, 18, 25
33 U.S.C. § PPM AS Cason ces cus cine ee 18
33 U.S.C. § wo sputh coe sg, POET TCE Oe Oe Roki ate Pier 25
33 U.S.C. § 1 nig ee REE 17
Wr OMENS Fe Sanne ssasens (accche eee 8
al ho nese acning TP 6
42 U.S.C. § MTOM» < wbinaiin Geut taege eae 24, 25
42 U.S.C. § WM HPN i vinous seh: os see 25
42 U.S.C. § 1 he igecguet EE MTT SE, 24, 25
WF EY Bs ickesic. cede aa Eee 20
STATE STATUTES
California Water Code
§ 13304(a) (Deering 1977 & SUPP. 1999). .n......, 5
§ 13304(b) (Deering 1977 & Supp. 1993)............ 5
§ 13305 (Deering 1977 & Supp. 1993) ........ 0 a
§ 13305(e) (Deering 1977 & Supp. PO ee 5
§ 13305(e)(1) (Deering 1977 & Supp. 1993) ...... 5
ix
TABLE OF AUTHORITIES - Continued
Page
OTHER AUTHORITIES
118 Cong. Rec. 33715 (1972) (statement of Sen.
Bayh), reprinted in 1 Congressional Research
Service, A Legislative History of the Water Pollu-
tion Control Act Amendments of 1972, 93d Cong.,
ist Sess., at 216 (Comm. Print 1973) ...............
118 Cong. Rec. 10203 (1972) (statement of Rep.
Madden), reprinted in 1 Congressional Research
Service, A Legislative History of the Water Pollu-
tion Control Act Amendments of 1972, 93d Cong.,
let Sees.,. At ZIG (COM TInt E9735) ocak occ ce css
California Stats. 1969, ch. 482, § 33, p. 1088.........
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Petitioners, Members of the California Regional
Water Quality Control Board, Central Valley Region
(“Regional Board”) and East Bay Municipal Utility Dis-
trict (“EBMUD”), respectfully petition for a writ of cer-
tiorari to review the decision of the United States Court
of Appeals for the Ninth Circuit in this case.
¢
OPINIONS BELOW
The opinion of the court of appeals on interlocutory
appeal is reported at 13 F.3d 305 and is reproduced in the
Appendix at pages Al-Al4. The opinion of the district
court granting partial summary judgment as to liability in
favor of respondent was not published; it is reproduced
in the Appendix at pages A15-A60.
S
JURISDICTION
The decision of the Ninth Circuit affirming the dis-
trict court decision was entered on December 29, 1993.
The Ninth Circuit order denying the petition for rehear-
ing and rejecting the suggestion for rehearing en banc
was entered on April 21, 1994. App., p. A61. This Court
has jurisdiction to grant certiorari to review this inter-
locutory appeal pursuant to 28 U.S.C. § 1254(1).
¢
STATUTES INVOLVED IN THE CASE
The relevant statutory and regulatory provisions are
reproduced in the Appendix at pages A63-A87.
*
STATEMENT OF THE CASE
Petitioners are the members of the California state
agency charged with administration of the Clean Water
Act,? 33 U.S.C. §§ 1251-1387, and a municipal utility
district orga \ized under California law. After the owners
of an abandoned mine failed to comply with Regional
Board orders directing them to clean up the continuing
pollution caused by the mine, the Board, acting in its
regulatory capacity, took a series of actions to mitigate
the impacts to navigable waters caused by the discharge
of pollutants from the mine. Pursuant to its authority
under state law to seek assistance from other public agen-
cies, the Board requested EBMUD to cooperate with the
Regional Board in those actions. This case presents an
important question of first impression: Do these regula-
tory actions subject the Regional Board and EBMUD to
liability under the Clean Water Act?
' The State of California, through its State Water Resources
Control Board and nine regional boards, carries out the point
source permitting program of Section 402, 33 U.S.C. § 1342, of
the Clean Water Act, in lieu of a federally administered pro-
gram, subject to certain oversight authority and enforcement
powers by the United States Environmental Protection Agency
(“EPA”). App., pp. A68-A70.
A. The Pollution Problem
Penn Mine is an abandoned copper and zinc mine
which operated intermittently for approximately 100
years, ending in the 1950’s.2 The companies that mined
the site left behind reactive mine tailings, waste rock and
excavated ores. When these reactive materials are
exposed to oxygen and water they oxidize, forming acid.
This acid leaches heavy metals in the area of the reaction.
Rainwater or other water flowing over the oxidized mate-
rials readily dissolves and carries the acid and metals as
it flows. The result is what is referred to as acid mine
drainage.
The formation of acid mine drainage is self-perpetu-
ating: once it starts it will continue until all the reactive
materials have oxidized. The overwhelming source of
most of the acid mine drainage at Penn Mine is the waste
rock piles. At least 50 percent of the reactive materials in
these piles has oxidized, so that any water runoff touch-
ing these wastes will transport acid and metals.
The portion of the Penn Mine site at issue is drained
by two intermittent creeks, Hinkley Run and Mine Run
creeks. Runoff passing through and over the mine wastes
results in an acid mine drainage discharge into these
creeks which, prior to 1978, flowed directly into the
waters of Lake Camanche and the Mokelumne River.
Penn Mine discharges of acid mine drainage into the
creeks degraded aquatic life in the Mokelumne for
2 Penn Mine is located in Calaveras County, California,
adjacent to a portion of the Mokelumne River that is now Cam-
anche Reservoir.
decades. Over 30 years ago, State agencies knew that
polluted water flowed down the creeks every time it
rained more than one-half inch in 24 hours and that
conditions likely to cause fishkills occurred in the
Mokelumne River if the river levels were low.
For many years, the Regional Board tried unsuc-
cessfully to regulate releases from Penn Mine to the
creeks through permits, administrative enforcement
orders and court actions. In 1975 the Regional Board
directed the mine owner, New Penn Mines, Inc., to apply
for an NPDES permit, but it did not comply with that
direction or any other Regional Board requirements. New
Penn Mines, Inc., remains the owner, but is now defunct
with no known assets.
B. Cooperative Efforts to Control the Pollution
Problem
Following fruitless efforts to have the owners reme-
diate the abandoned mine site, in 1978, after notice and
public hearing, the Regional Board adopted a resolution
requesting EBMUD* to participate in a project to abate
the polluted discharges from the abandoned mine site.
3 Chronic, severe acid mine drainage pollution affects
many abandoned mines in California. The most devastating
problem is at Iron Mountain Mine. At least seven other mines in
the Sacramento river system have sterilized or degraded
streams caused by acid mine drainage.
+ In the early 1960’s EBMUD acquired through condemna-
tion a small portion of the inactive mine site to facilitate devel-
opment of the downstream Camanche Reservoir. The
confluence of Hinkley Run and Mine Run creeks runs through
the property acquired by EBMUD.
This action was taken pursuant to California Water Code
section 13305, which authorizes the Regional Board to
seek assistance from public agencies to abate pollution.°
App., pp. A83-A86.
Acting pursuant to that regulatory authority, Peti-
tioners® constructed diversion structures to prevent creek
5 A regional board may order any person who “causes or
permits any waste to be discharged . . . into the waters of the
state” in violation of a waste discharge requirement or who
“creates ... a condition of pollution or nuisance,” to clean up or
abate the effects of the waste. Cal. Water Code, § 13304(a) (Deer-
ing 1977 & Supp. 1993), App., pp. A80-A81. In the event that the
responsible party fails to do so, the regional board is authorized
to perform such cleanup, abatement or remedial work, which in
the regional board’s judgment is required under the circum-
stances, and to seek cost recovery from the responsible party.
Cal. Water Code, § 13304(b) (Deering 1977 & Supp. 1993). Where
the condition of pollution or nuisance results from a nonoperat-
ing business or industrial location, a regional board may seek
assistance from a city, county or other public agency to abate the
condition. Cal. Water Code, § 13305(e) (Deering 1977 & Supp.
1993).
6 The Regional Board was at all times acting pursuant to
clear regulatory authority to abate pollution at abandoned sites.
Cal. Water Code, § 13305 (Deering 1977 & Supp. 1993). EBMUD,
a public agency, was at all times acting pursuant to the Regional
Board’s authority to seek assistance from public agencies to
abate pollution at abandoned sites. Cal. Water Code,
§ 13305(e)(1) (Deering 1977 & Supp. 1993). For that reason,
EBMUD should be treated, in the context of this case, the same
as the Regional Board and other State agencies that are given
specific statutory authority to clean up pollution. Because of its
special statutorily-authorized role at Penn Mine, all arguments
in this petition related to State regulatory actions apply equally
to EBMUD. Any references that do not specifically include
EBMUD should be construed to mean that EBMUD is covered
by that argument.
water from entering the polluted site. They excavated
new impoundments and reconstructed existing impound-
ments within the beds of Hinkley Run and Mine Run
creeks. A dam, known as Mine Run Dam (“the Dam”),
was constructed at the confluence of the creeks. Each of
the two drainages of the creeks now contains a cascade of
three impoundments that converge into Mine Run Dam
Reservoir.” The undiverted natural flows of these creeks,
now polluted by contact with the Penn Mine site, collect
in the impoundments. From time to time, the impounded
contaminated water is recirculated from Mine Run Dam
Reservoir through a pump and pipe system back into the
upper impoundments of Mine Run Creek. When the
upper impoundments reach full capacity, the water flows
back down to the lower impoundments. The objective is
to improve storage and evaporation, thereby further
reducing the need for planned releases. The storage of the
polluted creek waters in the impoundments changes the
timing and frequency of the flow of the waters to Cam-
anche Reservoir and the Mokelumne River.
In 1986 the Regional Board and EBMUD filed a cost
recovery action pursuant to the Comprehensive Environ-
mental Response, Compensation, and Liability Act
(“CERCLA”), 42 U.S.C. §§ 9601-9675, against New Penn
Mines, Inc., seeking compensation for the monies they
had expended building the structures to control the dis-
charges from the company’s property. Finding that the
’” The record contains a schematic diagram, showing the
location of the dam, reservoir, and upper impoundments. For
the Court’s convenience, the diagram is included in the Appen-
dix at page A62.
actions taken by the Regional Board and EBMUD were
consistent with the Nationa! Contingency Plan, the Fed-
eral District Court for the Eastern District of California
entered an order on July 27, 1988, ordering New Penn
Mines, Inc. to pay the State of California $200,206 and
EBMUD $343,269.23, plus interest, for their response
costs. App., pp. A91-A96. However, because New Penn
Mines, Inc. had no assets, the judgment was never satis-
fied.
Neither the Regional Board nor EBMUD has ever
owned or operated the mine.
C. The Beneficial Effect of the Mine Run Dam
As a result of the joint effort by the Regional Board
and EBMUD, the flow of acid mine drainage in the
Mokelumne River and Camanche Reservoir from the
Penn Mine site has been substantially reduced. Since the
structures went into operation, there have been no
recorded fishkills in the river or reservoir attributable to
the contaminated flows of surface waters from Hinkley
Run and Mine Run creeks.?
8 This order is not part of the record below. Petitioners ask
the Court to take judicial notice of the order. Fed. R. Evid. 201.
9 The Executive Director of the Regional Board, in the
course of State administrative proceedings related to Mine Run
Dam Reservoir, emphasized just how important the Mine Run
Dam has been in mitigating the effects of the acid mine drainage
discharges to the reservoir and river:
The evidence clearly shows that before this dam was
constructed, the Fish and Game testimony before us
said every two years there was at least a major fish
There was no release of polluted waters from Mine
Run Dam for over six years, from May 1986 to February
1993. If the Dam had not been there, polluted creek water
would have flowed directly to the river and reservoir
during each rainy season. Because river levels were low
due to the drought, there would have been fishkills.10
D. The District Court Litigation
In October 1991, the Committee to Save the
Mokelumne River (“CSM”) brought an action against the
Regional Board and EBMUD under Section 505, the citi-
zen suit provision of the Clean Water net, 3 USC.
§ 1365, arising out of the operation of the Dam and the
other impoundments. App., pp. A72-A73. CSM con-
tended that the actions of the ‘Regional Board and
EBMUD to control the discharges of acid mine drainage
from Penn Mine Property made them owners/operators
of “point sources” and as such they must obtain a dis-
charge permit pursuant to Section 402 of the Act, the
kill. If we look back over the last weekend, the last
four days, the weekend plus a couple of days, we
have an inch-and-a-half rainfall in Sacramento. I sus-
pect that they had similar to that, maybe a little less,
in that area. If that rainfall would have occurred with-
out that dam site, I personally guarantee we would
have wiped out every living, breathing thing in that
little thread of Mokelumne River that you see right
down there now, until it got down sufficient distance
into Camanche, before it became diluted.
'© Releases occurred in February 1993, as a result of abnor-
' mally heavy rainfall during January and February, but no fish-
kills were reported.
National Pollutant Discharge Elimination System
(“NPDES”), 33 U.S.C. § 1342. In addition to seeking a
declaratory judgment, CSM also asked the court to
impose equitable relief.
On March 3, 1993, the district court granted CSM’s
motion for partial summary judgment as to liability
against the individual members of the Regional Board"
and EBMUD, determining that they are required to obtain
an NPDES permit.!2 The Ninth Circuit reviewed this deci-
sion on interlocutory appeal. While the interlocutory
appeal was pending, on September 10, 1993, the district
court granted CSM’s request for an injunction prohibiting
permitless discharges. Other than entering final judg-
ment, there is nothing further for the district court to
do.}!3
11 The Complaint against the Regional Board was dis-
missed on Eleventh Amendment immunity grounds. A separate
lawsuit was filed against the Regional Board members and con-
solidated with the pending action. For ease of reference, the
Regional Board members will be referred to hereafter as the
“Regional Board.”
12 If Petitioners are required to obtain an NPDES permit,
they will have to meet the limitations contained in that permit,
regardless of the costs required. If any discharges from the
abandoned mine do not meet the permit requirements, the
Regional Board and EBMUD they may be subject to civil penal-
ties, as well as criminal penalties, in an amount of up to $25,000
per day. 33 U.S.C. § 1319. App., pp. A65-A67.
13 On July 18, 1994, CSM submitted a form of judgment to
the district court. Petitioners do not object to the form of judg-
ment.
10
E. The Ninth Circuit Decision
On interlocutory appeal from the order granting par-
tial summary judgment, the Ninth Circuit affirmed. It
held that the Regional Board and EBMUD aare liable
under the Clean Water Act because the structures they
built and operate have “collected and channeled” pol-
luted surface runoff containing acid mine drainage into a
pollution control structure that is then discharged into
navigable waters. App., pp. A8-A9.
The Ninth Circuit also rejected Petitioners’ claim that
the Regional Board could not be held liable under the
Clean Water Act for exercising its regulatory authority to
take action to remediate existing discharges of pollution
from an abandoned mine site. The court disposed of this
contention in a single paragraph, noting only that, unlike
CERCLA, the Clean Water Act contains no express
exemptions for actions taken pursuant to regulatory
authority. Absent any authority to exempt the Regional
Board or EBMUD, reasoned the court, the district court
did not err in finding them liable. App., p. All.
¢
REASONS FOR GRANTING THE PETITION
Summary
This is an issue of first impression and one of great
importance to the States and public agencies acting at
their request. Because of the importance and the novelty
of the Ninth Circuit’s decision, the Regional Board and
EBMUD ask this Court to grant certiorari. Arkansas v.
Oklahoma, 112 S. Ct. 1046, 1052 (1992). Because no legal
11
issues remain to be resolved by the courts below, the
interlocutory nature of this petition should not prevent
this court from granting certiorari.
The decision of the court of appeals misconstrues the
scope of liability under the Clean Water Act for regula-
tory agencies and those public bodies that act in concert
with them. The decision is without precedent and ignores
the regulatory/commercial distinction that other circuit
courts have consistently applied in determining the scope
of CERCLA, another important environmental statute.
The Ninth Circuit disregarded the obligation of the
Regional Board, imposed under state law as weil as the
Clean Water Act, to take all reasonable actions to abate
pollution that threatens surface waters, particularly
where the polluter is unwilling or unable to take action
itself. The decision will have a profound chilling effect
upon the willingness of regulatory authorities and public
agencies to step into the breach left by those who aban-
don sites that continue to poilute the Nation’s waters.
The court of appeals compounded its error by disre-
garding the clear statutory mandate of the Clean Water
Act that only those persons who have caused pollutants
to be added to navigable waters from a point source are
required to obtain an NPDES permit. The Ninth Circuit’s
decision conflicts with the decision of the District of
Columbia Circuit in National Wildlife Federation v. Gorsuch,
693 F.2d 156 (D.C. Cir. 1982).
12
I. The Intent of Congress to Improve and Preserve the
Quality of the Nation’s Waters and to Preserve the
Primary Role of the States to Implement the Clean
Water Act is Thwarted by the Ninth Circuit Decision
Because the Clean Water Act does not “speak directly
to the issue” of what liability a State incurs when it acts
to control the adverse impacts of pollution caused by
another, “the Court must be guided by the goals and
policies of the Act,” International Paper Co. v. Ouellette, et
al., 479 U.S. 481, 493 (1987). “[T]he guiding star is the
intent of Congress to improve and preserve the quality of
the Nation’s waters. All issues must be viewed in the
light of that intent.” Kennecott Copper v. EPA, 612 F.2d
1232, 1236 (10th Cir. 1979) (quoting with approval Ameri-
can Petroleum Inst. v. EPA, 540 F.2d 1023, 1028 (10th Cir.
1976), cert. denied, 430 U.S. 922 (1977)).
