Opposition Brief — Members of the California Regional Water Quality Control Board v. Committee to Save the Mokelumne River

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Hupreme Cowt, B.S,

@) FILED

I) AUG 2 4 1994

CLERK

No. 94-0154

In The

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 UTITLITY DISTRICT,

Petitioners,

COMMITTEE TO SAVE THE MOKELUMNE RIVER,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

RESPONDENT’S BRIEF IN OPPOSITION

Aprtia Y. LAROsE

WituraM S. Curtiss

SrerrRA Crus LEGAL DeFENSE FUND

180 Montgomery Street, 14th FI.

San Francisco, CA 94104

(415) 627-6700

Attorneys for Respondent

Committee to Save the

Mokelumne River

QUESTIONS PRESENTED

The petition presents two questions. First, whether

the Court of Appeals for the Ninth Circuit was correct in

holding that the Penn Mine Pollution Abatement Facility,

which discharges polluted leachate into the Camanche

Reservoir and the Mokelumne River, is a point source

subject to the permit requirements of Section 301(a) of the

Federal Water Pollution Control Act (the “Clean Water

Act” or “Act”), 33 U.S.C. § 1311(a). Second, whether it

properly concluded that both petitioners, as joint owners

and operators of the Facility, are liable under the Act for

those discharges in the absence of a permit.

PARTIES TO THE PROCEEDING

Respondent accepts petitioners’ identification of the

parties. Respondent is a not-for-profit California corpora-

tion and has no parent company, subsidiaries or affiliates.

This statement is provided pursuant to Supreme Court

Rule 29.1.

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iii

TABLE OF CONTENTS

Page

Eos Oy | i

PARTIES TO THE PROCEEDING .................. ii

pe a pe oe aaa a Vv

RESPONDENT’S BRIEF IN OPPOSITION........... 1

eo a 1

STATEMENT OF JURISDICTION................... 1

STATUTORY PROVISIONS INVOLVED............. 1

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le I IO 6 ob os vn dn'n oa ewan dae oe enve' 2

EE OTE ET ete ee ee eee 8

REASONS FOR DENYING THE PETITION......... 9

URE GE AAPRIMNORE 20. c cnc cc ccc ene 9

ie ML CRA Sede Wesne tee cerencemensevcnases 10

A. The Facility Discharges Pollutants From

Point Sources That Must Be Regulated By

eer ciccewbuncenseusss 11

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2. EPA’s Construction of the Act ....... 12

eee ba Sige ae awsess 13

B. The Facility Is Not A Conventional Dam That

Merely Impounds Navigable Water ........ 16

C. The Language of the Clean Water Act And

Its Legislative History Demonstrate That

Even State Agencies Acting As Polluters

ST IE I Gs kk oy oa sa daw sakvectns 20

TABLE OF CONTENTS - Continued

Page

1. The Act’s Unambiguous Language Con-

firms That There is no Shield for the

States Acting as Private Polluters ...... 21

2. That Congress Elected Not To Trans-

plant CERCLA’s Limitations on Lia-

bility for Cleanup Costs to the Clean

Water Act Demonstrates That No

Immunity Was Intended ............. 23

D. Even If the CERCLA Exemptions Applied

To Citizen Suits Under the Clean Water

Act, The Regional Board Would Still Be

EANn sc douuraccpeacwames ee rae wuwauaes 25

CL RIT Ska 48.60 0000045 enadbe bake deamanue ees 26

TABLE OF AUTHORITIES

Page

Cases

Arkansas v. Oklahoma, 112 S.Ct. 1046 (1992).......... 23

E.P.A. v. California ex rel. State Water Resources

Control Board, 426 U.S. 200 (1976).......... 16, 13, Z

Friends of Sakonnet v. Dutra, 738 F. Supp. 623 (D.

Red, TPs sve sccte idan behaves 15, 18

Goodyear Atomic Corp. v. Miller, 486 U.S. 174 (1988) .... 25

Hudson River Fishermen's Ass’n v. City of New York,

751 F. Supp. 1088 (S.D.N.Y. 1990), aff'd, 940 F.2d

Ce £6. eer err ee ey er ree roe 14

Marquette Nat’! Bank v. First of Omaha Service Corp.,

OOP RE Bee Cs so hk a scene ak ee eee e 21

Miles v. Apex Marine Corp., 498 U.S. 19 (1990)....... 25

Miller v. Youkam, 440 U.S. 125 (1979).............06. 21

Missouri ex rel. Ashcroft v. Department of the Army,

G72 FAG 1297 COR GOR THs bcc ciicdsvascesseis. 17

National Wildlife Federation v. Consumers Power Co.,

S62 P.aee SOU GO GU, BOR ions icc botvenccaaaiin 17

National Wildlife Federation v. Gorsuch, 693 F.2d 156

(Dk a ia 6c 5'8s ieee bh ahs 9, 17, 18

O'Leary v. Moyer’s Landfill, Inc., 523 F. Supp. 642

i 8 Se | SE Sr emew eras teu ire ey F 13

Ringbolt Farms Homeowners Ass‘n v. Town of Hull,

714 F, Supp. 1246 (D. Mass. 1989) ..........-ee0es 22

Sierra Club v. Abston Construct. Co., Inc., 620 F.2d

fo = PI Tee eeE TS ret eer oe 15, 18

TABLE OF AUTHORITIES —- Continued

Page

Tennessee Valley Authority v. Hill, 437 U.S. 153

sn) avd bah nhesan caver sened beaecaaenereren rei 20

Trustees for Alaska v. E.P.A., 749 F.2d 549 (9th Cir.

DEG Wiss cae tbe scp cedees dvcweves Vibeamiaeesss 10, 15

U.S. ex rel. Tenn. Valley Authority v. Tennessee Water

Quality Control Bd., 717 F.2d 992 (6th Cir. 1983),

cert. denied, 466 U.S. 937 (1984) ................4.. 17

United States v. Earth Sciences, Inc., 599 F.2d 368

EE Es SOT Pic one venvecvesservenbeden 13, 14, 15, 18

U.S. v. Stringfellow, 31 E.R.C. 1315 (C.D. Cal. 1990) .... 26

West Virginia Coal v. Reilly, 728 F. Supp. 1276

(S.D.W.Va. 1989) aff'd mem., 932 F.2d 964 (4th

RE Sus adedvavevesdedeocecdonasahetavees? 19, 20

West Virginia University Hospitals, Inc. v. Casey, 499

SE ARTO ED 00 vce incsewendieds oct wesedeewresténs 25

Westvaco Corp. v. E.P.A., 899 F.2d 1383 (4th Cir.

NC 8400s 6N0cdecuur’ “oune ends eanbGeaneinstboneen 11

FEDERAL STATUTES

Comprehensive Environmental Response, Compensation

and Liability Act

i s,s anenuvaunnsswuacnen 24

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ee Ss vnnvneweudhaidcss dented 24

Federal Water Pollution Control Act

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Vii

TABLE OF AUTHORITIES - Continued

Page

TF Re ie BE hi keen icsese cues cases seeds 7, 12, 13

Se Bas OF RIED 6 avec cncedconsevanedanbisses 12

Bp. Wiis. DEE 6 65. 65.30.c0rsi ne vcancevensauseen 19

BP Ts Oe BEEN é 6 oon vb0 04 cade weehnnnssieana 13

gS MST rer eryTTTrre ere rs 8, 10

Se Se EE vin obo bd ede ceerekebecdusvunesene 22

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Be ee IE 0008005 450 ive tounevenseccacueus 11

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Bi se 00 ll err rrrrr errr ry 8, 9, 21

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SB A Be iin hie siete vee cesiccinestenss 7, 8

