# Petition for Writ of Certiorari — Members of the California Regional Water Quality Control Board v. Committee to Save the Mokelumne River > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0143%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1994 - **Citation:** 513 U.S. 873 ## 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 ori [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0143%3A1. Public record. Not legal advice.