This Court previously has recognized the important
role Congress intended for States. “The Clean Water Act
anticipates a partnership between the States and the Fed-
eral Government, animated by a shared objective: ‘to
restore and maintain the chemical, physical and biolog-
ical integrity of the Nation’s waters.’ 33 USC § 1251(a).’”"14
Arkansas v. Oklahoma, 112 S. Ct. at 1054. Congress manda-
ted that States have the primary responsibility in the
implementation of the Clean Water Act, including the
prevention, reduction and elimination of pollution. “It is
the policy of the Congress to recognize, preserve, and
protect the primary responsibilities and rights of States to
prevent, reduce, and eliminate pollution.” 33 U.S.C.
'* 33 U.S.C. § 1251(a) appears in the Appendix at page
A63.
13
§ 1251(b). App. A63-A64. Courts have consistently recog-
nized the primary role to be played by States.’
Congress did not intend to require States to obtain
permits under the Clean Water Act when they act pur-
suant to their regulatory authority to abate another’s
discharge of pollutants to navigable waters. In fact, Con-
gress never contemplated that States would become liable
under the Act as dischargers for such regulatory actions.
The legislative history of the Clean Water Act makes it
clear that Congress was concerned with controlling pollu-
tion caused by industry and other polluters.'© The legisla-
tive history is replete with references to “industry” and
“polluters.”
The whole thrust of the bill is to force industry
to do the best job it can do to clean up the
Nation’s water, and to keep making progress,
without incurring such massive costs that eco-
nomic chaos would result.
118 Cong. Rec. 33715 (1972) (statement of Sen. Bayh),
reprinted in 1 Congressional Research Service, A Legisla-
tive History of the Water Pollution Control Act Amendments
of 1972, 93d Cong., 1st Sess., at 216 (Comm.Print 1973)
(hereinafter “Leg. Hist.”).
15 Lake Cumberland Trust, Inc. v. EPA, 954 F.2d 1218, 1220
(6th Cir. 1992); Boise Cascade Corp. v. EPA, 942 F.2d 1427, 1429
(9th Cir. 1991); American Paper Inst., Inc. v. EPA, 890 F.2d 869, 873
(7th Cir. 1989).
16 Caselaw underscores this Congressional concern. “The
touchstone of the regulatory scheme is that those needing to use
the waters for waste distribution must seek and obtain a permit to
discharge that waste.” United States v. Earth Sciences, Inc., 599
F.2d 368, 373 (10th Cir. 1979) (emphasis added).
14
The emphatic provision of this legislation is that
the Federal enforcement power will be enacted
to prosecute violators of this legislation and
compel complete compliance, without excep-
tion, to any [sic] pollutors, whether large or
small.
118 Cong. Rec. 10203 (1972) (statement of Rep. Madden),
reprinted in Leg. Hist. at 347. Petitioners have been unable
to locate any reference in the legislative history of the
Clean Water Act that would indicate that Congress ever
considered, much less intended, that a State would
become liable as a discharger for taking regulatory
actions to abate the adverse impacts of discharges of
pollution caused by another.
Il. The Ninth Circuit Decision Has Had and Will Con-
tinue to Have a Chilling Effect on State Cleanup
Actions
If the Ninth Circuit decision is allowed to stand and
States become liable when they undertake remedial
action to mitigate discharges to navigable waters of pol-
lution caused by others, all States will, understandably,
become reluctant to take any action to clean up polluted
sites. The profound consequence of the Ninth Circuit's
decision was recognized by Judge Fernandez in his con-
curring opinion.!7
'7 At least one other court has noted the potential chilling
effect on regulatory abatement activities from imposing liability
on governmental agencies. “[I]f cities were held potentially lia-
ble under CERCLA each time they undertook to abate a public
nuisance or engaged in a sovereign function which was, at best,
15
Appellants earnestly argue that [holding the
dam is a point source of pollution from the
abandoned mine] will not serve the long-term
purpose of bettering the aquatic environment.
They indicate that it takes no genius or epopt to
see what the message will be. Do nothing! Let
someone else take on the responsibility. Let the
water degrade, let the fish die, but protect your
pocketbook from past and unnecessary expendi-
tures. Do not try to bring some order out of
environmental chaos. In short, appellants sug-
gest that no Odysseus or Daedalus crafted the
policy which we are now asked to follow. Per-
haps they are correct; I suspect they are.
App., pp. A13-A14. The imposition of virtually unlimited
State liability is inconsistent with the Congressional
directive to restore polluted waters.
The district court’s determination, now reinforced by
the Ninth Circuit ruling, has had and will continue to
have, a chilling effect on remediation efforts all across
California, thereby frustrating the very progress toward
restoration of the Nation’s waters that underlies enact-
ment of the Clean Water Act. Following the district
court’s decision, the Executive Director of the State Board
advised the Regional Boards across California not to
undertake cleanup activities at any site, whether aban-
doned or not, where there is a potential for discharge to
surface waters. The concern, explicitly stated, is that
where the Regional Boards so act, they may be held to
remotely related to the ultimate disposition of hazardous subs-
tances into the environment, they would become quite reluctant
to fulfill their statutory mandates.” Lincoln v. Republic Ecology
Corp., 765 F. Supp. 633, 638 (C.D. Cal. 1991).
16
“be responsible for meeting the terms of an NPDES per-
mit at the cost of millions of dollars .. . [and] may also
face assessment of civil penalties.” App., p. A89. This
result simply does not make sense and is directly counter
to Congressional policy stated in the Clean Water Act.
The Penn Mine site is not unique. There are aban-
doned sites — not only mines - across California, indeed
across the Nation, that continue to discharge pollutants
into navigable waters even though commercial activity
ended long ago.!8 If the decision below is allowed to
stand, State agencies responsible for environmental regu-
lation necessarily will confront an unenviable dilemma. If
they choose to do nothing, they will forfeit their respon-
sibility to help restore the Nation’s waters for beneficial
uses. If, instead, they choose to undertake remediation
efforts which, as regulators, they would have preferred to
impose on those who abandoned their responsibilities,
they act at their peril, risking that they will be adjudged
“dischargers,” thereby shifting the enormous financial
burden of site restoration to taxpayers. 19
‘8 Mines are unique, however, because complete elimina-
tion of acid mine drainage is difficult, if not impossible. This is
due to the complexity in identifying sources and designing and
implementing effective remediation actions. For example, after
more than 10 years of effort by many parties, including EPA,
efforts are still continuing in the effort to stop the flow of acid
mine drainage from Iron Mountain Mine, located in Northern
California.
'9 All costs of meeting the requirements of an NPDES per-
mit issued to the Regional Board or its members will be borne by
California taxpayers. Particularly in times such as these when
the State of California is having difficulty meeting its other
financial obligations, the Regional Board cannot agree to such
an Open commitment on abandoned sites.
17
Iii. The Ninth Circuit Decision is Contrary to Federal
Decisions Requiring Only Those Responsible for
Adding Pollutants to Navigable Waters from the
Outside World Through a Point Source to Obtain
an NPDES Permit
A. The Ninth Circuit Decision Ignores the Fact
that Causation is a Required Element for Lia-
bility Under the Clean Water Act
The Ninth Circuit decision holding the Regional
Board and EBMUD responsible for the discharge of acid
mine drainage from an abandoned mine they neither own
nor operate fails to recognize that the critical element of
causation is missing. Although the issue of State regula-
tor liability for discharges of another’s pollution under
the Clean Water Act is one of first impression, further
support exists for the concept that Congress contem-
plated that only those responsible for causing the addi-
tion of pollutants to navigable waters are required to
obtain an NPDES permit.
Five elements must be present before NPDES require-
ments apply to a particular discharge: “(1) a pollutant
must be (2) added (3) to navigable waters (4) from (5) a point
source.”2° National Wildlife Federation v. Gorsuch, 693 F.2d
at 165 (referencing the statutory definition of “discharge
20 “Point Source” is defined in Section 502(14) of the Act, 33
U.S.C. § 1362(14) as:
[a]ny discernible, confined and discrete conveyance,
including but not limited to any pipe, ditch, channel,
tunnel, [or] conduit . . . from which pollutants are or
may be discharged.
App., p. A72.
18
of a pollutant,” 33 U.S.C. § 1362(12)). App., pp. A71-A72.
EPA had determined that dams are to be regulated as
nonpoint sources, not as point sources. At issue in Gor-
such was the propriety of that determination. The court
noted that as a consequence of the impoundment of
water, dams do induce water quality changes. Gorsuch,
693 F.2d at 163. Nevertheless, the court agreed that conse-
quences of the impoundment, which unquestionably
alter, in a negative way, the character of the ultimate
discharge, do not constitute the “addition” of a pollutant
by the dam and affirmed the EPA’s conclusion that dams
are not to be regulated as point sources pursuant to
Section 402, 33 U.S.C. § 1342.
In reaching this decision, the Gorsuch court recog-
nized that responsibility to obtain an NPDES permit
includes the element of causation.
The [Clean Water] Act does not define what
constitutes the “addition” of a pollutant. The
parties agree that water quality problems that
occur within a reservoir (e.g., dissolved min-
erals) are nonpoint pollution, for lack of a point
source. The Wildlife Federation argues, how-
ever, that the statutorily necessary “addi-
tion... from a point source” occurs when (1) a
dam causes pollutants to enter the reservoir and
(2) the polluted water subsequently passes
through the dam - the point source — into the
formerly unpolluted river below. [fn.57]
+ + +
[fn. 57] Both elements must be present. Without
causation, there is no legal responsibility for remov-
ing pollutants from the water.
19
Gorsuch, 693 F.2d at 174, and n.57 (citing to Appalachian
Power Co. v. Train, 545 F.2d 1351, 1377 (4th Cir. 1976))
(emphasis added). The importance of causation is also
reflected in court statements that an NPDES permit may
be required only for a facility that “itself physically intro-
duces a pollutant into water from the outside world.”
Gorsuch, 693 F.2d at 175; National Wildlife Federation v.
Consumers Power Co., 862 F.2d 580, 585 (6th Cir. 1988).
B. The Mere Existence of a Point Source Does Not
Satisfy the Causation Requirement Necessary
to Impose NPDES Permit Liability
The Ninth Circuit attempts to distinguish this case
from Gorsuch on the basis that Mine Run Dam Reservoir
“collects or channels” surface runoff from the abandoned
mine site. App., p. A8. The court correctly observes that
acid mine drainage has been “collected” by the natural
flow of surface runoff over Penn Mine property into Mine
Run Dam Reservoir and the upper impoundments. How-
ever, the collection of surface runoff by natural drainage
occurs at every dam. The collection of surface runoff,
even if contaminated with pollutants, behind a dam
impounding navigable waters?! does not make dam oper-
ators liable for discharges from a point source once that
runoff discharges from the dam. If that were so, the
Gorsuch court would necessarily have concluded that the
dam at issue required an NPDES permit. The Gorsuch
21 Surface runoff is a normal component of navigable
waters. In fact, intermittent creek flows (such as those of
Hinkley Run and Mine Run creeks) are comprised substantially
of surface runoff.
20
court took into account (and even quoted, see 693 F.2d a
175 n.58), the very regulations that define discharge of 2
pollutant and upon which the Ninth Circuit relied. 4(
C.F.R. § 122.2. App., p. A8. The Gorsuch court nonetheless
concluded that a dam that merely impounds polluted
navigable waters does not require an NPDES permit to
discharge those polluted navigable waters.22
C. Because the Regional Board and EBMUD Did
Not Cause the Acid Mine Drainage, They
Should Not Be Held Liable Under the Clean
Water Act
Petitioners are not responsible for the discharge of
pollutants to navigable waters — Penn Mine is. That con-
dition long preceded Petitioners’ appearance on the
scene. By ignoring the true source of the discharge of
pollutants —- Penn Mine — and focusing, instead, upon the
22 Courts have consistently applied the causation require-
ment. See also National Wildlife Federation v. Consumers Power Co.,
862 F.2d at 585 (holding that releases of dead fish and fish parts
associated with a hydroelectric dam into Lake Michigan do not
constitute the addition of any pollutant to navigable waters
because the fish (albeit in live form) were in the waters prior to
their impoundment by the dam); United States ex rel. TVA v.
Tennessee Water Quality Control Board, 717 F.2d 992, 999 (6th Cir.
1983), cert. denied, 466 U.S. 937 (1984) (“EPA has consistently
treated dams as... not subject to discharge permit requirements
of Section 402.”); Appalachian Power Co. v. Train, 545 F.2d at 1377 |
(“Those constituents occurring naturally in the waterways or
occurring as a result of other industrial discharges, do not con-
stitute an addition of pollutants by a plant through which they
pass”); State of Missouri ex rel. Ashcroft v. Dep't of the Army, 672
F.2d 1297, 1304 (8th Cir. 1982).
nat tl ski aa LI: PN adeeb
21
structures built by the Regional Board and EBMUD to
control the discharge, the court of appeals committed the
very error that the court in Friends of Sakonnet v. Dutra,
_ 738 F. Supp. 623 (D.R.I. 1990), cautioned against:
The words “point source” should not be sepa-
rated from the words “addition of any pollu-
tant,” nor disassociated from what they are
defining, “discharge of a pollutant.” Dwelling
on the words “point source” in isolation can
lead to absurd results that do not promote the pur-
pose of the Clean Water Act.
738 F. Supp. at 629 (emphasis added).
“Point source” is in the definition of “discharge
of a pollutant” to distinguish kinds of pollution,
not to establish the source of liability. Liability
must lie with the person or persons causing the
“addition of any pollutant to navigable waters.”
738 F. Supp. at 630 (emphasis added). Because Petitioners
' have not “caused” pollutants from Penn Mine to dis-
_ charge from a point source into navigable waters, and
' because the Dam has not added pollutants from the out-
| side world into navigable waters, Petitioners cannot be
required to obtain an NPDES permit. When Mine Run
Dam releases waters, pollutants flow into the Mokelumne
River in the form of acid mine drainage, but that is only
because those pollutants, coming from Penn Mine, are
already in the waters impounded by the Dam.
22
IV. Imposing Liability on the Regional Board and
EBMUD Under the Clean Water Act for Regulatory
Actions Taken to Abate Pollution Thwarts
CERCLA’s Purposes as Well as Those of the Clean
Water Act
The Ninth Circuit decision assigning liability under
the Clean Water Act to a State agency for regulatory
actions taken to abate pollution caused by another is a
case of first impression. However, cases discussing gov-
ernmental liability under CERCLA are instructive and
show why, on the facts here, it was error to hold the
Regional Board and EBMUD liable for discharges from
Penn Mine.
A. The Congressional Intent That States Take
Action to Abate Pollution Has Been Carried
Forward from the Clean Water Act into
CERCLA
There are many similarities between CERCLA and
the Clean Water Act, and Congress chose to implement
the CERCLA cleanup program by using the National
Contingency Plan (“NCP”) originally developed for Sec-
tion 311 of the Clean Water Act, 33 U.S.C. § 1321. United
States v. Skipper, 781 F. Supp. 1106, 1111-1112 (E.D.N.C.
1991). Further, CERCLA was enacted because the Clean
Water Act and other federal acts were inadequate to
assure the cleanup of hazardous pollution. State of N.Y. v.
Shore Realty Corp., 759 F.2d 1032, 1040 (2d Cir. 1985). As in.
the Clean Water Act, Congress contemplated a strong role
for States in carrying out CERCLA’s mandates. Congress
intended that States use their own funds for cleanup,
have more flexibility when acting on their own and
WA ace aka hte tA A deme Sihe RUS ait es AE a cp ntl en GRO ea 8 sSeiieeis akan ee Soa
23
recover their cleanup costs from responsible parties Id. at
1042-1043, 1047. For these reasons, the CERCLA cases
discussing the public policy considerations of holding a
State liable for actions taken to clean up another’s pollu-
tion provide useful guidance in construing the scope of
the Clean Water Act.
Federal courts have generally refused to hold gov-
ernmental authorities liable under CERCLA when they
are acting in their regulatory capacity — particularly when
the governmental entity has been acting to clean up haz-
ardous wastes.?9
[Rleading Sections 120(a)(1) [42 U.S.C.
§ 9620(a)(1)] and 101(20)(D) [42 U.S.C.
§ 9601(20)(D)] as waivers of sovereign immunity
for the EPA and states in carrying out their
cleanup duties would contradict the statutory
scheme of CERCLA and the policies underlying
the statute. Allowing contribution counterclaims
in this situation would undermine Congress’
intent to ensure that those who benefit finan-
cially from a commercial activity should inter-
nalize the health and environmental costs of that
activity into the costs of doing business. Further,
it would conflict with the primary objective of
CERCLA, which is to ensure prompt cleanups.
23 Numerous courts have refused to impose CERCLA lia-
bility on governmental entities for cleanup actions taken in their
reguiatory capacity. E.g., United States v. Dart Indus., Inc., 847
F.2d 144, 146 (4th Cir. 1988); In re Paoli R.R. Yard PCB Litig., 790 F.
Supp. 94, 96-97 (E.D. Pa.) aff'd, 980 F.2d 724 (3d Cir. 1992); Stilloe
v. Almy Bros., Inc., 782 F. Supp. 731, 736 (N.D.N.Y. 1992); but see
United States v. Stringfellow, 31 E.R.C. 1315, 1318-20 (C.D. Cal.
1990).
24
United States v. Azrael, 765 F. Supp. 1239, 1245 (D.Md.
1991) (citations omitted). Congress did not intend to hold
governmental entities liable under CERCLA for regula-
tory cleanup. So too, holding the Regional Board liable
for carrying out its cleanup duties under California law
and the Clean Water Act contradicts Congressional intent.