BF Sa EEE co Nnccbuntwine ess scvvassdeasedues 7, 8

Pub. 1. 92-S0G, 66 Stat. S16, GSS ......cescccncsccnss 23

Pub. L. 92-500, 86 Stat. 816, 844 ............. ee eee 23

Superfund Amendments and Reauthorization Act of 1986

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Paid. E. SSS, TOP GE. RGIS... ince cnvscccescucees 24

Pah. 5. SRR, BOD ONE. BE eo anc ic vcncnsccccccanes 24

Viii

TABLE OF AUTHORITIES - Continued

Page

REGULATIONS

gk ER Se a grantee Poa gaint (a Sarl em rr te

I I ies Ss'd wa 5 Wo wean a ea ac a 19

es EE Ss gd bai 6d wakbds cee bened nerds wee 13

eG EN 5605 sox bn eG Aes Aah d eas eee aha ke eer 19

STATE STATUTES

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OTHER AUTHORITIES

SE ID RIOD MD 6s bb kee hoes cd capnucshnavbans 9

I UIE RUE DIAN ob. ode cevendsiccsevecauvcaws ii

S. Rep. No. 414, 92nd Cong., Ist Sess. 43 (1971)..... 23

RESPONDENT’S BRIEF IN OPPOSITION

Respondent Committee to Save the Mokelumne River

(“Committee”) respectfully requests that this Court deny

the petition for a writ of certiorari to review the decision

of the United States Court of Appeals for the Ninth

Circuit in this case.

OPINIONS BELOW

The Committee accepts petitioners’ identification of

the opinions below.

STATEMENT OF JURISDICTION

The Committee accepts petitioners’ statement of

jurisdiction.

STATUTORY PROVISIONS INVOLVED

The relevant statutory provisions are set forth in the

Appendix to the Petition for a Writ of Certiorari (“Peti-

tioners’ Appendix”) at A63-A87, and in the Appendix to

the Respondent’s Opposition (“Respondent’s Appendix”)

at Al-A3.

STATEMENT OF THE CASE

The Committee brought a citizen suit for declaratory

and prospective injunctive relief against petitioners East

Bay Municipal Utility District (“EBMUD” or the “Dis-

trict”) and the members of the Regional Water Quality

Control Board - Central Valley Region (“Regional

Board”) for their unlawful discharge of pollutants from

the Penn Mine Pollution Abatement Facility (“Facility”)

into the Camanche Reservoir and Mokelumne River in

violation of Section 301(a) of the Clean Water Act, 33

U.S.C. § 1311(a). The Facility was designed to collect,

store, evaporate, and, from time to time, discharge acid

mine drainage from property owned by EBMUD and the

now-defunct New Penn Mines, Inc. into the river.

The petition for a writ of certiorari seeks review of

the opinion of the court of appeals affirming that the

petitioners’ discharges from the point source they own

and operate require the same permit necessary under the

Clean Water Act for other commercial or private facilities.

A. History of the Site

The Mokelumne River flows through the heart of

California, beginning its journey as a Sierra Nevada

mountain stream in the Mokelumne Wilderness, winding

through the foothills and down into the Central Valley

before joining the San Joaquin River. The Mokelumne

River supports an abundance of wildlife and riparian

vegetation and is the major water supply for residents of

Contra Costa and Alameda Counties, as well as the com-

munity at Camanche South Shore, which draws its water

supply directly from the river downstream from the Facil-

ity. The river is home to a myriad of fish species, aquatic

life and wildlife, and several fisheries. It supports various

other recreational, municipal, domestic and agricultural

water supply uses, which have been compromised by the

discharge of tons of toxic heavy metals into the river

during normal rainfall years from the Facility that the

petitioners designed, built, own and control.

Petitioner EBMUD is a public utility formed in 1923

under California’s Municipal Utility District Act, Cal.

Pub. Util. Code § 11531, et seq. Since its formation,

EBMUD has gained control of the lower Mokelumne

River through the construction and operation of dams

and reservoirs to provide water for approximately 1.2

million residents of Alameda and Contra Costa Counties.

Its aquaducts bring water more than 90 miles across the

San Joaquin Valley from Pardee Reservoir, EBMUD’s

principal water source. Camanche Dam, located ten miles

downstream from Pardee Dam on the Mokelumne, facili-

tates the District’s use of Pardee Dam by providing flood

control and the storage capacity required to supply other

water rights holders. Camanche Dam allows the District

to exercise its water rights and contracts for up to

325,000,000 gallons of water daily from Pardee Reservoir.

EBMUD’s water system budget for the 1993-94 fiscal year

is more than $270,000,000.

The Facility is located in the Sierra foothills east of

Stockton, California, on the eastern bank of Camanche

Reservoir. In the early 1960’s, EBMUD acquired a portion

of the Penn Mine property through condemnation from

New Penn Mines, Inc., in the course of building the

Camanche Dam and Reservoir. By acquiring the property

along the waterline of Camanche Reservoir, EBMUD is

free to vary the water levels behind Camanche Dam to

suit its storage needs.

At the time of acquisition, the property was the site

of an abandoned copper and zinc mine. It was and still is

covered with exposed mine tailings, reactive waste rock

and excavated ores. When exposed to air and water, the

tailings, waste rock and ores form “acid mine drainage.”

Acid mine drainage can, in turn, dissolve or “leach”

metals such as aluminum, cadmium, arsenic, lead, cop-

per, and zinc. In the concentrations historically found in

the river adjacent to the site, those metals are toxic to

many forms of aquatic life. Once dissolved, those heavy

metals can also precipitate out of the leachate to form

toxic sediment.

When EBMUD suddenly released a large quantity of

water from Pardee Dam in 1977, the flow washed acid

mine drainage and metals-laden sediment that had been

deposited downstream from Penn Mine into the Cam-

anche Reservoir and beyond. The toxic, chocolate-brown

flow killed tens of thousands of fish.

The 1977 release was not the first instance of water

quality problems attributable to acid mine drainage from

the site. In the course of prior unsuccessful enforcement

efforts against the mine owner, the Regional Board

required New Penn Mines, Inc. to obtain a National Pol-

lution Discharge Elimination System permit.

Similarly, in response to the 1977 disaster, the

Regional Board issued a cleanup and abatement order

pursuant to California Water Code § 13304(a), directing

EBMUD to remedy the polluting conditions at the site.’

1 Section 13304(a) requires persons to take remedial action

if they have discharged waste into California waters, deposited

The order is reproduced in Respondent’s Appendix at

A4-A6. In accordance with a subsequent order, the Facil-

ity was constructed in 1978 by EBMUD and the Regional

Board, partly on EBMUD’s property. At the time that

EBMUD and the Regional Board contemplated action to

comply with the abatement order, the Clean Water Act

prohibited the discharge of pollutants from a point source

into navigable waters without a permit.

The Facility is a contained system of ponds or

impoundments designed to collect, store, evaporate, and

occasionally discharge leachate. It is depicted on the dia-

gram included in Petitioners’ Appendix at A62. Con-

structed berms attempt to divert the waters of Mine Run

and Hinkley Run creeks around the mine site and into

Camanche Reservoir. During rainy weather, surface flows

from the mine site itself (including land owned by

EBMUD) are collected and channelled into Mine Run

Dam Reservoir. The reservoir was designed to capture

and store the runoff so that it could evaporate. To

enhance that evaporation, the former streambeds of Mine

Run and Hinkley Run creeks were transformed into two

series of cascading impoundments, through which leach-

ate flows downhill into Mine Run Dam Reservoir. A

pump then recirculates leachate from the reservoir back

to the upper impoundments in what used to be Mine Run

creek, from where it gradually returns to the reservoir

again. The upper impoundments, as well as the walls of

waste where it will likely be discharged, or created a nuisance or

condition of pollution.

the reservoir, consist of reactive tailings and waste rock

from the site.?

Lacking enough storage capacity to contain the run-

off produced over a typical winter rainy season, the Facil-

ity periodically discharges untreated effluent into the

Mokelumne River through a spillway and valve located

at the dam. When discharging, the Facility acts as a

conduit conveying runoff collected from the site directly

into the river.

EBMUD designed and built the dam and reservoir.

As EBMUD’s partner, the Regional Board was responsible

for building and maintaining a major portion of the Facil-

ity, including the upper impoundments, creek diversion

structures and recirculation system. The Regional Board

purchased the pump and pipe, pays the operating costs of

the pump and regularly receives land use permits from

the District for the portion of the Facility that is located

on land owned by EBMUD.

After the Facility was built, the District and Regional

Board entered into a formal Memorandum of Under-

standing (“MOU”) that established the two agencies’

respective rights and responsibilities for the operation of

the Facility. The 1979 MOU is reproduced in the Respon-

dent’s Appendix at A7-A10. It acknowledges that both

2 The district court concluded that although disputes of

material fact precluded the entry of summary judgment in favor

of the Committee on the additional ground that the Facility’s

recirculation and ponding system increased the production of

acid mine drainage at the site, the Committee presented “ample

evidence” that such was the case. Petitioners’ Appendix at A39,

n. 20.

agencies planned that “releases of waters from the impound-

ment reservoir [would] occur periodically.” Respondent's

Appendix at A9. The MOU further provides that the “quan-

tity and timing of planned releases” of acid mine drainage

are subject to the “mutual agreement” of EBMUD and the

Regional Board. Id. Thus, the consent of the Regional Board

is required for every discharge from the Facility.

In accordance with the MOU, an average of over 19

million gallons of contaminated water per year was dis-

charged through controlled releases and uncontrolled

spills from the discharge valve and spillway into the

Mokelumne River between 1976 and the onset of Califor-

nia’s drought in 1986. Despite those spills and releases,

petitioners have doggedly maintained that they, unlike

the former land owner, are free to discharge whatever

and whenever they choose. Nevertheless, that steady pat-

tern of releases and spills became the focus of federal

regulatory concern. In September 1990, the Environmen-

tal Protection Agency (“EPA”), acting pursuant to Section

304(1) of the Clean Water Act, 33 U.S.C. § 1314(1), deter-

mined that the Facility was a “point source” impairing

the Mokelumne River, and therefore a permit was neces-

sary for any discharges. That determination was made

over the same objections petitioners raise in this Court.

During the drought, there were no further discharges

from the Facility, but the usual releases resumed with the

return of normal rainfall last winter. When those dis-

charges appeared imminent in February, 1993, EPA issued

an emergency order directing EBMUD to mitigate the

impacts of the releases from the Facility, which ultimately

totalled millions of gallons. EPA’s “Findings of Violation

and Order” was issued under Sections 308(a) and 309(a)

of the Act, 33 U.S.C. §§ 1318(a) and 1319(a), respectively,

based upon its determination that the discharges from the

Facility violated the Act’s permit requirements. That

order was subsequently revised several times.

At no time prior to the court of appeals’ decision did

petitioners ever apply for a permit authorizing their dis-

charges from the Facility.

B. Litigation History

This action was brought by the Committee under the

citizen suit provision of the Act in Section 505(a)(1), 33

U.S.C. § 1365(a)(1). On March 3, 1993, the District Court

for the Eastern District of California granted the Commit-

tee’s motion for partial summary judgment as to the

petitioners’ violation of Section 301(a) of the Clean Water

Act, which provides that the “discharge of any pollutant

by any person” without, inter alia, an NPDES permit

pursuant to Section 402(a) is illegal. Petitioners’ Appen-

dix at A64.

On petitioners’ appeal, the Ninth Circuit subse-

quently affirmed, concluding that District Judge Karlton’s

“well-written [and] well-reasoned” decision correctly

held the petitioners liable under the Clean Water Act for

discharging pollutants without a permit. Petitioners’

Appendix at A2. Petitioners’ subsequent request for

rehearing or rehearing en banc was denied.

REASONS FOR DENYING THE PETITION

I. Summary of Argument

The petitioners offer no substantial reason, under

Supreme Court Rule 10.1 or any other provision of law,

why this Court should grant review. The Ninth Circuit's

opinion applies established principles defining what con-

stitutes the addition of a pollutant to navigable waters

from a point source for purposes of Section 301(a)’s pro-

hibition. In applying those principles, the court of

appeals appropriately considered the special features of

the Facility that distinguish it from the wide variety of

equipment and structures addressed in other decisions

concerning the Act’s permit requirement, and it applied

those principles consistent with EPA’s independent

assessment of the Facility.

The analysis by which the Ninth Circuit concluded

that the discharges here require a permit does not, either

directly or by implication, conflict with the District of

Columbia Circuit’s affirmance of EPA’s regulatory treat-

ment of a fundamentally different project and distinct

pollutants in National Wildlife Federation v. Gorsuch, 693

F.2d 156 (D.C. Cir. 1982). No conflict between the courts

of appeal can be conjured up from the Ninth Circuit's

unremarkable conclusion that this leachate collection sys-

tem is not identical to a conventional dam.

In concluding that EBMUD and the Regional Board

are obliged to obtain an NPDES permit for their

unauthorized discharges, the Ninth Circuit also correctly

applied the broad scope of liability under Section

505(a)(1) of the Act, which makes “any person (including

(i) the United States, and (ii) any other governmental

instrumentality or agency to the extent permitted by the

eleventh amendment to the Constitution)” subject to suit.

The petition asserts that the Ninth Circuit has mis-

construed the Clean Water Act by failing to recognize an

implied exception to its unambiguous language which

petitioners claim can be extrapolated from the Compre-

hensive Environmental Response, Compensation, and

Liability Act (“CERCLA”).

But no such exemption exists, and the lack of any

statutory immunity for state agencies (much less a utility

district acting to comply with an enforcement order

directed against it) in the Clean Water Act reflects a

choice by Congress that none is appropriate here. Even

under the exception provided in CERCLA, the peti-

tioners’ proprietary roles as partners in the offending

_discharges would render each of them liable in this

instance.

Il. Argument

The overriding objective of the Clean Water Act is “to

restore and maintain the chemical, physical and biolog-

ical integrity of the Nation’s waters.” 33 U.S.C. § 1251(a).

Section 301(a) of the Act prohibits all discharges of pollu-

tants to waters of the United States from identifiable

sources (called “point sources”), except under specified

conditions. 33 U.S.C. § 1311(a). Section 402 establishes a

comprehensive scheme known as the National Pollution

Discharge Elimination System (“NPDES”) for regulating

the discharge of pollution otherwise prohibited by Sec-

tion 301(a). 33 U.S.C. § 1342; Trustees for Alaska v. E.P.A.,

749 F.2d 549, 553 (9th Cir. 1984); see generally E.P.A. v.

California ex rel. State Water Resources Control Board, 426

U.S. 200, 205 (1976); Westvaco Corp. v. E.P.A., 899 F.2d

1383, 1384-87 (4th Cir. 1990). The NPDES permit is the

critical mechanism by which general effluent limitations

and other water quality standards are translated into

enforceable obligations that control specific discharges.

E.P.A. v. California, 426 U.S. at 205.

The facts and the relevant judicial precedent show

that the Ninth Circuit was squarely within established

law in affirming the district court’s holding that the dis-

charges from the Facility require an NPDES permit.

Although petitioners would have it otherwise, discharges

from similar waste water collection systems, even those

containing instream treatment ponds, have been judi-

cially held subject to the permit requirements of the Act.

There is no conflict among the courts of appeal as to that

interpretation of the Act.