Imposing liability would conflict with the primary objec-
tive of the Clean Water Act, which is to restore the quality
of the nation’s waters.?4
The Ninth Circuit found the CERCLA cases holding
governmental entities not liable for regulatory cleanup
were inapplicable to this case simply because the Clean
Water Act does not contain a specific statutory provision
analogous to the CERCLA provisions exempting regula-
tors from liability under the Act.25 App., p. All. In so
ruling, the court ignored the policy considerations clearly
applicable to both Acts. In any event, the fact that the
Clean Water Act does not contain a specific exception to
the NPDES permitting requirements for States perform-
ing cleanup is neither surprising nor dispositive, in light
of the distinctions between CERCLA and the Clean Water
Act.
*4 Petitioners do not dispute that there are instances when a
state agency is acting pursuant to its proprietary function —- for
example, when it acts as an owner/operator of a prison with its
own sewage treatment facility - and is subject to NPDES
requirements. In those instances, the agency has caused an addi-
tion of pollutants to be discharged from a point source into
navigable waters.
2° The CERCLA governmental exemption provisions, 42
U.S.C. §§ 9601(20)(D) and 9607(d)(2), appear in the Appendix at
pages A74 and A77, respectively.
Peer eee ee Sark ue. Nee
vp . -7 % an y
Se ee ee eae ee
pe ee ee ee
25
Unlike the Clean Water Act,26 CERCLA is not a regu-
latory standard-setting statute. State of N.Y. v. Shore Realty
Corp., 759 F.2d at 1041. CERCLA is a pollution cleanup
statute, aimed at cleaning up hazardous waste sites and
imposing the costs of cleanup on those responsible for the
contamination. Pennsylvania v. Union Gas Co., 491 U.S. 1, 7
(1989). CERCLA imposes liability for the costs of reme-
dial action on all those who have caused, or in any way
contributed to, the release of hazardous waste, including
transporters, generators and past owners or operators of
a site when a discharge occurred. 42 U.S.C. § 9607(a).
Thus, it was necessary to specifically exempt from
CERCLA liability those performing governmental
cleanups. 42 U.S.C. §§ 9601(20)(D) and 9607(d)(2).
In contrast, Section 301(a) of the Clean Water Act, 33
U.S.C. § 1311{a), prohibits the discharge of any pollutant
from a point source except in compliance with, inter alia,
Section 402, 33 U.S.C. § 1342.27 Section 402 sets the condi-
tions under which a person responsible for adding pollu-
tants to navigable waters from a point source may legally
discharge those pollutants. As shown, the Clean Water
Act contemplates that only those who have actually
26 The Clean Water Act is a “comprehensive Congressional
regulatory program.” United States v. Earth Sciences, Inc., 599
F.2d at 373.
27 The language of Section 301(a) must be read in conjunc-
tion with Section 502(12)(A), of the Clean Water Act, which
defines the term “discharge of a pollutant” as “any addition of
any pollutant to navigable waters from any point source.” 33
U.S.C. § 1362(12)(A). Sections 301(a) and 502(12)(A) appear in
the Appendix at pages A63 and A71, respectively.
26
caused pollutants from the outside world to be intro
duced into navigable waters from a point source ar
liable for the discharge of that pollution. National Wildlif
Federation v. Gorsuch, 693 F.2d at 175; Friends of Sakonnet v
Dutra, 738 F. Supp. at 629. There was no need for Con:
gress to expressly exempt States from the permitting
requirements of the Clean Water Act when States are
engaged in their regulatory function of abating someone
else’s existing point source discharge of pollutants intc
navigable waters, because it was never thought that permit.
ting requirements would apply in those circumstances.
B. Pre-CERCLA Regulatory Cleanup Actions Are
Deemed to Have Been Performed Under the
Same “Protective Umbrella” That Prevents
States From Becoming Liable for CERCLA
Cleanups
States perform cleanup and abatement actions at
CERCLA sites under a protective umbrella that prevents
them from becoming liable for costs or damages as
Owners or operators of the site when they conduct the
cleanup solely in their regulatory capacity. United States v.
Azrael, 765 F. Supp. at 1245. Further, CERCLA authorizes
States to recover their cleanup costs from responsible
parties if their efforts are “not inconsistent with” the
NCP. State of N.Y. v. Shore Realty Corp., 759 F.2d at 1041.
The costs of pre-CERCLA cleanups are also recover-
able by States under CERCLA. United States v. North-
eastern Pharmaceutical, 810 F.2d 726, 735 (8th Cir. 1986);
United States v. Mottolo, 695 F. Supp. 615, 622 (D.N.H.
1988). And, governmental cleanups performed pursuant
4
27
to the Clean Water Act are entitled to the same regulatory
protections as cleanups conducted under CERCLA.
United States v. Skipper, 781 F. Supp. at 1111-1112 (holding
that the Coast Guard was acting in its regulatory capacity
when it performed a pre-CERCLA response action pur-
suant to Section 311 of the Clean Water Act and that it
could not be held liable under CERCLA for those activ-
ities).
C. Imposing Liability on the Regional Board and
EBMUD Pursuant to the Clean Water Act
Undermines CERCLA
The actions taken by the Regional Board and EBMUD
at Penn Mine were-.a pre-CERCLA regulatory cleanup.?®
28 Regional Board activities conducted at abandoned mines
pursuant to California Water Code section 13305 are specifically
recognized by the California Legislature to be regulatory.
The Legislature hereby finds and declares that over
the years chronic and continuing conditions of pollu-
tion and nuisance have resulted from the physical
and geographic locations of property once used as
industrial or business sites but not [now] in opera-
tion. The Legislature . . . finds and declares that such
conditions cannot be effectively dealt with pursuant
to other regulatory authority exercised by a Califor-
nia regional water quality control board. . . . The
Legislature, therefore, further finds and declares that
it is imperative, in order to remedy conditions of
pollution and nuisance emanating from nonoperating
industrial or business locations, such as mines, that
regional water quality control boards be authorized
to regulate such conditions in the manner provided in
Section 13305 of the Water Code.
28
By requiring that they now obtain an NPDES permit for
performing exactly the same functions at a pre-CERCLA
site as governmental agencies perform pursuant to
CERCLA,?? the Ninth Circuit decision removes
CERCLA’s protective umbrella and imposes indirectly,
through the Clean Water Act, what could not be imposed
directly under CERCLA. This effect of the court’s ruling
directly undermines Congressional intent and cannot be
countenanced - either under the Clean Water Act oi
under CERCLA.
Because they did not introduce the acid mine drain-
age from Penn Mine into navigable waters — that was
already occurring — actions they take to abate the adverse
impacts of the abandoned mine’s continuing discharge of
acid mine drainage should not make the Regional Board
and EBMUD liable for those pollutants.
California Stats. 1969, ch. 482, § 33, p. 1088, App., p. A87.
Because the legislature and not the judiciary is the main guard-
ian of the public needs to be served by social legislation, this
legislative declaration of public interest is “well-nigh” conclu-
sive. Berman v. Parker, 348 U.S. 26, 32 (1954).
29 The use of the control structures built at Penn Mine in the
1970’s is basically the same approach that has been taken at the
Iron Mountain Mine where remediation is overseen by EPA
pursuant to CERCLA. Acid mine drainage flows into Spring
Creek. The uncontaminated creek flow is diverted around the
site. The creek flow that is contaminated is impounded behind
Spring Creek debris dam where it is released periodically with-
out treatment. Releases of acid mine drainage from Iron Moun-
tain Mine are very much greater than those from Penn Mine.
29
CONCLUSION
Because of the lower court decision’s profound
impact on State efforts to abate the adverse impacts of
continuing discharges of pollution to navigable waters
caused by others, Petitioners request that the Court issue
a writ of certiorari to review the important question
presented in this petition.
DATED:
DANIEL E. LUNGREN
Attorney General of the
State of California
RoOpERICK E. WALSTON
Chief Assistant
Attorney General
Douctas B. Nose
Acting Assistant
Attorney General
Sard J. DRAKE
Deputy Attorney General
Counsel of Record
1515 K Street, Suite 511
P.O. Box 944255
Sacramento, California
94244-2550
(916) 324-5375
Attorneys for Petitioners
Members of California Regional
Water Quality Control Board,
Central Valley Region, in their
official capacity
July 20, 1994
Respectfully submitted,
Rosert C. Hetwick
Chief of Resources Law
East Bay Municipal Utility
District
375 11th Street
Oakland, California 94607
EDWARD BERLIN
LEONARD A. MILLER
ANDREW L. Lipps
SwIDLer & BERLIN, CHARTERED
3000 K Street, N.W., #300
Washington, D.C. 20007
(202) 424-7500
Attorneys for Petitioner
East Bay Municipal Utility
District
July 20, 1994
}
1
3
|
a ee
Al
COMMITTEE TO SAVE MOKELUMNE
RIVER, a California non-profit
corporation, Plaintiff-Appellee,
Vv.
EAST BAY MUNICIPAL UTILITY DIS-
TRICT, a California Municipal Utility
District, et al., Defendants-Appellants.
No. 93-15999
United States Court of Appeals,
Ninth Circuit
Argued and Submitted Sept. 1, 1993.
Decided Dec. 29, 1993.
Environmental group brought Clean Water Act action
against municipal utility district and members of regional
water quality control board, which owned and operated
abandoned mine facility, alleging that facility discharged
pollutants without National Pollutant Discharge Elimina-
tion System (NPDES) permit. The United States District
Court for the Eastern District of California, Lawrence K.
Karlton, J., found that defendants discharged pollutants
into reservoir and river without permit in violation of
Act. Defendants appealed. The Court of Appeals, Preger-
son, Circuit Judge, held that dam used to collect acid
mine drainage from abandoned mine site was subject to
Clean Water Act’s permit requirements.
Affirmed.
Fernandez, Circuit Judge, filed a concurring opinion.
Edward Berlin, Swidler & Berlin, Washington, DC,
for defendant-appellant East Bay Mun. Utility Dist.
A2
Sara J. Drake, Deputy Atty. Gen., Atty. General's
Office, Sacramento, CA, for defendant-appellant Califor-
nia Water Quality Control Bd. Members, Central Valley
Region.
Adria Y. LaRose, William S$. Curtiss, Sierra Club
Legal Defense Fund, Inc., Maria Savasta Kennedy, Mic-
hael W. Bien, Rosen, Bien & Asaro, San Francisco, CA, for
plaintiff-appellee.
Appeal from the United States District Court for the
Eastern District of California.
Before: REAVLEY,* PREGERSON, and FERNANDEZ,
Circuit Judges.
PREGERSON, Circuit Judge:
The East Bay Municipal Utility District and the mem-
bers of the California Regional Water Quality Control
Board, Central Valley Region, defendants below, appeal
the district court’s order granting partial summary judg-
ment in favor of the Committee to Save the Mokelumne
River. The district court, in a well-written, well-reasoned
opinion, found that defendants owned and operated the
Penn Mine facility, and that the facility discharged pollu-
tants into the Camanche Reservoir and Mokelumne River
without a permit, in violation of the Clean Water Act, 33
U.S.C. §§ 1251-1376. On appeal, defendants contend that
(1) Mine Run Dam, part of the Penn Mine facility, is not
subject to the discharge permit requirements of the Clean
Water Act; (2) the Water Board is immune from liability
“Hon. Thomas M. Reavley, United States Circuit Judge, U.S.
Court of Appeals for the Fifth Circuit, sitting by designation.
ip taal malian Ti ie Uy
aesthetic RSA RRR i RS RIS
:
H
i
%
3
a
S
uy
A3
under the Act; and (3) summary judgment was improper
because a triable issue of material fact exists whether
there has been an “addition of pollutants” within the
meaning of the Clean Water Act.
We have jurisdiction under 28 U.S.C. § 1292(b). We
affirm.
BACKGROUND
The Penn Mine property is the site of an abandoned
copper and zinc mine that operated intermittently from
the 1860s through the 1950s. The companies that mined
the site left behind reactive mine tailings, waste rock, and
excavated ores. When exposed to oxygen and water, these
materials form “acid mine drainage,” which contains
high concentrations of aluminum, cadmium, copper, zinc,
iron, and sulfuric acid. Unless impeded, rain water falling
on the site carries this acid mine drainage downhill, in
the form of surface runoff, into the Mokelumne River.
In the 1960s, the East Bay Municipal Utility District
(the “District”) acquired a portion of the Penn Mine prop-
erty to build the Camanche Reservoir. The District owns
water rights on the Mokelumne and supplies water to
towns and cities east of San Francisco. In 1978, the Dis-
trict, joined by the California Regional Water Quality
Control Board, Central Valley Region (the “Board”), con-
structed the Penn Mine Facility (the “facility”) in an
attempt to reduce the threat of continued toxic runoff
from the site. The facility consists of Mine Run Dam and
the Mine Run Dam Reservoir surface impoundment,
along with a series of other impoundments, drainage
ditches, pipes, valves, culverts, and channels. The Mine
A4
Run Dam and most of the Mine Run Dam Reservoir are
located on property owned by the District. A small por-
tion of the Mine RufitDam Reservoir extends onto prop-
erty owned by a defunct mining company.
The facility was designed to capture contaminated
surface water flowing through the site, and to contain
and evaporate the water through a ponding and recir-
culation system, preventing the contamination from
reaching the reservoir and river below. Each of the two
drainages once occupied by Hinkley Run and Mine Run
creeks, which formerly flowed through the site, now con-
tains a cascade of three impoundments. Water contami-
nated with toxic pollutants runs off the mine site and
collects in the upper impoundments and then flows to the
lower impoundments, eventually collecting in the Mine
Run Dam Reservoir. A pump and pipe owned by the
Board recirculates polluted water from Mine Run Dam
Reservoir back into the upper impoundments located in
the former Mine Run Creek drainage basin. Defendants
operate that pump.
The facility also consists of two principal diversion
ditches that divert the surface flows of Hinkley Run and
Mine Run creeks around the abandoned mine site. Those
diversion ditches are intended to isolate the facility from
the unpolluted flows of these two creeks by diverting the
streams around the facility and directly into the
Mokelumne River and Camanche Reservoir, below.
As part of the facility’s ongoing operation, various
pipes, channels, and gullies carry polluted runoff from
the mine tailings and dikes into the Mine Run Dam
Reservoir and other facility impoundments. In addition,
A5
from time to time, water and drainage collected in the
Mine Run Dam Reservoir have passed over the spillway
or through the dam’s discharge valve into the
Mokelumne River and Camanche Reservoir.
The Clean Water Act (the “Act”), 33 U.S.C.
§§ 1251-1376, is intended to “restore and maintain the
chemical, physical, and biological integrity of the
> Nation’s waters.” 33 U.S.C. § 1251(a). In pursuit of this
= goal, the Act prohibits the “discharge of any pollutant”
into navigable waters from any “point source” without a
permit. See 33 U.S.C. § 1311(a) (except as otherwise pro-
vided in the Act, the discharge of any pollutant by any
person shall by [sic] unlawful); § 1342(a) (authorizes EPA
Administrator to permit some discharges of pollutants
under a National Pollutant Discharge Elimination System
(“NPDES”)); § 1362(12) (defines “discharge of a pollu-
tant” as “any addition of any pollutant to navigable
waters from any point source”).
The Committee to Save the Mokelumne River (the
“Committee”) initiated this suit against the District and
members of the Board under the citizen suit provisions of
the Act, 33 U.S.C. § 1365. The Committee seeks a judg-
ment declaring that defendants have discharged pollu-
tants from the Penn Mine facility without a permit, in
violation of the Clean Water Act, and enjoining defen-
dants from discharging pollutants from the facility until
they have obtained an NPDES permit to do so. The Com-
mittee also seeks an order requiring defendants to devise
a remedial plan to remove and dispose of contaminated
sediment in the reservoir.
A6é
Defendants moved to dismiss this action on a
number of procedural and substantive grounds. At the
same time, the Committee moved for summary judgment
on the issue of defendants’ liability under the Act. The
district court denied defendants’ motion and granted
judgment in favor of the Committee on the issue of
liability.
On appeal from the district court’s order of summary
judgment in favor of the Committee, defendants raise
four issues. They contend that the district court erred in
granting partial summary judgment in favor of the Com-
mittee because (1) Mine Run Dam is not subject to the
discharge permit requirements of the Clean Water Act; (2)
a material issue of fact exists as to whether defendants
have “discharged a pollutant” within the meaning of the
Act; (3) defendants’ activities in constructing and operat-
ing the facility are regulatory, and therefore cannot con-
stitute “additions of pollutants” under the Act; (4) the
Eleventh Amendment immunizes defendants from lia-
bility under the Clean Water Act. We address each of
these arguments in turn.
DISCUSSION
A. Is Mine Run Dam subject to the Clean Water Act’s permit
requirements?
To establish a violation of the Act’s NPDES require-
ments, a plaintiff must prove that defendants (1) dis-
charged, i.e., added (2) a pollutant (3) to navigable waters
(4) from (5) a point source. National Wildlife Federation v.
Gorsuch, 693 F.2d 156, 165 (D.C. Cir. 1982). Defendants
concede that acid mine drainage is a “pollutant,” that the
A7
Mokelumne River is among the covered “navigable
waters,” and that the spillway and valve of the Mine Run
Dam and Reservoir are “point sources”! from which pol-
luted water has entered the Mokelumne River. They con-
test only the issue whether they have “added” pollutants
to the Mokelumne.
Defendants argue that under well-established case
law, the Mine Run Dam is not subject to the Clean Water
Act’s permit requirements because it is a dam that “does
no more than impound navigable waters and impede
their flow in the Mokelumne River.” In support of this
contention, defendants rely on two decisions that held
that the specific dams at issue in those cases were not
subject to the discharge permit requirements because they
did not “discharge pollutants,” i.e., “ ‘add’ pollutants
from the outside world to” navigable water. See National
Wildlife Federation v. Consumers Power Co., 862 F.2d 580,
584 (6th Cir. 1988); Gorsuch, 693 F.2d at 174-75. These
cases are inapposite here because the Penn Mine facility
does “discharge pollutants” as that term is defined by the
Act and relevant regulations.