A. The Facility Discharges Pollutants From Point

Sources That Must Be Regulated By An NPDES

Permit

1. The Clean Water Act

Under the Act, the term “discharge of a pollutant” is

defined as “any addition of any pollutant to navigable

waters from a point source.” 33 U.S.C. § 1362(12). In its

regulations interpreting the Act, EPA has more speci-

fically defined “discharge of a pollutant” to include “sur-

face runoff which is collected or channelled by man.” 40

C.F.R. § 122.2. “Pollutants” include biological materials

and municipal, industrial or chemical wastes such as acid

mine drainage. 33 U.S.C. § 1362(6). Here, contaminated

leachate is collected by the Facility, channelled into the

reservoir and thereafter released through the spillway

and discharge valve at the dam. Under 40 C.F.R. § 122.2,

the Facility “discharges pollutants” into the Mokelumne

River.

A point source is defined to be “any discernable,

confined and discrete conveyance, including but not lim-

ited to any pipe, .. . channel, . . . [or] conduit . . . from

which pollutants are or may be discharged.” 33 U.S.C.

§ 1362(14). As the district court found, and the court of

appeals confirmed, the discharge valve and spillway on

the dam are such conveyances through which pollutants

flow into the river. Discharges from the Facility thus

constitute the addition of pollutants from a point source

to navigable waters without an NPDES permit, and as

such are prohibited by Section 301(a) of the Act.

2. EPA’s Construction of the Act

Pursuant to Section 304(1), EPA is required to identify

the impaired waters of California, including those waters

that are not expected to achieve applicable water quality

standards “due entirely or substantially to discharges

from point sources of any [priority] toxic pollutants.” 33

U.S.C. § 1314(1)(1)(B). EPA has identified the Mokelumne

River as an impaired body of water, and has identified

the Facility as the only point source of toxic pollutants

responsible for impairing the river.%

3 EPA re-assumed exclusive permitting authority for the

Facility based upon the failure of the petitioners to submit an

EPA’s “Response to Comments” on its decision to list

the Facility as a point source under Section 304(1) of the

Act concluded that “EBMUD has the duty to apply for an

NPDES permit governing discharges from point sources

at [the dam and reservoir].” The relevant portion of the

Response to Comments is produced in the Respondent's

Appendix at Al11-A17.

EPA’s emergency action responding to the 1993 spills

reaffirmed its determination that discharges from the Facility

require an NPDES permit. By an order issued in April, 1993

pursuant to Sections 308(a) and 309%(a) of the Act, EPA

directed EBMUD to reduce inflow into the reservoir and

mitigate the impacts of further point source releases from the

Facility. The most recent version of EPA’s Order, dated June

16, 1994, is reproduced in the Respondent’s Appendix at

A18-A33. The order states “[t]he discharge valve and spill-

way on the dam are ‘point sources,’ ” and that EBMUD “has

discharged ‘pollutants’ ” from them. Respondents Appendix

at A20.

3. The Case Law

The Ninth Circuit’s decision here is squarely in line

with settled precedent recognizing that the Act prohibits

unregulated discharges of pollutants from confined waste

collection systems like the Facility. E.g., United States v.

Earth Sciences, Inc., 599 F.2d 368, 374 (10th Cir. 1979)

(discussed below); O’Leary v. Moyer’s Landfill, Inc., 523 F.

individual control strategy adequate to regulate the discharges

from the Facility so that the Mokelumne River could meet water

quality standards within three years. See 33 U.S.C.

§ 1314(1)(1)(D).

Supp. 642, 655 (E.D. Pa. 1981) (leaks from landfill leachate

collection system, emanating from landfill’s overflowing

ponds, collection tank bypasses, cracks and defects, gul-

lies, trenches, and ditches, were point source discharges);

Hudson River Fishermen’s Ass’n v. City of New York, 751 F.

Supp. 1088, 1101-02 (S.D.N.Y. 1990) (discharge of chlorine

and alum floc into a reservoir on a navigable river as a

result of adding chlorine and alum to water pumped from

another river required NPDES permit), aff'd, 940 F.2d 649

(2d Cir. 1991). That such systems could reduce pollution

did not eliminate the obligation to secure a permit for any

discharges.

In Earth Sciences, Inc., the Tenth Circuit found that

overflows and leaks from a collection system catching

leachate, rainfall and snowmelt runoff from a heap leach

mining operation constituted point source discharges

under the Act. 599 F.2d at 374. The impoundment system

at the Facility is similar to the leachate collection and

circulation system in Earth Sciences, which utilized a

“sump pit,” defined as “a pit at the lowest point in a

circulating or drainage system,” as part of its closed

circulation system. Id. The court found that “when [that

system] fails because of flaws in the construction or inad-

equate size to handle the fluids utilized, with resulting

discharge, whether from a fissure in the dirt berm or

overflow of a wall, the escape of liquid from the confined

system is from a point source.” Id. The analogous dis-

charges from the Facility reservoir caused by its inade-

quate capacity or flaws in its construction are similarly

point source discharges.

Moreover, the fact that some of the polluted waters

or acid mine drainage in the reservoir may enter the

nn -

impoundment system from outside the Facility* does not

relieve the petitioners from liability. Contaminated sur-

face runoff, once channeled or collected, constitutes a

point source discharge regardless of the fact that the

waters may originate as rainfall. Sierra Club v. Abston

Construct. Co., Inc., 620 F.2d 41, 44-45 (5th Cir. 1980)

(“surface runoff from rainfall, when collected or chan-

neled by coal miners in connection with mining activities,

constitutes point source pollution”); see also Trustees for

Alaska, 749 F.2d at 558, in which the Ninth Circuit

adopted the Tenth Circuit’s reasoning from Earth Sciences,

Inc., to determine that discharges from a sluice box used

in placer mining operations were point source discharges:

“point sources and nonpoint sources are not distin-

guished by the kind of pollution they create or by the

activity causing the pollution, but rather whether the

pollution reaches the water through a confined, discrete

conveyance.” That same rule applies here.

Whether petitioners are solely responsible for the

pollutants that the Facility collects and discharges is irrel-

evant; it is sufficient that they control the ultimate dis-

charge. In Friends of Sakonnet v. Dutra, 738 F. Supp. 623,

629-30 (D.R.I. 1990), the owner of a private septic system

was held liable for discharges of raw sewage into a river,

although others were responsible for originally produc-

ing the sewage flowing into the septic system.

4 It is undisputed that some of the polluted waters directed

into the reservoir originates as surface runoff from EBMUD’s

property. For example, some of the contaminated water is intro-

duced into the Facility through a diversion ditch constructed to

carry runoff from a tailings pile across EBMUD’s property. See

diagram, Petitioners’ Appendix at A62.

B. The Facility Is Not A Conventional Dam That

Merely Impounds Navigable Water

As the district court found, and the Ninth Circuit

affirmed, the Facility is a leachate collection system and

not simply a dam that does no more than store water for

future beneficial use. It was built to segregate polluted

waters, and to collect and contain them in a series of

impoundments culminating in the reservoir. A pumping

system was installed to maximize evaporation and stor-

age capacity. None of those features is part of a water

storage dam.

EPA, the district court and the court of appeals all

agreed that those functions distinguish the Facility from

conventional dams. Accordingly, they all found that

because the Facility is a leachate collection system, its

discharges of acid mine drainage collected and chan-

nelled from the site are subject to the permitting require-

ments of the Act. As petitioners have done without

success at each stage of this litigation, they argue once

more that because the Facility includes a dam and reser-

voir as part of the system, it must be analyzed as if it

were no more than a dam and reservoir.

In arguing that the Facility must be considered as

merely a storage dam, the petitioners posit that the Com-

mittee must prove that the Facility “adds” pollutants to

the leachate already contained in the reservoir in order for

the Facility to constitute a point source. In support of this

argument, petitioners rely on cases in which courts have

held that certain storage or hydroelectric dams that

merely impound the flow of navigable waters on a tem-

porary basis are not point sources for the purposes of the

Act. Those decisions approve EPA’s interpretation of the

Act by which the inevitable chemical, thermal and hydro-

logical effects of impounding water are not deemed to be

the addition of pollutants. E.g., National Wildlife Federation

v. Gorsuch, 693 F.2d 156 (D.C. Cir. 1982) (“dam-induced”

water quality changes, including low dissolved oxygen,

dissolved minerals and nutrients, water temperature

changes, sediment release and supersaturation associated

with impoundment are not “pollutants” added to a navi-

gable water from a point source); National Wildlife Federa-

tion v. Consumers Power Co., 862 F.2d 580 (6th Cir. 1988)

(operation of a hydroelectric dam which dismembers fish

moving through it from one navigable body of water to

another is not a point source adding pollutants to naviga-

ble water); U.S. ex rel. Tenn. Valley Authority v. Tennessee

Water Quality Control Bd., 717 F.2d 992 (6th Cir. 1983) (the

operation of a hydroelectric dam and flume on a naviga-

ble river causing water quality changes did not constitute

a point source of pollutants under the Act where there

was no claim that any “pollutants” were added to the

river by diversion into or through the flume), cert. denied,

466 U.S. 937 (1984); Missouri ex rel. Ashcroft v. Department

of the Army, 672 F.2d 1297 (8th Cir. 1982) (soil erosion and

reduction of oxygen content of water caused by release

from a hydroelectric dam did not constitute addition of a

“pollutant” from a point source).

Those cases are not controlling here because acid

mine drainage is not merely the by-product of storing

water that enters the reservoir as navigable water from

Mine Run and Hinkley Run creeks. Acid mine drainage

originating at the site> is present in the reservoir as the

result of its deliberate introduction through man-made

ditches and repeated re-introduction as a result of the

Facility’s recirculation system. That is sufficient to consti-

tute the addition of pollutants when site runoff is ulti-

mately released by the discharge valve or spillway, even

if mixed with leakage through the diversion berms on the

two creeks.

Notwithstanding its regulatory treatment of conven-

tional dams sustained in Gorsuch.* EPA concluded that

the Act requires a different result for the Facility. The

Facility should not be analyzed as if it were a conven-

tional dam.

EPA’s independent analysis confirms that, consistent

with Friends of Sakonnet, the fact that some acid mine

drainage may be present in undiverted creek flows enter-

ing the facility is irrelevant:

5 Any “navigable water” that may be present in the reser-

voir as a result of the Facility’s unsuccessful diversion of

Hinkley and Mine Run Creeks is mixed with water entering the

Facility’s impoundments as groundwater, seepage, or surface

runoff, which is not navigable water. The resulting discharge

from the reservoir undisputedly includes non-navigable waters

introduced for the first time into the navigable waters of the

river.

gorically immune from the Act’s permit requirements. Gorsuch,

693 F.2d at 165, n.22 (“a dam can, in some circumstances, be a

‘point source’”). The Gorsuch court also confirms that its holding

is not inconsistent with the analyses of different circumstances

in Earth Sciences and Abston Construction that channelized sur-

face runoff discharged into navigable water constitutes the

addition of pollutants from a point source. Id. at 175, n.58.

The fact that the major source of pollutants in

the [reservoir] is leachate from tailings located

predominately on property not owned by

EBMUD is an insufficient reason to omit

EBMUD’s point source discharges from the sec-

tion 304(1)(1)(C) source list. NPDES permits rou-

tinely regulate point sources (e.g., publicly

owned treatment works, privately owned treat-

ment works, and storm water dischargers)

which discharge pollutants originally generated

on property owned by persons other than the

permit holder. See 40 C.F.R. 133, regarding pub-

licly owned treatment works; and 40 C.FR.

122.26, regarding storm water dischargers.

Respondent’s Appendix at A16.

Petitioners’ insistence that the Facility can only be

analyzed as if it were a conventional dam also treats the

presence of any navigable waters in the reservoir as a

talisman which absolves petitioners of the obligation to

obtain a permit for their subsequent discharges of those

waters. Here again, a waste collection facility (such as the

Facility) which contains navigable waters is nonetheless

subject to the requirements of the Act. West Virginia Coal

v. Reilly, 728 F. Supp. 1276, 1281 (S.D.W.Va. 1989), aff'd

mem., 932 F.2d 964 (4th Cir. 1991).

In West Virginia Coal, the court affirmed EPA’s

authority to issue NPDES permits for instream treatment

ponds used to collect channeled runoff from coal mine

waste fill. Like the Facility’s impoundments, the treat-

ment ponds were “generally . . . constructed by filling the

stream at a designated location with earth and rock to

create an embankment or cam which causes the water to

pond.” Id. at 1281. As in the present case, “[t]he primary

purpose of the pond is to allow sediment suspended in

the runoff to ‘settle out’ of the water. The water is then

discharged from the pond back into the existing stream

through an outlet.” Id. Significantly, it was undisputed by

the parties in West Virginia Coal that the discharges from

the treatment pond into the stream required an NPDES

permit. Id. EPA’s analysis of the waste treatment pond in

West Virginia Coal as an instream treatment system rather

than a conventional dam supports the Ninth Circuit’s

conclusion here for a similar project.

C. The Language of the Clean Water Act And Its

Legislative History Demonstrate That Even

State Agencies Acting As Polluters Are Subject

To Suit

The petition argues that, even if discharges from the

Facility are subject to Section 301(a), EBMUD and the

Regional Board cannot be made to comply with the Act’s

permit requirement. That argument proceeds without any

support from the language or legislative history of Sec-

tions 301(a) and/or 505(a) of the Clean Water Act. It is

constructed, instead, of policy —- petitioners postulate that

a greater number of abatement efforts, even ones not in

compliance with regulatory requirements, would better

serve the quality of the nation’s waters than fewer abate-

ment efforts that meet all applicable environmental stan-

dards. Whatever the merits of that postulate may be,

however, they are irrelevant here because Congress has

chosen a different path — a choice that only Congress has

the power to undo. Tennessee Valley Authority v. Hill, 437

U.S. 153, 194 (1978) (the wisdom of a course clearly

chosen by Congress is not subject to judicial second-

guessing); see Miller v. Youkam, 440 U.S. 125, 141 n.21

(1979) (issues of legislative policy are “better addressed

to the wisdom of Congress than to the judgment of this

Court”), quoting Marquette Nat'l Bank v. First of Omaha

Service Corp., 439 U.S. 299, 319 (1978).

Congress clearly contemplated that those to be held

accountable for compliance with effluent standards or

limitations under the Act could include state or local

government, as well as other public entities such as util-

ity districts, rather than private industry alone. At the

same time the Act created a division of responsibility

between the States and federal government to control

pollution, Congress also provided that any arm of state or

local government subject to the constitutional power of

federal courts was made subject to citizen suits under the

Act where there was a violation of effluent standards or

limitations.

1. The Act’s Unambiguous Language Con-

firms That There is no Shield for the States

Acting as Private Polluters

The Act does indeed speak directly to the liability of

the State and its subdivisions in this instance. In Section

505(a), the only limitations on liability acknowledged by

Congress covering those actually in violation of an efflu-

ent standard or limitation”? are the constitutional con-

straints independently imposed by the Eleventh

7 Section 505(f), 33 U.S.C. § 1365(f), defines an “effluent

standard or limitation” to include any “limitation” under Sec-

tion 301. There is no “violation of an effluent standard or limita-

tion” for purposes of Section 505(a)(1), however, where a state

Amendment. The Act creates no limitations whatsoever

upon the remedial jurisdiction of a district court to

“enforce .. . an effluent standard or limitation” against

“any person... in violation of . . . an effluent standard or

limitation under this chapter.” 33 U.S.C. § 1365(a). “Per-

son” is defined, in turn, by Section 502(5) of the Act, 33

U.S.C. § 1362(5), to include any “individual, corporation,

partnership, association, State, municipality, commission

or political subdivision of a State or any interstate body.”