1 The court in Gorsuch noted that the pipes and spillways of
dams are “point sources” under the Act, and therefore subject to
the Act’s discharge permit requirements:
The pipes or spillways through which water flows
from the reservoir through the dam into the down-
stream river clearly fall within [the] definition [of a
“point source”], and the EPA has required NPDES
permits for the discharge of grease, oil, or trash
through the outlet works of a dam.
Gorsuch, 693 F.2d at 165 n.22.
ow
A8
In both Consumers Power Co. and Gorsuch, plaintiffs
sought to compel dam operators to comply with the
discharge permit requirements of the Clean Water Act. In
Gorsuch, plaintiffs argued that dam-induced water quality
changes caused by the impoundment and release of water
were a “discharge of pollutants” within the meaning of
the Act.? 693 F.2d at 161. Plaintiffs in Consumers Power Co.
argued that the destruction of aquatic life by a dam’s
turbines and the release downstream of the remains were
a “discharge of pollutants” within the meaning of Act. In
both cases, the court held that the dams at issue did not
“discharge a pollutant” because the dams did not add
pollutants “from the outside world.” Consumers Power
Co., 862 F.2d at 584; Gorsuch, 693 F.2d at 174-75. Neither
case categorically exempts all dams from the discharge
permit requirements of the Clean Water Act.
This case clearly is distinguishable from Gorsuch and
Consumers Power Co. because the Penn Mine facility does
not pass pollution from one body of navigable water into
another. Rather, the source of pollution added to the
Mokelumne River is “surface runoff that is collected or
channelled by” defendants from the abandoned mine site.
Such surface runoff is expressly listed under the defini-
tion of “discharge of a pollutant” contained in the regula-
tions. See 40 C.F.R. § 122.2 (“Discharge of a pollutant
means . . . additions of pollutants into waters of the
United States from: surface runoff which is collected or
channelled by man”).
* “Discharge of a pollutant” is defined as “any addition of
any pollutant to navigable waters from any point source.” 33
U.S.C. § 1362(12).
AY
In this case, defendants have admitted that acid mine
drainage from the abandoned mine site is channelled into
the Penn Mine facility and collects in the Mine Run Dam
Reservoir. District Answer JJ 18, 24; Board Answer
qq 18, 22. Defendants also admit that “water and drain-
age collected in Mine Run Dam Reservoir had, from time
to time, passed over the spillway or through the valve
into the Mokelumne River and Camanche Reservoir.”
District Answer J 21. See also Board Answer {§ 18, 21, 22.
These admissions, in turn, conclusively establish that
defendants “discharge a pollutant” from the Penn Mine
facility within the meaning of the Clean Water Act, mak-
ing them subject to the Act’s permit requirements.
B. Have defendants raised a genuine issue of material fact so
as to preclude summary judgment for the Committee?
Defendants also argue that a material issue of fact
exists as to whether there is an “addition of pollutants,”
making improper the district court’s grant of summary
judgment. Specifically, defendants rely on evidence that
the acidity of water flowing into the Mokelumne River
through the Penn Mine facility is not greater now than it
was before the dam was constructed. In effect, defendants
contend that they are liable under the Clean Water Act
only if the facility produces a net increase in the acidity of
the surface runoff compared to the acidity of the runoff
before the facility was constructed.
This argument misapprehends the focus of the Clean
Water Act. The Act does not impose liability only where a
point source discharge creates a net increase in the level
of pollution. Rather, the Act categorically prohibits any
Al0
discharge of a pollutant from a point source without a
permit. 33 U.S.C. §§ 1311(a), 1342(a); Consumers Power Co.,
862 F.2d at 582. Thus, the factual issue raised by defen-
dants concerning the historical level of pollution com-
pared to the current level of pollution is not material to
the resolution of the Committee’s claim, and therefore
does not preclude summary judgment on the issue of
liability.
Defendants have already admitted that acid mine
drainage is channelled into and collects in the Penn Mine
facility, and then is released over the Mine Run Dam’s
spillway or through its valve into the Camanche Reser-
voir and the Mokelumne River. Consequently, they have
admitted to each of the elements needed to establish
liability under the Clean Water Act. Defendants have (1)
discharged a pollutant (i.e., collected and channeled [sic]
surface runoff containing acid mine drainage into the
reservoir and then added the polluted runoff); (2) into
navigable waters (i.e., the Mokelumne); (3) from a point
source (i.e., the dam’s spillway and valve); (4) without a
discharge permit. See Gorsuch, 693 F.2d at 165. Because the
statute does not require the Committee to show that a
greater level of pollution enters the Mokelumne now than
was the case before the Penn Mine facility was con-
structed, the district court properly granted judgment in
the Committee’s favor on the issue of liability.
All
C. Are actions taken by regulatory authority to prevent or
reduce discharges subject to the Clean Water Act’s permit
requirements?
Defendants also argue that “the State cannot be held
liable [under the Clean Water Act] for the activities which
it has performed pursuant to its regulatory respon-
sibilities.” Although they concede that no case has so
held, they contend that analogous cases under the Com-
prehensive Environmental Response, Compensation and
Liability Act (“CERCLA”) do lend support to their argu-
ment.
As the district court pointed out, in the cases cited by
defendants, the absence of governmental liability under
CERCLA rests squarely on express statutory exemptions.
See Order at 34-35 & n.32 (citing 42 U.S.C. §§ 9607(a)(1) &
(2), and 42 U.S.C. § 9601). The Clean Water Act contains
no such exemption. Given the absence of any statutory
authority to exempt the Board or District from liability
under the Clean Water Act, the district court did not err
in finding that defendants are liable under the Act.
D. Does the Eleventh Amendment immunize the Water Board
from liability under the Clean Water Act?
The Water Board argues that “the District Court
could not consider the construction that took place prior
to the filing of the lawsuit because of Eleventh Amend-
ment considerations.” However, the Committee seeks
only prospective equitable relief, which is not barred by
the Eleventh Amendment. See Pennhurst State School &
Hosp. v. Halderman, 465 U.S. 85, 104-05, 104 S.Ct. 900, 910,
79 L.Ed.2d 67 (1984) (citing Ex Parte Young, 209 U.S. 123,
””
A12
155-56, 28 S.Ct. 441, 452, 52 L.Ed. 714 (1908)). Further-
more, none of the authorities cited by defendants prohibit
the district court from considering defendants’ past con-
duct as it relates to ongoing or future violations. Thus,
defendants’ Eleventh Amendment argument is without
merit.
CONCLUSION
We conclude that the district court properly granted
summary judgment in favor of the Committee on the
issue of defendants’ liability under the Clean Water Act.
AFFIRMED.
FERNANDEZ, Circuit Judge, concurring:
I concur, but write separately because my position
may be somewhat more narrowly based than the position
of the majority.
As I understand it, the pollutants in question used to
be carried into the Mokelumne River by Mine Run Creek
and Hinkley Run Creek. The water from those creeks, and
other water, ran across the tailings from the mines and
became polluted. The creeks then carried that water to
the river. The project has diverted those creeks so that
they will stay clean and has captured polluted runoff so
that it can be released in a more measured way. In other
words, it seems that unregulated quantities of pollutants
were flowing into the river and causing fish kills and the
like long before EBMUD and the Board did anything at
all. Those entities sought to eliminate the disasters caused
by that unregulated flow and that is why the project was
Al3
built. The result has been a significant improvement in
the river’s environment and a boon to aquatic life.
The majority appears to agree with appellee’s posi-
tion that the project is a point source in the sense that the
Environmental Protection Agency could not determine
that a NPDES permit was not required. I am not so sure.
It seems to me that, given the history of this project, the
EPA could properly have determined that this really is
much more like the dams it dealt with in National Wildlife
Fed’n v. Consumers Power Co., 862 F.2d 580 (6th Cir. 1988),
and National Wildlife Fed’n v. Gorsuch, 693 F.2d 156 (D.C.
Cir. 1982), than it is like the typical point source that truly
does add pollution to navigable waters. See 33 U.S.C.
§ 1362(12). If it had, we would have shown that deter-
mination great deference.! See Consumers Power, 862 F.2d
at 584-85. It did not. In fact, the information before the
district court and before us indicates that the EPA con-
siders the project to be a point source, which does require
a permit containing numerous onerous conditions.
Appellants earnestly argue that the EPA’s approach,
and that of the appellee’s, will not serve the long-term
purpose of bettering the aquatic environment. They indi-
cate that it takes no genius or epopt to see what the
message will be. Do nothing! Let someone else take on
the responsibility. Let the water degrade, let the fish die,
but protect your pocketbook from vast and unnecessary
expenditures. Do not try to bring some order out of
environmental chaos. In short, appellants suggest that no
' One could even consider whether primary jurisdiction
principles should be applied. See United States v. General
Dynamics Corp., 828 F.2d 1356, 1362-66 (9th Cir. 1987).
Al4
Odysseus or Daedalus crafted the policy which we are
now asked to follow. Perhaps they are correct; I suspect
they are.
Nevertheless, we are not policymakers. We must sim-
ply apply the law. The majority opinion demonstrates that
with great clarity
Therefore, I concur
A15
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
COMMITTEE TO SAVE THE
MOKELUMNE RIVER, a California
non-profit corporation, NO. CIV.
- -1
Plaintiff, 5-91-1372 LKK
ORDER
V.
EAST BAY MUNICIPAL UTILITY
DISTRICT, a California
municipal utility district,
and the REGIONAL WATER
QUALITY CONTROL BOARD-
CENTRAL VALLEY REGION, a
California state agency,
Defendants.
East Bay Municipal Utility District (“EBMUD”) and
members of California Regional Water Quality Control
Board (“RWQCB”) move to alter or amend this court’s
Order dated May 21, 1992, under Fed. R. Civ. P. 59(e). In
the alternative, the defendants move for reconsideration
of the Order pursuant to Local Rule 230(k).
Because the RWQCB was not given a full and fair
opportunity to be heard on numerous issues of law and
fact that affect the RWQCB’s rights and liabilities prior
to issuance of that Order, defendants’ motions for
Al6
reconsideration are GRANTED.! My Order dated May 21,
1992, is hereby vacated and amended as follows:
Plaintiff, the Committee to Save the Mokelumne
River (“Committee”), sues defendants EBMUD and mem-
bers of the RWQCB in their official Capacity under the
citizen suit provisions of the Clean Water Act. Plaintiff
contends that EBMUD and the RWQCB, alleged joint
Owners and operators of the Penn Mine facility, have
discharged certain toxic pollutants from the facility into
the Camanche Reservoir and Mokelumne River near
Campo Seco, California without the discharge permit
required by the Clean Water Act. Plaintiff seeks a judg-
ment declaring that defendants’ discharge of pollutants
from the facility without a permit violates the Act, and
enjoining defendants from discharging pollutants from
the facility until they have secured a permit under the
Act. It also seeks an order requiring defendants to devise
a remedial plan to remove and safely dispose of all con-
taminated sediment in Camanche Reservoir that was
caused in whole or in part by discharges from the facility
since its construction.
Before the court are the defendants’ motions to dis-
miss or in the alternative to abstain from hearing the case.
The court also has before it plaintiff’s motions for partial
' While motions to reconsider are subject to limitations
under the law of the case doctrine, see, e.g., Milgard Tempering,
Inc. v. Selas Corp. of America, 902 F.2d 703, 715 (9th Cir. 1990), that
body of law is a tool to be used by judges to “help manage their
own affairs” rather than by the parties against one another.
Lockert v. United States Dep't of Labor, 867 F.2d 513, 518 (9th Cir.
1989). Under the circumstances, law of the case does not act as a
barrier to the court reconsidering its own nonfinal order.
A17
summary judgment as to EBMUD and RWQCB’s liability
under the Act.
I.
FACTS AND BACKGROUND2
During the 1850’s and through the 1950’s, the Penn
Mine property near what is now Camanche Reservoir in
Calaveras County, California, was mined for copper and
zinc. The companies that mined the site left behind
exposed mine “tailings,” reactive waste rock and exca-
vated ores, which, when exposed to oxygen and water,
form “acid mine drainage” (“AMD”) containing high con-
centrations of aluminum, cadmium, copper, zinc, iron
and sulfuric acid. In about 1966, EBMUD acquired a
portion of the abandoned Penn Mine property in order to
build the Camanche Reservoir. EBMUD Answer { 14.
Prior to 1978, pollution entering the Camanche Reser-
voir and the Mokelumne River as runoff from the site had
resulted in several fish kills. In that year, EBMUD and
the RWQCB built the Penn Mine facility in an attempt to
reduce AMD and other polluted runoff. EBMUD Answer
at 3; RWQCB Answer {{ 16, 18 and 20. The facility
* Unless described as an allegation, in this section the court
recites the undisputed background facts concerning these
motions. Certain other disputed and undisputed facts are
adverted to in the course of disposition of the motions.
+ See California RWQCB, Central Valley Region, Res. No.
78-55, “Request to Abate Pollution from Penn Mine Property
and New Penn Mines, Inc., a Nonoperating Mine” (April 28,
1978) at 1. The court takes judicial notice of the Regional Board
Resolution and its contents. See Fed. R. Evid. 201.
Al8
consists of Mine Run Dam and the Mine Run Dam Reser-
voir surface impoundment, combined with a series of six
smaller impoundments, and various drainage ditches,
pipes, valves, culverts and channels. The facility was
designed to capture contaminated surface water flowing
through the site, and to contain and evaporate the water
through a ponding and recirculation system.4
The facility contains ditches which divert some of the
surface flows of Mine Run Creek and Hinkley Run Creek
away from the site’s enclosed recirculation impoundment
system. EBMUD Answer { 20; RWQCB Answer § 20;
Bond Report at 10; Rozaklis Decl., plaintiff's Ex. 3C in
supp. of SJ against EBMUD 5. The two creeks had
historically flowed through the exposed mine tailings and
waste rock on the site, increasing the flow of heavy metal
laden effluent into the Mokelumne River. Bond Report at
10. Although the design and maintenance of the diversion
berms and channels result in the seepage of some water
through the berms of the diversion ditches into the
4 See 1979 Memorandum of Understanding (“MOU”),
plaintiff’s Ex. 1 in support of motion for SJ against the RWQCB,
at 1; see also Penn Mine Toxic Pits Cleanup Act Technical Investi-
gation Report, Groundwater Protection and Investigation Sec-
tion of the Central Valley RWQCB (Nov. 3, 1988), Steven R. Bond
(“Bond Report”); Vaughn Aff. in support of RWQCB’s opp’n to
SJ TUT 5, 10.
While the RWQCB admits that the Bond Report contains
“certain statements [that] are factually correct,” it asserts that
the Bond Report was never reviewed or approved by the Board,
and thus denies that the report is a statement of fact attributable
to the State of California. RWQCB opp’n to motion for SJ at 5.
Al19
impoundments, the principal surface flows of those
creeks now flow around, rather than into, the facility.°
Each of the two drainages formerly occupied by
Hinkley Run and Mine Run Creeks now contain a cascade
of three evaporative ponds or impoundments which con-
verge into Mine Run Dam Reservoir. Water flows into the
facility from the surrounding mine site, and collects in
the upper impoundments. Bond Report at 10, 11, fig. 3.
They then flow to the lower impoundments, eventually
collecting in the Mine Run Dam Reservoir. Id. The con-
taminated water is then recirculated from Mine Run Dam
Reservoir through a pump and pipe system operated by
EBMUD and located on EBMUD property, back into the
upper impoundments. Id.; EBMUD Answer { 19. When
the upper impoundments reach full capacity, the water
flows back down to the lower impoundments, and so the
cycle continues. Bond Report at 10.
Although Mine Run Dam itself is not constructed of
materials that react with the acidic waters impounded by
the Dam, reactive mine tailings, waste rock, ore and
nonreactive materials from the site were used to construct
the dikes and sidewalls of the water impoundments at the
facility.° Plaintiff alleges that because the impoundments
> Rozaklis Decl. { 5 in supp. of SJ against EBMUD; Howard
Aff. in supp. of RWQCB’s opp’n to SJ {{ 5-10; Rozaklis Decl. in
supp. of SJ against RWQCB { 3.
6 Maest Aff., plaintiff’s Ex. 3 in supp. of SJ against EBMUD
7 5; EBMUD Answer { 25; Howard Aff. in supp. of RWQCB’s
opp’n to SJ GY 22; August 1992 Site Characterization Report
prepared for the California RWQCB by Davy Environmental
(“Davy Report”), Kennedy Aff., Ex. 1 in supp. of SJ against
RWOQCEB, drawing 021-103, at 2-4, 2-6, 2-26.
A20
located on the EBMUD property and the surrounding
area are constructed with exposed reactive materials, the
waters coming in contact with the impoundments become
contaminated.
Although the facility’s impoundment and recircula-
tion system was intended to function as evaporative
holding ponds, MOU at 1-2, the plaintiff contends that
the impoundments operate as reactive pools which fur-
ther concentrate the heavy metals and facilitate the for-
mation of AMD. Maest Aff. {] 5-7; Bond Report at 1, 33.
EBMUD and the RWQCB deny that the impoundment of
waters by Mine Run Dam has itself contributed to the
creation of AMD at the Penn Mine site. Nawrocki Aff. in
supp. of EBMUD’s opp’n to SJ 4 30-33; Sullivan Aff. in
supp. of RWQCB’s opp’n to SJ {¥ 3, 9; RWQCB Answer
{ 25. They also deny that the Dam has caused any
increase in the acidity or metal concentrations in the
waters actually reaching the Mokelumne River and Cam-
anche Reservoir since the Dam was constructed.
Nawrocki Aff. J] 21-29.