By its terms, that liability embraces both petitioners.

The broad sweep of remedial liability in Section

505(a) was an integral part of the Act when it was passed

regulatory agency that is not a discharger itself merely fails to

take enforcement action to stop pollution by third parties. See,

for example, Ringbolt Farms Homeowners Ass'n v. Town of Hull,

714 F. Supp. 1246, 1256 (D. Mass. 1989). That limitation of lia-

bility does not apply, however, “to the extent that the state is an

actual discharger of pollutants in violation of the Act.” Id. at

1253.

The district court found, as a matter of undisputed fact, that the

Regional Board exercised “ ‘control,’ ‘authority,’ and ‘affirma-

tive actions’ over discharges at the Penn Mine facility,” as well

as contractual veto power over each discharge. Petitioners’

Appendix at A42-A44. That active role was sufficient to render

the Regional Board liable under the Act as an actual discharger

rather than an unresponsive enforcer. EBMUD’s new argument

that it is also entitled to treatment as a non-discharging state

regulatory agency fails as a result of its similar control and

authority over discharges here, coupled with its principal own-

ership of the Facility itself.

in 1972,8 and it remained essentially the same through the

major overhaul of the Act in 1987.

Section 301(a)’s prohibition of discharges without a

permit is equally broad, providing that such a discharge

by “any person” is unlawful. Like the citizen suit provi-

sion, the Act’s permit requirement was a long-standing

feature of the legislation at the time the Facility was

designed and built. 86 Stat. 816, 844; see Arkansas v. Okla-

homa, 112 S.Ct. 1046, 1054 (1992).

In light of the statute itself, there is no basis for

petitioners’ claim that Congress did not understand that

“polluters” might include public agencies. On the con-

trary, the Senate Committee on Public Works explicitly

affirmed that the all-inclusive language of Section 301(a)

conveys the judgment that, “No one has the right to

pollute.” S. Rep. No. 414, 92nd Cong., 1st Sess. 43 (1971).

That judgment precludes petitioners’ claim that good

intentions grant them such a right.

2. That Congress Elected Not To Transplant

CERCLA’s Limitations on Liability for

Cleanup Costs to the Clean Water Act Dem-

onstrates That No Immunity Was Intended

The court of appeals noted that the statutory exemp-

tions that petitioners cite are found only in CERCLA, not

8 Section 505(a)’s citizen suit provision was also an integral

part of Pub. L. 92-500, 86 Stat. 816. It reflects the purpose of the

1972 legislation to facilitate enforcement against dischargers. 86

Stat. 816, 888. E.P.A. v. California ex rel. State Water Resources

Control Board, 426 U.S. at 204.

in the Clean Water Act. Because those exemptions do not

apply here by their own terms, reasoned the court of

appeals, they could not rescue the petitioners from lia-

bility for their failure to comply with the Act’s permit

requirement.

The proposition that Congress desired to grant

immunity from the duty to comply with applicable efflu-

ent standards or limitations for state regulatory agencies,

based upon the different exemptions added to CERCLA

as part of the 1986 amendments? is refuted by the failure

of Congress to actually incorporate any such exemption

into Sections 505(a) or 301(a) of the Clean Water Act

9 Sections 101(b) and 107(c) of the Superfund Amendments

and Reauthorization Act of 1986, Pub. L. 99-499, 100 Stat. 1613,

added the liability limitations to CERCLA upon which peti-

tioners rely. 100 Stat. 1615 and 1629. The exemption that peti-

tioners claim is implied in the Clean Water Act, however, is

broader than that afforded by CERCLA.

CERCLA’s exemption applies to cleanup costs recoverable

under the statute or other financial liability, not to compliance

with regulatory requirements. Section 107(a) of CERCLA, 42

U.S.C. § 9607(a) extends the liability for such costs to “the owner

and operator .. . of a facility.” Section 107(d), 42 U.S.C. § 9607,

confers immunity upon those rendering non-negligent care,

assistance, or advice in accordance with the National Contin-

gency Plan. Section 101(20)(D), 42 U.S.C. § 7601(20)(D), also

excludes from those liable units of state and local government

involuntarily acquiring ownership of property in their role as

sovereigns.. The latter specifically excludes any protection for

such agencies where they cause or contribute to a release of

hazardous substances.

The petitioners’ deliberate discharge of toxic pollutants

from a site voluntarily acquired by EBMUD for proprietary

purposes would not qualify for any exemption, as discussed in

the text below.

when it was amended the following year. The silence of

the 1987 amendments to the Clean Water Act regarding

immunity for regulatory agencies must be presumed to

reflect Congressional knowledge of the liability excep-

tions provided for such agencies in CERCLA the year

before. Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990);

Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184-85

(1988). The differences between the two statutes main-

tained by the 1987 amendments to the Clean Water Act

cannot be judicially swept aside without violating Justice

Scalia’s admonition in West Virginia University Hospitals,

Inc. v. Casey, 499 U.S. 83, 101 (1991) that, “it is not our

function to eliminate clearly expressed inconsistency of

policy, and to treat alike subjects that different Con-

gresses have chosen to treat differently.” Petitioners ask

this Court to do no less.

Those principles confirm the conclusion of the court

of appeals that: “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 were liable under the Act.”

Petitioners’ Appendix at All (emphasis in original).

D. Even If the CERCLA Exemptions Applied To

Citizen Suits Under the Clean Water Act, The

Regional Board Would Still Be Liable.

Petitioners’ plea to create a judicial exception to the

Clean Water Act’s liability scheme fails to acknowledge

the district court’s alternative ruling that the CERCLA

exemptions would not be sufficient to avoid liability as a

question of fact, even if they applied. Petitioners’ Appen-

dix at A50-A51. Denying the application of CERCLA’s

exemptions in this instance as a matter of law works no

injustice.

Under CERCLA, an agency that controls polluting

activity may indeed be liable for cleanup costs, notwith-

standing its separate function as an environmental regu-

lator. See, U.S. v. Stringfellow, 31 E.R.C. 1315, 1320 (C.D.

Cal. 1990) (state liable based upon involvement with site

and release). Because the Regional Board (and EBMUD)

are much more than passive agency bystanders here,

petitioners’ argument that they would be immune from

any judicial remedy under CERCLA proceeds from a

factual premise already determined by the district court

to be “faulty.” Petitioners’ Appendix at A50. Petitioners

never appealed that factual determination.

CONCLUSION

The determination shared by EPA and both courts

below that there is indeed a violation of an emission

standard or limitation here flows directly from the appli-

cation of established precedent defining what discharges

are subject to Section 301(a)’s prohibition to the particular

(and perhaps unique) circumstances of this case. _

Nevertheless, petitioners insist that they should

remain free to discharge whatever and whenever they

like. The Mokelumne River must be sacrificed, they say,

to ratify well-intentioned but misguided efforts to reduce

water pollution undertaken as part of EBMUD’s role as a

private landowner and holder of water rights on the

river. That is not what Congress mandated — the obliga-

tion to comply with the Clean Water Act is not nullified

by good intentions where a violation of an effluent stan-

dard or limitation exists. No new exemption to that judg-

ment should be created in this case.

DATED: August 24, 1994.