Both the Mine Run Dam and most of the Mine Run
Dam Reservoir are located on property owned by
EBMUD. EBMUD Answer ] 17. The RWOCB owns the
pump and pipe system, RWQCB Answer § 19, Lee Aff. in
supp. of RWQCB’s opp’n to SJ ¥ 4, and pays for the
electricity which runs the pumps. Lee Aff. | 4.
Between 1976 and 1986, an average of over 19 million
gallons per year of water containing toxic pollutants was
discharged from the facility into the Mokelumne River
and the Camanche Reservoir. EBMUD Answer ¥ 26;
RWQCB Answer {] 1, 26. The Mine Run Dam Reservoir
A21
released contaminated waters through a controlled dis-
charged valve with hand crank controls located on the
Mine Run Dam and through the spillway adjacent to
Mine Run Dam into the Camanche Reservoir and the
Mokelumne River. EBMUD Answer {{ 21, 22; RWQCB
Answer { 21. Until the recent heavy rains, there have
been no releases over or through the Mine Run Dam since
May 1986. Second Bishop Aff. { 11; RWQCB Answer 21.
The Mokelumne River and Camanche Reservoir are
navigable waters of the United States. EBMUD Answer
{ 38; RWOCB Answer ¥ 39. The Mine Run Dam Reservoir
contains pollutants. EBMUD Answer {{ 21, 24; RWQCB
Answer {¥ 18, 25. Some AMD from the New Penn Mine
site flows into Hinkley Run and Mine Run Creeks and
then into Mine Run Dam Reservoir. EBMUD Answer
{ 22; RWQCB Answer J 22. Neither defendant has ever
applied for, nor possesses, a National Pollution Discharge
Elimination System permit for their release of waters
from Mine Run Dam Reservoir to the Camanche Reser-
voir and the Mokelumne River. EBMUD Answer { 1;
RWOCB Answer { 43.
II
DEFENDANTS’ MOTIONS TO DISMISS
The defendants have moved to dismiss on the var-
ious grounds discussed in detail below. The standards to
be applied on a motion to dismiss are well-known and
need not be repeated here. Johnson v. City of Chico, 725 F.
supp. 1097 (E.D. Cal. 1989). I begin with a background
discussion of the Clean Water Act, and then turn to
analysis of defendants’ various arguments.
A22
A. The Clean Water Act
The Clean Water Act, 33 U.S.C. §§ 1251-1376, is
intended to “restore and maintain the chemical, physical,
and biological integrity of the Nation’s waters.” Id.
§ 125l(a). The Act seeks to achieve this objective by
prohibiting, except under specified conditions, all dis-
charges of pollutants from identifiable sources into the
waters of the United States. Id. § 1342. As a means of
achieving and enforcing effluent limitations, the Act
establishes a comprehensive scheme for federal regula-
tion of water pollution known as the National Pollution
Discharge Elimination System (“NPDES”). Id. Under the
NPDES, it is unlawful to discharge pollutants without
obtaining and complying with a permit governing the
quantity and quality of discharges. Trustees for Alaska v.
EPA, 749 F.2d 549, 553 (9th Cir. 1984). The Act provides
that unless authorized pursuant to an NPDES permit, the
“discharge of any pollutant by any person shall be
unlawful.” 33 U.S.C. § 1311(a).
Although Congress, through the Act, addressed a
national problem, it sought to “ ‘recognize, preserve, and
protect the primary ponsibilities and rights of States,’
in the restoration and maintenance of their waters and in
the application of the Act.” Boise Cascade Corp. v. ULS.
EPA, 942 F.2d 1427, 1429 (9th Cir. 1991) (quoting 33 U.S.C.
§ 1251(b)). As permitted by the Act, the Administrator of
the EPA has delegated to the State of California the
authority to issue NPDES permits, subject to EPA objec-
tion. 33 U.S.C. § 1342(b),(d); Boise Cascade, 942 F.2d at
1430; Shell Oil Co. v. Train, 585 F.2d 408, 410 (9th Cir.
1978). The California State Water Resources Control
Board and its various Regional Water Quality Control
A23
Boards are responsible for enforcement of the Act in
California and for issuing NPDES permits. Boise Cascade,
942 F.2d at 1430. California’s plan for issuance of NPDES
permits is found at California Water Code §§ 13370-89.
Plaintiff alleges claims pursuant to the citizen suit
provision of the Clean Water Act, which provides:
(a)... any citizen may commence a civil
action on his own behalf --
(1) against any person (including (i) the
United States, and (ii) any other governmental
instrumentality or agency to the extent permit-
ted by the eleventh amendment to the Constitu-
tion) who is alleged to be in violation of (A) an
effluent standard or limitation” under this chap-
ter or (B) an order issued by the Administrator
or State with respect to such a standard or lim-
itation. .
7 “Effluent limitation” is defined as “any restriction estab-
lished by a State or the Administrator on quantities, rates, and
concentrations of chemical, physical, biological and other con-
stituents which are discharged from point sources into naviga-
ble waters. ...” 33 U.S.C. § 1362(11). Those effluent standards
and limitations enforceable by citizens are further defined in
section 1365(f) to include “an unlawful act under subsection (a)
of section 1311” which prohibits the discharge of any pollutant
into the water of the United States except in compliance with an
NPDES permit. 33 U.S.C. § 1311(a).
“Pollutant” includes chemical wastes, biological materials,
and industrial and municipal waste. 33 U.S.C. § 1362(6). “Toxic
pollutant” includes those pollutants or combination of pollu-
tants which, after discharge and upon direct or indirect expo-
sre cause death, disease, or behavioral or physiological
malfunctions in the organism or the offspring of the organism
exposed to the pollutant. 33 U.S.C. § 1362(13).
A24
The district courts shall have jurisdic-
tion . . . to enforce such an effluent standard or
limitation, or such an order. .
33 U.S.C. § 1365(a)(1).
B. Subject Matter Jurisdiction
Defendants assert that this court jacks subject matter
jurisdiction over plaintiff’s claim because the State and
Regional Water Boards have determined that no NPDES
permit is required for the Mine Run Dam and Reservoir.
According to defendants, plaintiff’s challenge to that
determination lies in state court. Defendants’ contention
must be rejected because both as a factual and legal
matter, it lacks merit. Below, I explain that defendants
have failed to demonstrate that the State or Regional
Boards have determined that a permit is not required for
the Mine Run Dam and Reservoir discharges. Moreover,
as I also explain, even if such a determination has been
made, it would not divest this court of jurisdiction over
plaintiff’s citizen suit under the Clean Water Act.
The relevant history of the State and Regional
Boards’ actions concerning Mine Run Dam and Reservoir
commences with two letters from William H. Crooks,
Executive Director of the Regional Board, responding to
requests by the California Sportfishing Protective Alli-
ance that the Board require an NPDES permit for the
Mine Run Dam and Reservoir. See Bishop Decl. in supp.
of EBMUD’s mot. to dismiss, Exs. 7-10. In the first letter,
dated April 4, 1989, Crooks writes,
A25
Simply putting a permit on the East Bay MUD
structure which releases these waters, when nec-
essary, will do little towards gaining a water
quality benefit. Therefore, we do not plan to
propose to permit the release of these toxic dis-
charges.
Id., Ex. 8.
In the second letter, dated November 1, 1989, Crooks
writes,
| do not agree with you that the East Bay MUD
should be required to obtain an NPDES permit.
My reasons were stated in my 4 April letter to
you. East Bay MUD is not responsible for the
pollution. The pollution comes from the runoff
from the nonoperating Penn Mine.
Id., Ex. 10.
On April 27, 1990, the Regional Board adopted Reso-
lution 90-128, entitled “Waiving Discharge Requirements
and to Exempt East Bay Municipal Utilities District, Mine
Run Dam Reservoir, Penn Mine, Calaveras County from
Requirements and Prohibitions of the Toxic Pits Cleanup
Act.” RWQCB’s memo in supp. of mot. to dismiss, Ex. 1.
Under that resolution and pursuant to California Water
Code § 132698 and California Health & Safety Code
* California Water Code § 13269 was adopted before the
State NPDES permit program and authorizes the Regional
Board to waive various state discharge requirements “as to a
specific discharge or a specific type of discharge where such
waiver is not against the public interest.” This waiver provision
does not appear in the section of the California Water Code
describing the State’s NPDES permit program. Cal. Water Code
§§ 13370-89.
A26
§ 25208.20,9 the Regional Board exempted Mine Run Dam
and Reservoir from the waste discharge requirements of
the Toxic Pits Cleanup Act (“TPCA”), California Health &
Safety Code §§ 25208-08.21. Nothing in the resolution
demonstrates that the Regional Board addressed the
question of whether the Mine Run Dam and Reservoir
was exempt from NPDES permit requirements.
On May 25, 1990, plaintiff and the California Sport-
fishing Protection Alliance filed a petition with the State
Board seeking review of Resolution 90-128. See plaintiff's
opp’n to EBMUD’s mot. to dismiss, Ex. 1 at 1. Crooks
wrote to counsel for the State Board, asserting “it is the
position of both the State Water Resources Control Board,
and the Regional Board, that the discharges from the
Penn Mine are not point source discharges, and are there-
fore not subject to NPDES permits.” Bishop Decl., Ex. 11.
In Order No. WQ 91-14, adopted December 12, 1991,
the State Board noted that petitioners’ first contention is
that Mine Run Dam and Reservoir is not entitled to an
exemption from TPCA, id. at 7,19 and that petitioners’
9 Section 25208.20 authorizes the Regional Board to grant
an exemption from the discharge permit requirements of the
TPCA if the surface impoundment meets certain requirements.
10 On January 6, 1992, plaintiff and the California Sportfish-
ing Protection Alliance filed a petition for writ of mandamus in
Sacramento County Superior Court pursuant to California
Water Code § 13330 and California Civil Procedure Code
§ 1094.5, challenging the State Board’s decision to uphold the
Regional Board’s exemption of Mine Run Dam and Reservoir
from the TPCA. See RWQCB’s memo in supp. of mot. to dismiss,
Ex. 4. Plaintiff in that action alleged that the exemption decision
is in violation of the TPCA, the Porter-Cologne Water Pollution
Control Act, and the Federal Water Pollution Control Act.
A27
second contention is that Mine Run Dam and Reservoir
should be subject to an NPDES permit. Id. at 36. In
addressing the second contention, the Board noted that in
September 1990, the EPA had listed Mine Run Dam and
Reservoir as a point source under the Clean Water Act
§ 304(1)(1)(C), 33 U.S.C. § 1314, and that EBMUD and the
State Board had asked EPA to reconsider its action. Id.
The State Board concluded that “[b]ecause negotiations
are pending with another administrative agency, it would
not be appropriate for this Board to rule on this issue at
this time.” Id. at 36-37. The Board also specifically noted,
Petitioners have filed suit in federal court
against EBMUD and the Regional Board regard-
ing this same issue. (Committee to Save the
Mokelumne River v. East Bay Municipal Utility
District and Regional Water Quality Control Board-
Central Valley Region, U.S. District Court Easter
[sic] district of California, CI1V-S-91-1372 LKK
PAN, filed October 4, 1991). This court action is
another reason why a State Board determination
on this issue is not appropriate.
Id. at 37. The Board then “dismissed” petitioners’ conten-
tion.
This record simply fails to establish that the State or
Regional Boards have determined that Mine Run Dam
and Reservoir is exempt from the NPDES permit require-
ment. As plaintiff points out, the Crooks’ letters and his
memo to the State Board do not reflect any decision by
the Regional Board itself,!! and the Regional Board did
11 Under the California Water Code, the Regional Board is
comprised of nine members. Although the Board may delegate
P 8 y u
A28
not address the NPDES permit question in Resolution No.
90-128. In turn, the State Board specifically declined to
take any position on the question of whether Mine Run
Dam and Reservoir should be subject to an NPDES per-
mit.
Moreover, even if the State or Regional Board had
determined that the Mine Run Dam and Reservoir was
exempt from the NPDES permit requirement, that deci-
sion would not divest this court of subject matter jurisdic-
tion over plaintiff's citizen suit. It is, of course, true that if
the Board had issued a discharge permit for Mine Run
Dam and Reservoir, a substantive challenge to the condi-
tions of the permit would lie in state, not federal, court.'2
In the matter at bar, however, no such permit has been
issued. Moreover, had either Board provided an exemp-
tion it would have exceeded its authoritv. Neither the
EPA nor the State is given authority under the Act to
exempt from the NPDES permit program any point
duties to is executive officer, that delegation may not encompass
applications for judicial enforcement, the promulgation of any
regulation, or the issuance or modification of waste discharge
requirements. Cal. Water Code § 13223(a). There is nothing in
the Code to suggest that the executive director unilaterally may
exempt an entity from the NPDES permit requirement; indeed,
there is nothing in the Code to suggest that the Board itself has
the authority to grant such an exemption.
12 State, not federal, courts have jurisdiction to consider
challenges to the substantive adequacy of NPDES permits
issued to dischargers by state agencies. See District of Columbia v.
Schramm, 631 F.2d 854, 862 (D.C. Cir. 1980); Natural Resources
Defense Council, Inc. v. Outboard Marine Corp., 702 F. Supp. 690,
694 (N.D. Ill. 1988); and Chesapeake Bay Found., Inc. v. Virginia
State Water Control Bd., 495 F. Supp. 1229, 1234 (E.D. Va. 1980).
Se eS See ae
aS Se oe ae
A29
source that discharges or may discharge pollutants. See 33
U.S.C. § 1311(a); Cal. Water Code § 13377; see also Carr v.
Alta Verde Industries, Inc., 931 F.2d 1055, 1060 (5th Cir.
1991) (EPA has no discretion under the Act to exempt
classes of point sources from the permit requirement);
Natural Resources Defense Council, Inc. v. Costle, 568 F.2d
1369, 1377 (D.C. Cir. 1977) (same); Hudson River Fisher-
men’s Ass'n v. City of New York, 751 F. Supp. 1088, 1099
(S.D.N.Y. 1990), aff'd, 940 F.2d 649 (2d Cir. 1991) (New
York Department of Environmental Conservation lacks
power to grant de facto exemption from permit pro-
cedures of the Clean Water Act).!3
Accordingly, defendants’ subject matter jurisdiction
argument is without merit and must be rejected.
C. Deference to EPA’s Primary Jurisdiction’
Defendants assert that the court should defer to
EPA’s “primary jurisdiction” and dismiss or stay this
action because of the pending EPA administrative pro-
ceeding concerning whether Mine Run Dam and Reser-
voir includes point sources subject to the NPDES
'S An action challenging an ultra vires act under the Clean
Water Act would arise under federal law, and thus this court
would have jurisdiction over such a suit pursuant to 28 U.S.C.
§ 1331.
'4 In their motion filed December 11, 1991, defendants
urged abstention pending the State Board’s consideration of
plaintiff’s petition for review of the Regional Board’s Resolution
No. 90-128. That request is now moot because the State Board
issued its decision on or about December 12, 1991.
are
= tat pans egrnaenanndeais
A30
permitting process.'5 As I explain below, both precedent
and the EPA’s views counsel against staying these pro-
ceedings.
1. Status of the Administrative Proceeding
EPA Region IX has initiated an administrative pro-
cess to implement section 304(1) of the Clean Water Act
with respect to surface waters in California, 33 U.S.C.
§ 1314(1), because it disapproved both the State’s failure
to include the Mokelumne River on its impaired waters
list and its failure to include the Mine Run Dam and
Reservoir on the State’s point source list.16 On September
15 Following the hearing on these motions, the court asked
EPA to specify the issues and the status of the pending adminis-
trative proceeding. I also invited EPA to submit an amicus cur-
iae brief providing its views on whether the court should defer
to EPA’s primary jurisdiction and stay or dismiss this action
pending completion of the NPDES permitting process. The EPA
has filed a letter brief and the parties were given the oppor-
tunity to file responsive briefs.
16 Section 304(1) requires the State to include on the “short
list” waters which, after application of technology-based efflu-
ent limits, cannot reasonably be anticipated to maintain numeric
or narrative water quality standards for the toxic pollutants
listed under § 1317(a) of the Act due entirely or substantially to
discharges from point sources. 33 U.S.C. § 1314(1)(1)(B). The
State is also obligated to submit a “source list” which includes
point sources which are discharging § 1317(a) pollutant(s) into
the waters listed on the short list. Id. at § 1314(1)(1)(C). This
source list must also include the amount of pollutant which the
point source is discharging into the water. Id. The State is
required to develop and submit an individual control strategy
(“ICS”) for each point source on the source list. Id.
§ 1314(1)(1)(D).
A31
28, 1990, EPA Region IX, pursuant to 40 C.FR. Pt.
123.46(f), assumed permitting authority for the facility,
reflecting its “preliminary determination that point
sources at the Dam and Reservoir require an individual
control strategy [ICS] under Section 304(1) to control
those toxic pollutants.” EPA letter brief at 2 (filed April 6,
1992). In its September 28, 1990 decision, EPA announced
that it would issue an ICS by March 31, 1991, and that the
permit would require compliance with effluent limits,
“based on State water quality standards, for copper and
zinc as soon as possible but not later than three years
from the date on which the discharger has actual or
constructive notice of the individual control strategy, e.g.,
a draft permit is sent to the discharger.” Plaintiff’s Ex. 5
in supp. of SJ against EBMUD at 18. An ICS could be in
the form of an NPDES permit. EPA letter brief at 2 (citing
40 C.F.R. § 123.46(c)).}7
In its September 1990 listing decision and the accom-
panying response to comments from EBMUD, EPA articu-
lated its basis for characterizing the discharge points at
the Mine Run Dam and Reservoir as point sources within
the meaning of the Act. Plaintiff’s Ex. 6 in supp. of SJ
against EBMUD at 4. On December 12, 1990, EBMUD
filed a petition for reconsideration of EPA’s decision that
EBMUD has the duty to apply for an NPDES permit. See
EBMUD’s Ex. 14 in opp’n to SJ. In addition, the State
Board advised EPA by letter dated May 1, 1991, that it did
17 Section 123.46(c) requires that an ICS be in the form of a
draft or final NPDES permit without supporting documentation
showing that the effluent limits are sufficient to meet the appli-
cable water quality standards.
A32
not consider Mine Run Dam and Reservoir to be a point
source within the meaning of the Act. Id. Ex. 12. Because
EPA has not yet ruled on EBMUD’s application for recon-
sideration, EPA “has not yet made a final ruling that the
discharge points at the Dam and Reservoir are point
sources subject to the [Act], which will occur if and when
EPA promulgates an ICS for EBMUD.” EPA letter brief at
2. EPA advises that it “is continuing to move forward to
develop an ICS for EBMUD.” Id.
EPA “has met on several occasions with EBMUD, the
State.Board and the Committee regarding the appropriate
controls for the discharge points at the Dam and Reser-
voir,” and EPA has provided the parties with drafts of an
EPA Administrative Order (“AO”) on consent. Id. EPA
“contemplates at this time that the draft AO would, if
issued, represent the ICS for those point sources at the
Dam and Reservoir under Section 304(1) and would con-
tain EPA’s response to EBMUD’s Petition.” Id. (footnote
omitted). EPA does not believe that the issuance of an
ICS, or a decision that no ICS is necessary because there
are no point sources at the Dam and Reservoir, is immi-
nent. Id. at 3.
2. The Doctrine of Primary Jurisdiction
Primary jurisdiction is a “flexible concept concerned
with promoting proper relationships between the courts
and administrative agencies” and it is premised on the
“desire for uniformity of regulation and the need for
initial consideration by a body possessing special exper-
tise in the issue presented.” Board of Education of City
School Dist. of City of New York v. Harris, 622 F.2d 599, 606
A33
(2d Cir. 1979), cert. denied, 449 U.S. 1124 (1981) (citations
omitted). As the Supreme Court has explained,
“Primary jurisdiction” . . . comes into play
whenever enforcement of the claim requires the
resolution of issues which, under a regulatory
scheme, have been placed within the special
competence of an administrative body; in such a
case the judicial process is suspended pending
referral of such issues to the administrative
body for its views.
United States v. Western Pac. R.R. Co., 352 U.S. 59, 63-64
(1956) (citations omitted).
EPA’s position is that the pendency of the section
304(1) proceeding does not divest this court of jurisdiction
to adjudicate the Committee’s citizen suit under the
Clean Water Act. EPA letter brief at 3. It concludes that
the court has jurisdiction to “make the threshold deter-
mination whether the discharge points at the Dam and
Reservoir are point sources subject to CWA regulation.”
Id. EPA also opines that a stay or dismissal of this case as
a prudential matter under the doctrine of primary juris-
diction is not appropriate, because deference would delay
adjudication of issues raised in the Committee’s citizen
suit that would not be addressed by EPA in the second
304(1) administrative process. As an example, the EPA
notes that the Committee seeks a remedial plan to remove
and dispose of contaminated sediments in the Camanche
Reservoir, relief that EPA says an ICS issued by EPA is
unlikely to provide. Id.
In addition to EPA’s views, I also note that precedent
weighs heavily against the defendants’ position. Every
A34
district court presented with a primary jurisdiction argu-
ment in a case involving a Clean Water Act (“CWA”)
citizen suit have rejected the suggestion that they defer to
either state or federal regulatory agencies. See, e.g.,
National Wildlife Fed’n v. Consumers Power Co., 657 F. Supp.
989, 995 (W.D. Mich. 1987), rev’d on other grounds, 862 F.2d
580 (6th Cir. 1988) (while district court was “tempted to
invoke the primary jurisdiction doctrine,” it was unable
to defer to the EPA, FERC or the state agency noting that
“[w]hether the CWA covers the discharge at issue in this
case is a question of statutory interpretation that does not
necessarily fall within the special competence of these
agencies”); O'Leary v. Moyer’s Landfill, Inc., 523 F. Supp.
642, 647 (E.D. Pa. 1981); Student Public Interest Research
Group of New Jersey, Inc. v. Fritzsche, Dodge & Olcott, Inc.,
579 F. Supp. 1528, 1537 (D.N.J. 1984), aff'd, 759 F.2d 1131
(3d Cir. 1985) (declining to stay case pending EPA's con-
sideration of defendant’s permit renewal application). See
also Natural Resources Defense Council, Inc. v. Outboard
Marine Corp., 692 F. Supp. 801, 809-10 (N.D. Ill. 1988)
(declining to stay case pending defendant’s appeal before
state agency of terms of permit and denial of modifica-
tion to earlier permit); Connecticut Fund for the Env’t v. Job
Plating Co., Inc., 623 F. Supp. 207, 214-15 (D. Conn. 1985)
(same); Student Public Interest Research Group of New Jersey,
Inc. v. Monsanto Co., 600 F. Supp. 1479, 1483-84 (D. NJ.
1985) (declining to stay case pending EPA’s consideration
of defendant's request for retroactive modification of per-
mit; issue under consideration by EPA for 7 years).
Defendants rely primarily upon Montgomery Envtl.
Coalition Citizens Coordinating Comm. on Friendship Heights
v. Washington Suburban Sanitary Comm'n, 607 F.2d 378, 379
OE TS EAE S Ss AE BIN CORR. Stal VR 8 a
A35
(D.C. Cir. 1979), to support their primary jurisdiction
argument. That reliance is misplaced. In Montgomery, the
EPA proceeding concerned the contents of an NPDES
permit, “an issue that clearly implicates the special exper-
tise and competence of the EPA -- and not whether a
permit should be issued in the first place.” Consumers
Power, 657 F. Supp. at 1001; see also Connecticut Fund, 623
F. Supp. at 215 (distinguishing Montgomery on ground
that permit in that case had not yet been issued; in case
before court, permit had been issued and plaintiffs
sought only its enforcement). Here, plaintiff asks the
court to determine whether defendants are obligated to
obtain a permit, i.e., whether defendants are discharging
poliutants from a point source in violation of the Act.
While the terms of an NPDES permit may be within the
special competence of EPA, Fritzsche, 579 F. Supp. at 1537,
whether the facility includes a point source through
which pollutants are discharged without a permit is an
issue within the competence of the courts. See Legal Envtl.
Assistance Found., Inc. v. Hodel, 586 F. Supp. 1163, 1169
(E.D. Tenn. 1984).
The Clean Water Act expressly provides this court
with jurisdiction over the issues presented in this citizen
suit, i.e., whether defendants are discharging pollutants
from a point source into navivable waters without a
permit. Deferring to the EPA proceeding on the basis of
primary jurisdiction in this case would undermine the
citizen suit provision of the Act as the primary enforce-
ment mechanism for water pollution regulation. See
Moyer’s Landfill, 523 F. Supp. at 647. As has been
observed, given Congress’ judgment, the “doctrine of
primary jurisdiction should be invoked sparingly where
A36
it would serve to preempt a citizen’s suit.” Fritzsche, 579
F. Supp. at 1537.
Under the circumstances, deference to EPA is inap-
propriate and the court declines to invoke the doctrine of
primary jurisdiction.
E. Failure to State a Claim
Defendants urge that plaintiff's complaint fails to
state a claim under the Clean Water Act because the State
has determined that defendants are not required to apply
for an NPDES permit for Mine Run Dam and Reservoir.
They argue that since no permit is required, there can be
no violation of the Act. This argument is a variation of
the assertion that only the state courts have jurisdiction
to consider plaintiff’s claim, and must be rejected for the
same reasons discussed above concerning subject matter
jurisdiction. See McClellan Ecological Seepage Situation
(MESS) v. Weinberger, 707 F. Supp. 1182, 1200 n.9 (E.D.
Cal. 1988) (plaintiff may maintain citizen suit where alle-
gation is that discharge of a pollutant is occurring with-
out an NPDES permit).
The defendants also assert that the complaint fails to
state a claim because plaintiff fails to allege the existence
of any ongoing violations of the Act, or a reasonable
likelihood of continuing violations of the Act. To invoke
jurisdiction under the Act, plaintiff is required to make a
good faith allegation of continuous or intermittent viola-
tions of the Act in its complaint. Gwaltney of Smithfield,
Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 57 (1987);
Atlantic States Legal Found., Inc. v. Tyson Foods, Inc., 897
A37
F.2d 1128, 1131 (11th Cir. 1990). The Committee’s com-
plaint includes the allegations necessary to state a claim.
See Complaint {J 26, 29, 30, 44.
For all the foregoing reasons, defendants’ motions to
dismiss plaintiff’s claims are DENIED.
Ill
PLAINTIFF’S MOTIONS FOR
PARTIAL SUMMARY JUDGMENT
Plaintiff moves for partial summary judgment seek-
ing to establish both defendants’ liability under the Clean
Water Act for the discharge of pollutants from the Mine
Run Dam and Reservoir into the Mokelumne River and
Camanche Reservoir.'8 To establish liability under the
Act, plaintiff bears the burden of showing that the defen-
dants are (1) discharging a pollutant (2) into navigable
waters (3) from a point source (4) without a permit. 33
U.S.C. § 1342.
Plaintiff asserts that the Penn Mine facility is a con-
tained treatment system which discharges pollutants to
navigable waters of the United States through point
sources when EBMUD and the RWQCB release effluent
from Mine Run Dam through the discharge valve or
spillway into the Mokelumne River in violation of 33
'S Plaintiff incorporates its arguments and supporting evi-
dence used in its motion for partial summary judgment against
EBMUD in support of its motion for partial summary judgment
against the RWQCB. Plaintiff's memo in support of SJ against
RWQCB at 3.
A38
U.S.C. § 1365(a)(1). I turn to an examination of the facts
and law pertinent to this claim.!9
There is no dispute that the Mokelumne River and
the reservoir are navigable waters of the United States.
Thus, if there are discharges into the river and reservoir
the second element of plaintiff's burden has been satis-
fied. Moreover, there is no dispute that neither EBMUD
nor the RWQCB possesses a license to discharge. Thus,
unless a license is otherwise excused, the fourth element
is satisfied. Defendants deny, however, that they are dis-
charging pollutants and that any discharge occurs from a
point source. Moreover, the RWQCB contends that the
statute’s licensing provisions do not apply to the
RWOQCB.
A. Defendants are Discharging a Pollutant
1. Pollutants
Although the Mine Run Dam itself is constructed of
nonreactive materials, there is no serious dispute that
pollutants are “added” to the leachate contained in the
Mine Run Dam Reservoir from an outside source through
the runoff from EBMUD’s property into the Reservoir.
EBMUD Answer ¥ 22 (“Admits that some acid mine
drainage from the New Penn Mines site apparently flows
into Hinkley Run and Mine Run creeks and then into
19 Like the standards under Fed. R. Civ. P. 12(b)(6), those
governing disposition of motions under Fed. R. Civ. P. 56 are
equally well established, see, e.g., Mid Valley Bank v. North Valley
Bank, 764 F. Supp. 1377, 1380-81 (E.D. Cal. 1991), and no useful
purpose would be served by reiterating them here.
A39
Mine Run Dam Reservoir”); see also RWQCB Answer
11 18, 22; Davy Report at 2-88, 3-3; Jennings supp. decl.,
in supp. of SJ against EBMUD 1 3, 4 (precipitation and
runoff hit EBMUD property and drain through numerous
fissures, ditches and erosion channels down the banks of
Mine Run Dam Reservoir); Sullivan Aff. in supp. of
RWQCB’s opp’n to SJ {7 8, 11 (acknowledges that “sub-
stantial quantities of already reacted materials [are] avail-
able at the other site locations for transportation down
the creek drainages. . . . It can be concluded that AMD/
ARD has formed primarily in the waste rock piles and
has or will be transported into the Mine Run Creek and
Hinkley Creek drainages via rainwater runoff and shal-
low ground water.” )?°
20 Plaintiff presents ample evidence that pollutants are also
“added” to the leachate contained in the Mine Run Dam Reser-
voir from the facility’s circulation and pooling system. Maest
supp. decl., Plaintiff’s Ex. 4 in reply in supp. of SJ against
EBMUD; Jennings supp. decl., plaintiff’s Ex. 3 in supp. of SJ
against EBMUD f 3, 4. Maest supp. decl. { 3; see also ¥ 6, 13,
19 (Because the banks and sides of the reservoir are constructed
of reactive waste rock materials from the mine site, the precipi-
tation and runoff flowing over those reactive materials forms
acid mine drainage). Nonetheless, I cannot say that there is no
disputed issue of fact relative to this question as to the RWQCB.
See, e.g., Pinkos Aff. {J 12, 18 (questions data and conclusions of
Bond Report); Howard Aff. J 21; Sullivan Aff. 7 5 (“the
impoundment of water containing acid mind drainage (AMD)
or acid rock drainage (ARD) . . . does not currently enhance the
production of AMD/ARD”). While this material often appears
to be self-contradictory and when read closely often appears to
support plaintiff’s contentions, I cannot resolve this dispute
under the standards applicable to motions made pursuant to
Fed. R. Civ. P. 56. My inability to resolve this factual issue,
however, does not preclude summary judgment given the
undisputed facts cited in the text.
ca i aii
A40
2. Lack of Ownership
Defendants contend that they do not own and are not
responsible for the construction, operation or mainte-
nance of any structure at the Penn Mine site other than
the Mine Run Dam and pump. The RWQCB also argues
that its obligation to obtain an NPDES permit is condi-
tioned upon the RWQCB being an owner or operator of
the impoundments and diversion structures at the Penn
Mine facility.2! The RWQCB argues that it cannot be held
liable for Penn Mine discharges when it merely “installed
a pipe.” RWQCB opp’n to plaintiff’s motion for SJ at 25
(citing Friends of Sakonnet v. Dutra, 738 F. Supp. 623,
632-33 (D.R.I. 1990)). These arguments are without merit.
The Clean Water Act provides that absent a permit,
“the discharge of any pollutant by any person?2 shall be
*! The RWQCEB cites the Gorsuch court's analysis of Appala-
chian Power Co. v. Train, 545 F.2d 1351, 1377 (4th Cir. 1976), to
support its position that EPA cannot order a polluter to remove
pre-existing pollution for which that polluter had no respon-
sibility. RWQCB opp’n to SJ at 7, n.8, citing National Wildlife
Fed'n v. Gorsuch, 693 F.2d 156, 174-75 n.57 (D.C. Cir. 1982).
Appalachian Power is inapposite to the facts in this case because
Appalachian Power dealt with nonpoint sources of pollution.
Appalachian Power Co., 545 F.2d at 1373. In contrast, as I explain
infra, the Penn Mine facility is a point source subject to regula-
tion under the Clean Water Act.
2 The statute defines “person” to include states, 33 U.S.C.
§ 1362(5), and the regulations provide that “person” for the
purpose of discharging a pollutant without an NPDES permits
[sic] includes “an individual, association, partnership, corpora-
tion, municipality, State or Federal agency, or an agent or
employee thereof.” 40 C.F.R. § 122.2. The RWQCB members as
State of California employees, RWQCB Answer {{ 1, 10, fall
within these definitions of “persons.”
Phd Sane plots Ni Nea Hh elle
A4l
unlawful.” 33 U.S.C. § 1311(a). The Act makes such “per-
sons” strictly liable for their unlawful discharge of pollu-
tants into navigable waters. United States v. Earth Sciences,
Inc., 599 F.2d 368, 374 (10th Cir. 1979); Proffitt v. Municipal
Auth. of Borough of Morrisville, 716 F. Supp. 845, 853 (E.D.
Pa. 1989), aff'd, 897 F.2d 523 (3d Cir. 1990); American
Petroleum Inst. v. EPA, 661 F.2d 340, 343 (5th Cir. 1981).
Put another way, there is no need to prove a discharge
was intentional, knowing or negligent under the Clean
Water Act. Earth Sciences, 599 F.2d at 374; Sierra Club v.
Abston Constr. Co., Inc., 620 F.2d 41, 45-46 (5th Cir. 1980).
Moreover, ownership is not a prerequisite to lia-
bility.23 33 U.S.C. §§ 1342, 1362(14); 40 C.R.R. 122.2(b);
Dague v. City of Burlington, 935 F.2d 1343, 1355 (2d Cir.
1991) (the fact that defendant discharges pollutants
through conveyance owned by another party is irrele-
vant); Earth Sciences, 599 F.2d at 374 (defendant liable for
the discharge of pollutants into navigable waters without
a permit). As EPA notes:
NPDES permits routinely regulate point sour-
ces . . . which discharge pollutants originally
generated on property owned by persons other
than the permit holder. See 40 C.F.R. 133, regard-
ing publicly owned treatment works; and 40
C.F.R. 122.26 regarding storm water discharges.
*3 The Clean Water Act does not define “owner” or “opera-
tor” in the context of the NPDES peri.it requirements and who
may be liable as a discharger. Cf. 33 U.S.C. § 1316 (definition of
“owner” and “operator” in the context of “National standards
of performance”).
A42
EPA Response to Comments, Ex. 6 to plaintiff’s motion to
SJ] against EBMUD at 4-5.
Because ownership is not a prerequisite to liability
which is imposed without fault, the fact that leachate or
acid mine drainage may originate above the Penn Mine
facility and then flow into the Mine Run Dam and Reser-
voir through the impoundment and circulation system
does not relieve EBMUD or the RWQCB of liability for
their subsequent discharges. 33 U.S.C. § 1362(14) (“dis-
charge of a pollutant” includes “additions of pollutants
into waters of the United States from: surface runoff
which is collected or channeled [sic] by man”); 40 C.FR.
122.2(a) & (b) (“discharge @® a pollutant” includes “dis-
charges through pipes, sewers, or other conveyances
owned by a State”); Abston, 620 F.2d at 44-45; Earth Sci-
ences, 599 F.2d at 374; Moyer’s Landfill, 523 F. Supp. at 655.