Respectfully submitted,

Apria Y. LAROosE

WILuiAM S. Curtiss

SrerrA Cius LeGat Derense FUND

180 Montgomery Street, 14th Fl.

San Francisco, CA 94104

(415) 627-6700

Attorneys for Respondent Committee

to Save the Mokelumne River

UNITED STATES CODE SERVICE

TITLE 33. NAVIGATION AND NAVIGABLE WATERS

CHAPTER 26. WATER POLLUTION

PREVENTION AND CONTROL

STANDARDS AND ENFORCEMENT

33 USCS § 1314

§ 1314. Information and guidelines [FWPCA § 304]

(1) Individual control strategies for toxic pollutants

(1) State list of navigable waters and development of

strategies

Not later than 2 years after February 4, 1987, each

State shall submit to the Administrator for review,

approval, and implementation under this subsection -

(A) a list of those waters within the State

which after the application of effluent limita-

tions required under section 1311(b)(2) of this

title cannot reasonably be anticipated to attain

or maintain (i) water quality standards for such

waters reviewed, revised, or adopted in accor-

dance with section 1313(c)(2)(B) of this title, due

to toxic pollutants, or (ii) that water quality

which shall assure protection of public health,

public water supplies, agricultural and indus-

trial uses, and the protection and propagation of

a balanced population of shellfish, fish and

wildlife, and allow recreational activities in and

on the water;

(B) a list of all navigable waters in such

State for which the State does not expect the

applicadie standard under section 1313 of this

title will be achieved after the requirements of

sections 1311(b), 1316, and 1317(b) of this title

are met, due entirely or substantially to dis-

charges from point sources of any toxic pollu-

tants listed pursuant to section 1317(a) of this

title;

waters included on such lists, a determination of

the specific point sources discharging any such

toxic pollutant which is believed to be prevent-

ing or impairing such water quality and the

amount of each such toxic pollutant discharged

by each such source; and

(D) for each such segment, an individual

control strategy which the State determines will

produce a reduction in the discharge of toxic

pollutants from point sources identified by the

State under this paragraph through the estab-

lishment of effluent limitations under section

1342 of this title and water quality standards

under section 1313(c)(2)(B) of this title, which

reduction is sufficient, in combination with exis-

ting controls on point and nonpoint sources of

pollution, to achieve the applicable water qual-

ity standard as soon as possible, but not later

than 3 years after the date of the establishment

of such strategy.

(2) Approval or disapproval

Not later than 120 days after the last day of

the 2-year period referred to in paragraph (1),

the Administrator shall approve or disapprove

the control strategies submitted under para-

graph (1) by any State.

(3) Administrator’s action

If a State fails to submit control strategies in

accordance with paragraph (1) or the Adminis-

trator does not approve the control strategies

submitted by such State in accordance with

paragraph (1), then, not later than 1 year after

the last day of the period referred to in para-

graph (2), the Administrator, in cooperation

with such State and after notice and opportunity

for public comment, shall implement the

requirements of paragraph (1) in such State. In

the implementation of such requirements, the

Administrator shall, at a minimum, consider for

listing under this subsection any navigable

waters for which any person submits a petition

to the Administrator for listing not later than

120 days after such last day.

CALIFORNIA REGIONAL WATER

QUALITY CONTROL BOARD

CENTRAL VALLEY REGION

CLEAN-UP AND ABATEMENT ORDER

FOR

EAST BAY MUNICIPAL UTILITY DISTRICT

CALAVERAS COUNTY

The California Regional Water Quality Control Board,

Central Valley Region, (hereafter Board) finds that:

The East Bay Municipal Utility District (EBMUD)

owns and operates Camanche Lake, located on the

Mokelumne River immediately below Pardee Dam.

Current drought conditions have resulted in abnor-

mally low water levels in Camanche Lake to the

extent that the upper one-third of ‘ne Lake bottom is

exposed. Included in the exposed areas is Oregon Bar,

a natural gravel bar of the Mokelumne River which

was formed prior to construction of Camanche Dam.

Investigation by the Department of Fish and Game

and Regional Board staff demonstrates toxic levels of

copper and zinc to be present throughout Oregon Bar

as a result of downstream moving sediments originat-

ing from the Penn Mine Property.

The beneficial uses of Camanche Lake and

Mokelumne River, include: domestic and agricultural

supply; recreation; esthetic enjoyment; and preserva-

tion and enhancement of fish, wildlife, and other

aquatic resources.

An extensive salmon and steelhead hatchery is oper-

ated by the Department of Fish and Game on waters

from Lake Camanche.

The Department and Fish and Game and Regional

Board staff have determined it is highly probable that

major fish kills will occur in Lake Camanche and

downstream Mokelumne River waters due to high

reservoir inflows through exposed muds at Oregon

Bar and other upstream sources. Scouring flows will

resuspend sediments thereby introducing lethal con-

centrations of copper and zinc into the aquatic envi-

ronment. This has caused, and threatens to cause,

conditions of pollution and nuisance and unreasona-

bly affect the beneficial uses of Camanche Lake and

the Mokelumne River:

Section 13304(a) of the California Water Code states:

“Any person who discharges waste into the

waters of this state in violation of any waste

discharge requirement or other order issued by a

Regional Board or the State Board, or who inten-

tionally or negligently causes or permits any

waste to be discharged or deposited where it is,

or probably will be, discharged into the waters of

the state and creates, or threatens to create, a

condition of pollution or nuisance, shall upon

order of the Regional Board, clean up such waste

or abate the effects thereof or, in the case of

threatened pollution or nuisance, take other nec-

essary remedial action. Upon failure of any per-

son to comply with such Clean-Up or Abatement

Order, the Attorney General, at the request of the

Board, shall petition the superior court for that

county for the issuance of an injunction require-

ing such person to comply therewith. In any such

suit, the court shall have jurisdiction to grant a

prohibitory or mandatory injunction, either pre-

liminary or permanent, as the facts may war-

rant.”

IT IS HEREBY ORDERED, that pursuant to Section 13304

of the California Water Code, East Bay Municipal Utility

batwratdaedioe Ri tah Saves ~

A6é

District shall clean-up and abate the effects of toxic sedi-

ments contained in Camanche Lake as follows:

Initiate forthwith, corrective actions necessary to pre-

vent toxic levels of copper and zinc from polluting

waters of Camanche Lake and downstream waters

trom sediments now situated in the vicinity of Ore-

gon Bar and elsewhere as warranted.

Submit to the Board by 14 October 1977 a technical

engineering report describing (1) methods being used

and that will be used to achieve compliance with

Order Number 1 above; and (2) defines the areal

extent of toxic sediment.

Complete all work defined in Order Number 1 abeve

by 1 December 1977.

/s/ J. A. Robertson

JAMES A. ROBERTSON,

Executive Officer

MEMORANDUM OF UNDERSTANDING BETWEEN

CALIFORNIA REGIONAL WATER QUALITY

CONTROL BOARD, CENTRAL VALLEY REGION

CALIFORNIA DEPARTMENT OF FISH AND GAME

AND EAST BAY MUNICIPAL UTILITY DISTRICT

CONCERNING ABATEMENT OF POLLUTION FROM

NEW PENN MINES

The parties to the Memorandum of Understanding are

the California Regional Water Quality Control Board,

Central Valley Region, hereinafter called “Board,” the

California Department of Fish and Game, hereinafter

called “Fish and Game,” and the East Bay Municipal

Utility District, hereinafter called “District.”

The parties are mutually concerned with the threat of and

with actual pollution of the waters of the Mokelumne

River and of the District’s Camanche Reservoir by runoff

carrying heavy metals and other mineral pollutants from

a nonoperating mine owned by New Penn Mines, Inc.,

located adjacent to District’s Camanche Reservoir prop-

erty in Calaveras County.

The Board has taken various enforcement actions over

many years’ time in an effort to have the threat of pollu-

tion eliminated or abated by the owners of the New Penn

Mine, Inc., but such efforts have to date been unsuccess-

ful. Enforcement actions taken by the Board in 1977 and

1978 did not result in any responsive action by the mine

owners.

In 1977, the District removed toxic silts from Oregon Bar,

located within the District’s Camanche Reservoir at a

point close to the points of discharge from New Penn

Mine onto the District’s property. This action was

intended to eliminate the possibility of further pollution

of the waters of Camanche Reservoir and of the

Mokelumne River as increased flows began to pass by

and over the Oregon Bar when Camanche Reservoir’s

water surface elevation began to rise after the conclusion

of the 1976-77 drought.