Under the standards articulated above, all that is
required to establish liability is proof that the discharge
occurred and that a given defendant was a legal cause of
the discharge. The causation requirement can be met
because of a defendant’s “control over discharges,”
Friends of Sakonnet, 738 F. Supp. at 629; because of a
defendant's actions as an operator, Moyer’s Landfill, 523 F.
Supp. at 655; because of a defendant’s responsibility for
discharges, Earth Sciences, 599 F.2d at 374; or because of a
defendant’s actions intended to “change the surface, to
direct the waterflow or otherwise impede its progress,”
Abston, 620 F.2d at 45. Here, the RWQCB’s “control,”
“authority,” and “affirmative actions” over discharges at
the Penn Mine facility provide a sufficient nexus between
the RWQCB and discharges at the facility to support a
Cane eet set ap Pant
A43
finding that the RWQCB is liable under the Clean Water
Act.
It is clear that the RWQCB jointly constructed the
facility with EBMUD in 1978. EBMUD Answer at 3;
RWOCB Answer 7 16, 18, 20; Davy Report at 1. This
construction work was undertaken pursuant to the March
29, 1978 Resolution No. 78-55, which describes the con-
struction of the Penn Mine Facility as a “joint undertak-
ing between the Board and EBMUD”. Resolution No.
78-55, Ex. 2 to plaintiff’s motion for SJ J 7. Moreover, the
RWQCB purchased the pump and pipe that recirculate
water from the Mine Run Dam Reservoir into impound-
ments located upstream from the Mine Run Dam Reser-
voir on Mine Run Creek. RWQCB Answer J 19. Nor did
the RWQCB’s activities end with construction. It pays for
the pump’s repair and replacement and pays for the
electricity to operate the pump. Lee Aff. in supp. of
RWQCB’s opp’n to SJ ¥ 4. This pump and pipe recircula-
tion system is a key component of the Penn Mine facil-
ity.24 Moreover, the RWQCB periodically applies for and
is granted land use permits for the continued housing
and operation of the pump on EBMUD property.?5 These
facts demonstrate the RWQCB’s intimate relationship
with, and control over, the facility and its discharges.
*4 Linville Aff., in support of EBMUD’s opp’n to plaintiff's
motion for SJ {¥ 33, 34; Maest Aff., in support of plaintiff’s
motion for SJ at 4.
*° See October 10, 1991 letter from EBMUD to RWQCB and
attached document entitled “Limited Land Use Permit P-319”
attached as Ex. 2 to Helfrich Decl. in support of motion for SJ
against RWOQCB.
A44
Nor is this the only evidence that the RWQCB is a
discharger. The 1979 MOU?6 entered into between the
defendants provides that “[t]he quantity and timing of
planned releases will be subject to mutual agreement by
the parties to this Memorandum of Understanding.”
MOU at 2.27 The record shows that the RWQCEB has
26 The Norton affidavit explains the RWQCB’s policy of
using MOUs and Management Agency Agreements (“MAAs”)
to regulate public agencies who are dischargers instead of regu-
lating them by means of waste discharge permits. Norton Aff. at
9. Other examples of MOU’s [sic] offered by the RWQCB sug-
gest, however, that the RWQCB’s control over the discharge of
pollutants at the Penn Mine facility without an NPDES permit
is, in fact, unusual, if not unique. Cf. Aff. of Norton, in support
of the RWQCB’s opp’n to SJ and Exs. B, C and D. Even if the
Norton affidavit is accepted as true, the RWQCB cites no author-
ity that the RWQCB’s decision to enter into an MOU or MAA in
lieu of issuing an NPDES permit is permissible under the Clean
Water Act. Nor does the existence of an MOU or MAA insulate
the RWQCB from liability for its own violations of the Clean
Water Act. The Norton exhibits themselves show that MOUs
and MAAs are to be used to effectuate the requirements of state
law and the Clean Water Act, see, e.g., Norton Aff. Ex. B at 1 and
Ex. C at 1, not as a means to circumvent them. Finally, to the
extent that these facts are suggestive that the Board seeks immu-
nity because it is a governmental agency regulating the dis-
charges, that matter is discussed at length in the text, infra.
2? The court need not determine whether the MOU is a
binding contract, as alleged by the plaintiff, or whether the
MOU is “merely a memorialization of regulatory roles,” as
alleged by the RWQCB. RWQCB opp’n to plaintiff’s motion for
SJ] at 37; Norton Aff. ¥ 16. Whatever its status, the MOU evi-
dences long-term control over discharge decisions by the
RWQCB. Moreover, the MOU is only one of many factors on
which the RWQCB’s liability at the Penn Mine facility is prem-
ised.
A45
initiated requests to discharge into the Camanche Reser-
voir,2® and has consulted in each controlled release. Lin-
ville Aff., in support of RWQCB’s opp’n to SJ {{ 31, 32.
The Board’s veto power of decisions concerning releases
is clear. Thus, on December 21, 1990, EBMUD directed a
letter to the RWQCB acknowledging that “[a]s in past
years, if either the Regional Board or DF&G do not agree
that an action is needed or appropriate [at the Penn Mine
facility], no action will be taken.” Helfrich Aff., Ex. E in
supp. of plaintiff’s mot. for SJ; see also Helfrich Aff., Ex. G
(memorandum from RWQCB Area Engineer, Ted Fenner,
to RWQCB Supervising Engineer, Jack Del Conte, describ-
ing MOU signatories’ agreement to conduct a controlled
discharge).
Finally, the RWQCB’s comparison of its actions with
the Friends of Sakonnet town’s limited role of making one-
time emergency repairs to and installing a discharge sew-
age outfall pipe cannot be credited. Friends of Sakonnet,
738 F. Supp. at 631. The MOU specifically notes that
The Board and District jointly undertook the
engineering work required for the works to
divert uncontaminated runoff around and away
from contaminated areas of the mine. The Board
undertook work required to construct the var-
ious works located above and on the mine site
28 In a March 6, 1980 memorandum from D.A. Wilson of
EBMUD to G.L. Laverty of EBMUD, Mr. Wilson notes that “Ted
Finner of the Regional Water Quality Control Board .. .
contacted Harry Rectenwald of Department of Fish and Game,
Region II, to request permission to make releases from Mine Run
Reservoir to Camanche Reservoir.” Helfrich Aff., Ex. F. in sup-
port of motion for SJ.
A46
to divert the uncontaminated runoff around and
away from the mine, including diversion chan-
nels, evaporation ponds, and related work.
MOU at 1. According to the MOU, by March 23, 1979, the
date the MOU was signed, the work “[had] been essen-
tially completed by the Board and the District.” Id.
3. Governmental Status of the RWOQCB
The RWQCEB also asserts that as an arm of the state it
is not liable for its past conduct under the Eleventh
Amendment to the Constitution of the United States and
that under the Act, it cannot be held liable for its regula-
tory conduct. I consider each claim below.
a. Eleventh Amendment
The RWQCB argues that the construction of
impoundments and diversion structures in 1978 cannot
be considered by this court as evidence that the RVQCB
is an operator today because of Eleventh Amerdment
immunity for these past occurrences. The argument does
not lie both as a matter of fact and as a matter of law.
The argument is premised on the notion that the lack
of authority to award monetary damages because of past
conduct precludes consideration of that conduct relative
to future violations of law. No such rule exists, ard it is
clear that insofar as future conduct is subject to 1egula-
tion by this court, the RWQCB’s past conduct is relevant
and competent evidence. Ex Parte Young, 209 U.S. 123,
155-56 (1908). Put another way, this defendant's coastruc-
tion efforts are not simply past occurrences but evdence
A47
of continuing violations of the Clean Water Act. The
RWQCEB collected and channeled the surface waters at the
site and constructed conveyances and point sources of
pollution at the facility which the RWQCB knew would
result in ongoing discharges of pollutants into navigable
waters.*? The RWQCB admits such discharges have
occurred periodically, RWQCB Answer { 21, and that the
RWQCB participated in the mutual decision to release
impounded waters. MOU at 2.
Even if it were not clear that the RWQCB’s position
must fail as an evidentiary matter, it fails for an even
more direct reason. Suits under the Clean Water Act are
authorized by virtue of the Commerce Clause of the
federal Constitution. See, e.g., Hodel v. Virginia Surface
Mining & Reclamation Ass‘n., 452 U.S. 264, 282-83 (1981);
Leslie Salt Co. v. Froehlke, 578 F.2d 742, 755 (9th Cir. 1978).
The Supreme Court has held that Congress may abrogate
a state’s Eleventh Amendment immunity from suit in
federal court when acting pursuant to the Commerce
Clause. Pennsylvania v. Union Gas Co., 491 U.S. 1, 14 (1989)
(plurality opinion). The High Court only requires that
Congress’ intent to do so must be “unmistakably clear in
the language of the statute.” Atascadero State Hospital v.
Scanlon, 473 U.S. 234, 242 (1985); Green v. Mansour, 474
U.S. 64, 67-68 (1985) (“states may not be sued in federal
court ... unless Congress, pursuant to a valid exercise of
power, unequivocally expresses its intent to abrogate the
*? The MOU explicitly declares that “(t]he parties [to the
MOU]j recognize that releases of waters from the impoundment
reservoir into Camanche Reservoir will occur periodically.”
MOU at 1.
A48
immunity”). The Clean Water Act’s definition of “per-
son,” 33 U.S.C. § 1362(5), and the regulation providing
that the state is a “person” subject to the Act, 40 C.FR.
§ 122.2, clearly demonstrate that Congress intended to
impose liability upon the states for their violations of the
Act. See, e.g., Union Gas Co., 491 U.S. at 11-12 (inclusion of
state within the definition of “persons” is an indication of
Congressional intent to subject states to CERCLA liability
under citizen suit provision). For these reasons, the
Board’s Eleventh Amendment argument fails.
b. Regulatory Conduct
In the alternative, the RWQCB contends that it is not
liable for discharges from the facility because the conduct
complained of was undertaken pursuant to its regulatory
authority and was the direct outgrowth of an enforce-
ment action against EBMUD. RWQCB opp’n to SJ at 27;
Del Conte Aff., {{ 10-17; Cal. Water Code, §§ 13260-73.*° I
cannot agree.
State government officials have generally not been
held responsible for pollution alleged to have been
caused by a failure to enforce the requirements of the
Clean Water Act. See, e.g., Ringbolt Farms Homeowners
Ass'n v. Town of Hull, 714 F. Supp. 1246, 1256 (D. Mass.
1989) (no cause of action against the states for any
” In the event a responsible person fails to cleanup or abate
pollution discharged into waters of California in violation of
waste discharge requirements, the RWQCB is authorized to per-
form cleanup, abatement or remedial work required under the
circumstances. Cal. Water Code § 13260-13273, 13304.
A49
improper administration of their regulatory duties or for
any failure to enforce the provisions of the Clean Water
Act against polluters); Love v. New York State Dep’t of
Environ. Conserv., 529 F. Supp. 832, 840 (S.D.N.Y. 1981)
(CWA does not impose liability on local government offi-
cials for failing to issue orders to stop ongoing pollution
by a third party); Moyer’s Landfill, 523 F. Supp. at 648
(regulatory agency that decides against enforcement is
not responsible for discharges under the Act). On the
other hand, as the RWQCB concedes, an allegation that
the state itself violated effluent standards would provide
citizen suit jurisdiction. RWQCB opp’n to SJ at 27.3! The
Board attempts to distinguish such cases from one where
the state’s violation of the Clean Water Act was caused by
“remedial actions to abate another’s pollution taken pur-
suant to a state’s regulatory functions. ...” Id. The
Regional Board acknowledges that it found no cases that
specifically address this issue. Id. The fact that nothing in
the statute remotely supports its position suffices to dis-
pose of the Board’s contention.
The Board points to those cases where a state agency
has become an owner or operator of hazardous waste
3! “The Regional Board does not dispute that when a state
agency is acting pursuant to proprietary functions, eg. (sic)
owner/operator of prison with its own sewage treatment facil-
ity, it is subject to Clean Water Act requirements for discharges
of pollution into navigable waters.” Opp’n at 27, n.21. See, e.g.,
Montgomery Envtl. Coalition v. Fri, 366 F. Supp. 261, 267 (D.D.C.
1973) (state officials can be liable for failure to enforce the Act
and where officials control the discharge of pollutants); Ringbolt
Farms Homeowners Ass'n, 714 F. Supp. at 1256 (the Act does
provide relief against a state “to the extent that the state is an
actual discharger of pollutants in violation of the Act”).
A50
sites because of its regulatory activities, making it a
potentially responsible party under the Comprehensive
Environmental Response, Compensation and Liability
Act of 1980 (CERCLA), 42 U.S.C. §§ 9601-75. RWQCB
opp’n to SJ at 27. It argues that here, as in such cases, the
main focus should be on whether the agency has func-
tioned more like a regulatory body or more like a private
party. The argument cannot prevail.
The absence of CERCLA liability in cases cited by the
Board is the result of a specific congressional judgment.
See 42 U.S.C. § 9607(a)(1) and (2)) [sic], 42 U.S.C. § 9601.32
No such statutory exemption is provided governmental
agencies under the Clean Water Act.
Moreover, even if something in the Act supported
RWQCB’s contention, the factual premise is faulty.
Although it may be that the Board’s initial involvement at
32 42 U.S.C. § 9601(20)(D) specifically excludes from
CERCLA liability a state acquiring title to contaminated prop-
erty “by virtue of its function as a sovereign,” except where the
state “has caused or contributed to the release or threatened
release of a hazardous substance from the facility.” 42 U.S.C.
§ 9601(20)(D). CERCLA also contains a specific exemption for
persons engaged in cleanup activities and agencies responding
to emergencies concerning actual or potential releases. 42 U.S.C.
§ 9607(d). Finally, contrary to the RWQCB’s understanding of
the CERCLA cases, courts have held regulatory agencies can be
liable under CERCLA where the agency exercises control over
the polluting activity. See, e.g., United States v. Stringfellow, 31
ERC 1315 (C.D. Cal. 1990) (State of California liable because of
activities including control of waste disposal and participation
in opening and closing the site); United States v. New Castle
County, 727 F. Supp. 854, 866-67 (D. Del. 1989) (list of factors on
which state liability might be premised).
A51
Penn Mine was in a regulatory capacity, as noted above,
the record conclusively demonstrates that it presently
does more than regulate -- it controls the discharge of
pollutants. It jointly constructed the facility, purchased
the pump, finances pump operating costs, and controls
discharges of pollutants. These factors demonstrate that
the RWQCB is presently a discharger in its own right
rather than a passive agency bystander and is liable for
the discharges. Friends of Sakonnet, 738 F. Supp. at 629.
For all of the above reasons, I conclude that there is
no material issue of fact concerning either defendant's
discharging of pollutants, and thus plaintiff has satisfied
the third element of its cause of action. I now turn to the
last element, the discharge through a point source.
B. The Facility is a Contained Leachate Collection
and Treatment System Which Releases Acid
Mine Drainage from Point Sources
A “point source” is defined under the Act as
any discernable, confined and discrete convey-
ance, including but not limited to any pipe,
ditch, channel, tunnel, conduit, well, discrete
fissure, container, rolling stock, concentrated
animal feeding operation, or vessel or other
floating craft, from which pollutants are or may
be discharged. This term does not include agri-
cultural stormwater discharges and return flows
from irrigated agricultures.
33 U.S.C. § 1362(14). Plaintiff argues that the discharge
valve and spillway on Mine Run Dam are point sources
because they are “discernable, confined and discrete”
conveyances from which pollutants may be discharged.
A52
That position appears well taken. See National Wildlife
Federation v. Gorsuch, 693 F.2d 156, 165 n.22 (D.C. Cir.
1982) (“the pipes or spillways through which water flows
from the reservoir through the dam into the downstream
river clearly fall within [the point source] definition”).
I begin by noting that on September 28, 1990, EPA
concluded that Mine Run Dam and Reservoir includes
point sources which must be regulated under 33 U.S.C.
§ 1314(1)1)(C) [sic].5° See plaintiff’s Ex. 5 in support of SJ
against EBMUD; see also EPA’s Response to Comments
and Petitions Regarding Listing Decisions for California
Waters Under Section 304(i) of the Clean Water Act at 1,
plaintiff’s Ex. 6 in support of SJ against EBMUD (“EPA
response”).*4 Underlying this conclusion is EPA’s deter-
mination that the facility is a leachate collection system
which discharges or adds pollutants to navigable waters
from point sources when acid mine drainage is released
from the Mine Run Dam’s spillway or discharge valve
into the Mokelumne River and Camanche Reservoir.*5
33 1 note that because the historical facts are not in dispute,
this is a question of interpretation of law not simply a factual
dispute as argued by the RWQCB.
4 The court grants plaintiff’s request that the court take
judicial notice of the fact of EPA’s decision and response, pur-
suant to Fed. R. Civ. P. 201.
35 EPA’s analysis is that: “EBMUD is the owner and opera-
tor of a point source through which EBMUD discharges pollu-
tants. Notwithstanding that it may result from such natural
phenomena as rainfall and gravity, the surface runoff of contam-
inated waters, once channeled or collected, constitutes dis-
charge by a point source. ... The Mine Run Dam and Mine Run
Dam Reservoir is a leachate collection system. When the leach-
ate collection system fails because of flaws in the construction or
A53
EPA’s construction of the Clean Water Act is entitled
to substantial deference. See Gorsuch, 693 F.2d at 166-70;
Rybachek v. U.S. EPA, 904 F.2d 1276, 1284-85 (9th Cir.
1990). Defendants, however, contend that for various rea-
sons EPA’s conclusion should not be viewed as disposi-
tive.
Defendants first argue that deference is inappropri-
ate since EPA’s determination that Mine Run Dam and
Reservoir is a leachate collection system, as opposed to a
traditional dam which merely impounds navigable
waters, is inconsistent with prior EPA interpretations of
the Act. Assuming that defendants’ characterization of
the history of EPA’s decisions is correct, under recent
pronouncement of the Supreme Court, the decision is
nonetheless entitled to deference. See Rust v. Sullivan, 111
S. Ct. 1759, 1768-1769 (1991) (where plain language and
legislative history of statute are ambiguous, agency’s
revised interpretation of statute is entitled to substantial
deference if change is justified by “reasoned analysis”).
In the alternative, the RWQCB argues that if the court
defers to any administrative agency’s factual determina-
tions concerning the facility, that deference should be to
inadequate size to handle the fluids used, with resulting dis-
charge, whether from a fissure in the dirt berm or overflow of a
wail, the escape of liquid from the confined system is from a
point source. .. . The discharges here resulting from (1) “con-
trolled releases” through the discharge valve at the north end,
and (2) “uncontrolled releases” such as overflows of the Mine
Run Dam Reservoir, coristitute point source discharges.” EPA
Response at 4 (citations omitted).
A54
the RWQCB and not to EPA. RWQCB opp’n to SJ at 9.56 It
is true that the Clean Water Act allocates to the States the
primary responsibility for administering the Act with
EPA having oversight authority and enforcement powers.
Shell Oil Co. v. Train, 585 F.2d 408, 410 (9th Cir. 1978)
(Congress clearly intended that the states would eventu-
ally assume the major role in the operation of the NPDES
program). Nonetheless, consistent with its authority to do
so, the EPA explicitly disapproved the RWQCB’s control
strategy for the Penn Mine facility and assumed permit-
ting authority over the facility under 40 C.F.R. Part
123.46(f);37 see Cleveland Elec. Illuminating Co. v. EPA, 603
36 The RWQCEB asserts that its determination that the Mine
Run Dam is not a point source is based on greater knowledge of
the site than that of EPA’s staff. RWQCB amended opp’n to
plaintiff’s motion for SJ at 10 (“EPA’s preliminary determination
that the dam is a point source . . . was based only a few docu-
ments placed in a huge administrative records (sic) and no
independent investigation or analysis of any sort.”). The
RWQCB offers no evidence to support this assertion, nor any
authority that its asserted superior knowledge provides it with
a right to greater deference as a legal matter. The legal scheme
governing the relationship between the agencies makes the EPA
the final authority by virtue of its power to assume permitting
authority. See 40 C.F.R. Pt. 123.46(f). The degree of deference to
administrative expertise required to be given by the courts rests
on legal rather than factual determination. See Bell v. Wolfish, 441
U.S. 520, 548 (1979) (“We further observe that on occasion
prison administrators may be ‘experts’ only by Act of Congress
or of a State legislature.”).
37 EPA has asserted its authority finding that “EPA disap-
proves the individual control strategy for Mine Run Dam/ Mine
Run Dam Reservoir because one has not been submitted. Under
regulations at 40 CFR Part 123.46(f), EPA is assuming permitting
authority for this facility. ...” EPA 304(1) Decision, plaintiff’s
Ex. 5 in supp. of mot. for SJ against EBMUD at 18.
A55
F.2d 1, 6 (6th Cir. 1979) (EPA’s only duty in disapproving
state permitting decision is to consider the findings of the
initiating agency). Under these circumstances, it seems
relatively clear that the appropriate agency enjoying def-
erence is the EPA.
There is, however, another and more convincing
basis for limiting deference being accorded EPA’s conclu-
sion. As I noted above, EPA has not yet responded to
EBMUD’s petition for reconsideration of its determina-
tion that Mine Run Dam is subject to regulation under the
Clean Water Act. Because EPA’s initial conclusion is sub-
ject to reconsideration, the persuasive effect of the deci-
sion is diminished. Nonetheless, I find that EPA’s
conclusion that the Mine Run Dam and Reservoir
includes point sources discharging pollutants both rea-
soned and correct.
The Clean Water Act governs the discharge of pollu-
tants from a confined leachate** treatment system. See,
e.g., Earth Sciences, 599 F.2d at 374 (Clean Water Act
applies to a mining operation which collects leachate in a
closed circulating system meant to isolate the leachate).
The court explained that when the system
fails because of flaws in the construction or
inadequate size to handle the fluids utilized,
with resulting discharge, whether from a fissure
in the dirt berm or overflow of a wall, the
escape of liquid from the confined system is
from a point source. Although the source of the
38 Leachate is liquid, originally rain or groundwater, that
has passed through some toxic substance and thus is contami-
nated. See, e.g., Moyer’s Landfill, 523 F. Supp. at 651 n.18.
A56
excess liquid is rainfall or snow melt, this is not
the kind of general runoff considered to be from
nonpoint sources under the [Act].
Id.
Similarly, in Moyer’s Landfill, 523 F. Supp. at 655, the
court concluded that leaks from a landfill leachate circu-
lating collection and treatment system, emanating from
overflowing ponds, collection-tank bypasses, collection-
tank cracks and defects, gullies, trenches, ditches, and
broken dirt berms were point source discharges in viola-
tion of the Act. The court explained that “[n]otwithstand-
ing that [discharges] may result from such natural
phenomena as rainfall and gravity, the surface run-off of
contaminated waters, once channeled or collected, consti-
tutes discharge by a point source.” Id.; accord Abston, 620
F.2d at 45-46.
The facts here demonstrate that the Penn Mine facil-
ity is a contained leachate collection and treatment sys-
tem, like that in Earth Sciences and Moyer’s Landfill. The
Penn Mine facility was designed to capture contaminated
surface water flowing through the site, to contain and
evaporate the leachate through a ponding and recircula-
tion system, and to release acid mine drainage and pol-
luted runoff from the Mine Run Dam and Reservoir
through the spillway and discharge valve into the
Mokelumne River and Camanche Reservoir. See Bond
Report; RWQCB’s statement of uncontroverted material
facts F¥ 32, 33; Supp. Jennings Decl. in supp. of SJ against
EBMUD 3-5, Attachments A, B.
A57
Both defendants admit that the facility is designed to
release impounded acid mine drainage into the Cam-
anche Reservoir and Mokelumne River through the con-
trolled discharge valve and the spillway. EBMUD Answer
q{ 21; RWQCB Answer { 21. Both defendants admit such
releases have occurred in the past. ERMUD Answer § 21;
RWQCB ¥ 21. Nonetheless, the defendants argue that the
facility is not a “point source” because, as a general
matter, the mere passage of polluted waters through a
dam that impounds navigable waters does not give rise to
a permit requirement. Appalachian Power Co. v. Train, 545
F.2d 1351, 1377 (4th Cir. 1976); State of Missouri ex rel.
Ashcroft v. Dep't of the Army, 672 F.2d 1297, 1304 (8th Cir.
1982). Only when a pollutant is added by the dam itself is
a permit required. Consumers Power Co., 862 F.2d 580;
United States ex rel. TVA v. Tenn. Water Quality Control
Board, 717 F.2d 992 (6th Cir. 1983), cert. denied, 446 U.S.
937 (1984); Gorsuch, 693 F.2d 156. Defendants assert that
Mine Run Dam adds nothing to the navigable waters
which it impounds because it deliberately was con-
structed of non-reactive materials.
Defendants cannot rely on cases which involve stor-
age or hydroelectric dams that temporarily impound the
flow of navigable waters. Mine Run Dam and Reservoir
impound mostly leachate rather than navigable waters,
and although some of the impounded waters are naviga-
ble, additional pollutants are added to the leachate con-
tained in the Mine Run Dam Reservoir by channeling
polluted runoff. See West Virginia Coal v. Reilly, 728 F.
Supp. 1276, 1283 (S.D. W.Va. 1989) (impoundment of
“ “waters of the United States’ does not effect regulatory
A58
responsibility of EPA under the Clean Water Act). More-
over, the fact that Mine Run Dam is a dam that impounds
some navigable waters does not relieve defendants from
the permit requirement of the Clean Water Act. Permits
have been issued for dams where their purpose is to treat
municipal wastes which are then discharged into naviga-
ble waters. See Consumers Power, 862 F.2d at 586; see also
Gorsuch, 693 F.2d at 165 n.22 (“a dam can, in some circum-
stances, be a ‘point source
would, in effect, allow defendants to discharge channeled
). Defendants’ position
pollutants with impunity. I find no language of the stat-
ute to support such a result. See United States v. Alfeche,
942 F.2d 697, 698-99 (9th Cir. 1991) (interpretation that is
consistent with the language of the statute and avoids
absurd results is preferred).99 Under these circumstances,
there appears to be no reasonable doubt that the dis-
charges are from point sources, thus satisfying the last
remaining element of plaintiff's cause of action.
Vv
CONCLUSION
As to both EBMUD and the RWQCB, plaintiff has met
its burden of showing that they are liable by virtue of
their relationship to Mine Run Dam and Reservoir and
39 Although Congress defined “navigable waters” to give
the term the “broadest possible constitutional interpretation,”
Congress did so to regulate, rather than to exempt, discharges
into waters of the United States. See, e.g., Earth Sciences, 599 F.2d
at 375; In re Arizona Appetito’s Stores, Inc., 893 F.2d 216, 219 (9th
Cir. 1990) (statutes should be interpreted to advance the pur-
poses of Congress).
A59
their discharge of pollutants through point sources into
navigable waters of the United States without a permit as
required by the Clean Water Act.4°
VI
ORDER
For all the above reasons, IT IS HEREBY ORDERED:
(1) Defendants EBMUD and the individual members
of the RWQCB’s motions to dismiss are DENIED; and
(2) Plaintiff’s motion for summary judgment on
EBMUD’s liability under the Clean Water Act is
GRANTED;
(3) Plaintiff’s motion for summary judgment on the
individual members of the RWQCB’s liability under the
Clean Water Act is GRANTED.
IT IS SO ORDERED.
40 The drought spawned a battle of the experts as to
whether the conditions at the site threatened continued spills
into the Camanche Reservoir and Mokelumne River. According
to the newspapers, the recent rains have laid that dispute to rest.
The court will resist an extended analysis of the state of the
record unless within fifteen (15) days of the issuance of this
Order either defendant contends that the newspapers’ reports
of the situation are incorrect. For the same reason, the court sees
no reason to further delay disposition of this case to accommo-
date plaintiff's motion to supplement.
A60
DATED: March 2, 1993.
/s/ Lawrence K. Karlton
LAWRENCE K. KARLTON
CHIEF JUDGE EMERITUS
UNITED STATES
DISTRICT COURT
Aél
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
COMMITTEE TO SAVE No. 93-15999
eee” * «> DC. No. CIV-S-91-1372-
P LKK-PAN
corporation,
ORDER
Plaintiff-Appellee, (Filed Apr. 21, 1994)
EAST BAY MUNICIPAL
UTILITY DISTRICT, a
California Municipal Utility
District, et al.,
Defendants-Appellants.
)
)
)
)
)
)
Vv. )
)
)
)
)
)
)
)
Before: REAVLEY,* PREGERSON, and FERNANDEZ, Cir-
cuit Judges.
The panel has voted unanimously to deny the peti-
tion for rehearing and to reject the suggestion for rehear-
ing en banc.
The full court has been advised of the suggestion for
rehearing en banc and no active judge has requested a
vote on whether to rehear the matter en banc. Fed. R.
App. 35.
The petition for rehearing is denied and the sugges-
tion for rehearing en banc is rejected.
* Hon. Thomas M. Reavley, United States Circuit Judge, U.S.
Court of Appeals for the Fifth Circuit, sitting by designation.
A62
J HAM XA we
UPld SYS sul uUusg Z aunbi,
SeLOU LOrJeAK }OUurtY
eur] Apedoig OWES
o44 OS
sSuge) euyy
39384 OUNY
SPUdg UORBJOdRAZ UNY GURY
Spudg LogRIOdBAg uray Asppyy
¢39-800
-j
HO8 | |
5
3
SSS ee
.
14 S°SEZ °B ABmpds
BOAHSS3Y SHONWNVS
eee
* 6°. %e%e%e®
. °°.”
. eee
. eee
. .
eee ee
eee
.
eee ee
eee se
eee es
ee.
ee ees
eee
7
eeees
On
A63
UNITED STATES CODE SERVICE
TITLE 33. NAVIGATION AND NAVIGABLE WATERS
CHAPTER 26.\ .£R POLLUTION
PREVENTION AND CONTROL
RESEARCH AND RELATED PROGRAMS
33 USCS § 1251 (1994)
§ 1251. Congressional declaration of goals and policy
(a) Restoration and maintenance of chemical, physical
and biological integrity of Nation’s waters;
national goals for achievement of objective.
The objective of this Act is to restore and maintain the
chemical, physical, and biological integrity of the
Nation’s waters. .. .
(b) Congressional recognition, preservation, and pro-
tection of primary responsibilities and rights of
States.
It is the policy of the Congress to recognize, preserve, and
protect the primary responsibilities and rights of States to
prevent, reduce, and eliminate pollution, to plan the
development and use (including restoration, preserva-
tion, and enhancement) of land and water resources, and
to consult with the Administrator in the exercise of his
authority under this Act. It is the policy of Congress that
the States manage the construction grant program under
this Act and implement the permit programs under sec-
tions 402 and 404 of this Act [33 USCS §§ 1342, 1344]. It is
further the policy of the Congress to support and aid
A64
research relating to the prevention, reduction, and elim-
ination of pollution, and to provide Federal technical
services and financiai aid to State and interstate agencies
and municipalities in connection with the prevention,
reduction, and elimination of pollution.
+ * *
UNITED STATES CODE SERVICE
TITLE 33. NAVIGATION AND NAVIGABLE WATERS
CHAPTER 26. WATER POLLUTION
PREVENTION AND CONTROL
STANDARDS AND ENFORCEMENT
33 USCS § 1311 (1994)
§ 1311. Effluent limitations
(a) Illegality of pollutant discharges except in compli-
ance with law. Except as in compliance with this section
and sections 302, 306, 307, 318, 402, and 404 of this Act
[33 USCS §§ 1312, 1316, 1317, 1328, 1342, 1344], the dis-
charge of any pollutant by any person shall be unlawful.
* * +
A65
UNITED STATES CODE SERVICE
TITLE 33. NAVIGATION AND NAVIGABLE WATERS
CHAPTER 26. WATER POLLUTION
PREVENTION AND CONTROL
STANDARDS AND ENFORCEMENT
33 USCS § 1319
§ 1319. Enforcement
(a) State enforcement; compliance orders.
(1) Whenever, on the basis of any information
available to him, the Administrator finds that
any person is in violation of any condition or
limitation which implements section 301, 302,
306, 307, 308, 318, or 405 of this Act [33 USCS
§ 1311, 1312, 1316, 1317, 1318, 1328, or 1345] in a
permit issued by a State under an approved
permit program under section 402 or 404 of this
Act [33 USCS § 1342 or 1344], he shall proceed
under his authority in paragraph (3) of this sub-
section or he shall notify the person in alleged
violation and such State of such finding. If
beyond the thirtieth day after the Administra-
tor’s notification the State has not commenced
appropriate enforcement action, the Administra-
tor shall issue an order requiring such person to
comply with such condition or limitation or
shall bring a civil action in accordance with
subsection (b) of this section.
+ * *
(3) Whenever on the basis of any information
available to him the Administrator finds that
any person is in violation of section 301, 302,
306, 307, 308, 318, or 405 of this Act [33 USCS
§ 1311, 1312, 1316, 1317, 1318, 1328, or 1345], or
A66
is in violation of any permit condition or limita-
tion implementing any of such sections in a
permit issued under section 402 of this Act [33
USCS § 1342] by him or by a State or in a permit
issued under section 404 of this Act [33 USCS
§ 1344] by a State, he shall issue an order requir-
ing such person to comply with such section or
requirement, or he shall bring a civil action in
accordance with subsection (b) of this section.
* * *
(b) Civil actions. The Administrator is authorized to
commence a civil action for appropriate relief, including a
permanent or temporary injunction, for any violation for
which he is authorized to issue a compliance order under
subsection (a) of this section... .
(c) Criminal penalties.
(1) Negligent violations. Any person who -
(A) negligently violates section 301, 302, 306,
307, 308, 311(b)(3), 318, or 405 of this Act [33
USCS § 1311, 1312, 1316, 1317, 1318, 1321(b)(3),
1328, or 1345], or any permit condition or limita-
tion implementing any of such sections in a
permit issued under section 402 of this Act by
the Administrator or by a State, or any require-
ment imposed in a pretreatment program
approved under section 402(a)(3) or 402(b)(8) of
this Act [33 USCS § 1342(a)(3) or (b)(8)] or in a
permit issued under section 404 of this Act [33
USCS § 1344] by the Secretary of the Army or by
a State; . .
A67
shall be punished by a fine of not less than $2,500 nor
more than $25,000 per day of violation, or by imprison-
ment for not more than 1 year, or by both. If a conviction
of a person is for a violation committed after a first
conviction of such person under this paragraph, punish-
ment shall be by a fine of not more than
$50,000 per day of violation, or by imprisonment of not
more than 2 years, or by both.
* * *
(d) Civil penalties. Any person who violates section 301,
302, 306, 307, 308, 318, or 405 of this Act [33 USCS § 1311,
1312, 1316, 1317, 1318, 1328, or 1345], or any permit condi-
tion or limitation implementing any of such sections in a
permit issued under section 402 of this Act [33 USCS
§ 1342] by the Administrator, or by a State, or in a permit
issued under section 404 of this Act [33 USCS § 1344] by a
State [,], or any requiremer* imposed in a pretreatment
program approved under section 402(a)(3) or 402(b)(8) of
this
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.