In early 1978, the District and Board, with cooperation

from Fish and Game, undertook considerable construc-

tion work intended to divert uncontaminated runoff flow

away from and around contaminated areas of the New

Penn Mine, and to impound runoff from contaminated

areas of the mine in order to capture this flow and pre-

vent it from entering Camanche Reservoir. The Board and

District jointly undertook the engineering work required

for the works to divert uncontaminated runoff around

and away from contaminated areas of the mine. The

Board undertook work required to construct the various

works located above and on the mine site to divert the

uncontaminated runoff around and away from the mine,

including diversion channels, evaporation ponds, and

related work. The District undertook work required to

design and construct a dam and impoundment reservoir

on the District property at the mouth of Mine Run Creek

to capture runoff from the adjacent mine site.

All the work undertaken by the Board and by the District,

which is only generally described herein, was made pos-

sible by close cooperation between the Board, Fish and

Game, the District, and other affected state and federal

agencies. The work had to be accomplished in a very

short time period, using limited resources and under

restrictive physical conditions. The work had to be under-

taken after the beginning of the rainy season in the win-

ter of 1977-78, which limited the time during which

A Mee we Be bah ee So ak AR eed Da dalled

Tihs ID

construction work could be carried out. The works have

been essentially completed by the Board and the District.

In recognition of the facts which have been generally

summarized herein above, the parties hereto agree as

follows:

The parties understand and acknowledge that the

pollution abatement work hitherto performed by the

Board and District was originally undertaken and

was accomplished with the knowledge that it would

not provide a complete and comprehensive solution

to the threat of continued pollution emanating from

the New Penn Mine site. Rather, the work was

intended as an effort to achieve the best practicable

pollution abatement system consistent with available

time, resources, and money. The parties recognize

that releases of waters from the impoundment reser-

voir into Camanche Reservoir will occur periodically.

The quantity and timing of planned releases will be

subject to mutual agreement by the parties to this

Memorandum of Understanding.

The parties understand and acknowledge that the

threat of future pollution not met by the pollution

abatement system is caused by the site conditions of

New Penn Mine, and is not caused by or contributed

to by the nature, extent, design or construction of the

system.

The Board will continue to utilize its authority in

efforts to get the New Penn Mine, Inc., owners to

accept responsibility or be found liable for the pollu-

tion abatement work heretofore done, and for any

such work which may be required in the future. The

board will make every effort to continue to maintain

and operate those features of the pollution abatement

system constructed by the Board. The Board will con-

tinue to cooperate with the other parties and with

_—_—— aa

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other cognizant government agencies in efforts to

abate the pollution emanating from New Penn Mine.

The Board will also continue its efforts to recover

from the owners of the New Penn Mine the costs of

construction, operations and maintenance incurred by

the Board and the District.

4. Fish and Game will continue to cooperate with the

other parties in mutual efforts to identify, evaluate,

and control pollution problems or threats thereof

emanating from New Penn Mine.

5. The District will continue to cooperate with the

board, Fish and Game, and other cognizant agencies

in efforts to identify, evaluate, and control pollution

problems or threats thereof emanating from New

Penn Mine. In anticipation of an ultimate solution to

the Penn Mine problem (which will include complete

cost recovery by the District and the Board), the Dis-

trict will continue to operate and maintain those fea-

tures of the pollution abatement system constructed

by the District on District property.

CALIFORNIA REGIONAL WATER QUALITY CONTROL

BOARD

CENTRAL VALLEY REGION DATED: 23 March, 1979

By /s/ James Robertson

CALIFORNIA DEPARTMENT OF

FISH AND GAME

By /s/ Robert Lassen

EAST BAY MUNICIPAL UTILITY DISTRICT

By / s/ John Harnett

General Manager

[LOGO]

United States Environmental Protection Agency

Region 9

75 Hawthorn Street

San Francisco, CA 94105

EPA Response to Comments and Petitions Regarding

Listing Decisions for California Waters Under

Section 304 (i) of the Clean Water Act

Second Printing

* * *

Ill. EPA RESPONSE TO COMMENTS AND PETITIONS

CONCERN: MOKELUMNE RIVER

Comment #1 — California Sport Fishing

Protection Alliance

1) East Bay Municipal Utility District (EBMUD) should

be required to obtain a National Pollutant Discharge

Elimination System (NPDES) permit for discharge of

toxic metals into Camanche Reservoir.

Response: EPA concludes that Mokelumne River, at Cam-

anche Reservoir, should be included on the section

304(/)(1)(B) short list, and that point sources at the Mine

Run Dam and the Mine Run Dam Reservoir should be

included on the section 304(1)(1)(C) source list.

EPA has determined that EBMUD has the duty to apply

for an NPDES permit governing discharges from point

sources at the Mine Run Dam and Mine Run Dam Reser-

voir. Therefore, EPA will be preparing an individual con-

trol strategy (ICS) consisting of a draft NPDES permit, to

be held by EBMUD, with a schedule for issuing a final

permit, and documentation which shows that the controls

selected are appropriate and adequate.

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2) The Lower Mokelumne River is impaired by dis-

charge of EBMUD’s Camanche Reservoir which

resulted in a major fish kill of 20,000 steelhead trout

per day.

Response: The EPA agrees with the State of California that

the Lower Mokelumne River should be placed on the

304(1)(1)(A)(ii) long list because of water quality impair-

ments causing fish kills and the threat of fish population

declines. Of particular concern are the releases of waters

from Camanche Reservoir containing elevated levels of

hydrogen sulfide.

The EPA agrees with the State’s conclusion that a sub-

stantia! portion of the fishery resource problems are due

to East Say Municipal Utility District’s operation of Par-

dee and Camanche Reservoir (Memorandum from the

State Water Resources Control Board to Division of Water

Rights, June 11, 1990. “Operation of Pardee and Cam-

anche Reservoirs”). Specific recommendations have been

developed by the State Water Resources Control Board

for resolution of the problems in Lower Mokelumne River

mentioned by the commenter. These recommendations

include the establishment of a minimum pool elevation at

Camanche Reservoir, dissolved oxygen, temperature and

turbidity limits for reservoir discharges and the elimina-

tion of sudden high releases from Pardee Reservoir. The

EPA encourages the resolution of water quality issues by

State agencies for all waterbodies on the section

304(1)(1)(A)(ii) long list.

In addition, the EPA has determined that EBMUD is

responsible for the discharge of toxic metals from Mine

Run Dam Reservoir at the confluence of the Mokelumne

River and Camanche Reservoir and that this discharge

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results in exceedances of narrative water quality stan-

dards. Accordingly, the EPA concludes the Mokelumne

River above Camanche Reservoir should b- *~ cluded on

the section 304(/)(1)(B) short list.

CONCERN: MOKELUMNE RIVER, PARDEE

RESERVOIR, LAFAYETTE RESERVOIR

Comment #2 — East Bay Municipal Utility District

1) EBMUD objects to being identified as the owner of

the facility causing the condition in the Mokelumne

River, and being subject to an individual control

strategy. The sources of wastes are nonpoint sources

originating on property of the abandoned New Penn

Mine adjacent to property owned by EBMUD.

EBMUD has assisted the State in protecting the

Mokelumne River, including constructing an earthen

embankment to prevent the wastes from flowing

across EBMUD property and into the river. Run-off

enters the Mokelumne River from many locations in

the 450-acre drainage area. The State of California is

the appropriate lead agency and party responsible for

controlling the discharge of the nonpoint sources

onto EBMUD’s property.

Response: The New Penn Mine facility is located on two

adjacent properties, one of which is owned by EBMUD.

Several impoundments are located in the immediate

vicinity of New Penn Mine. One of the impoundments

and the dam creating it, the Mine Run Dam Reservoir and

the Mine Run Dam, is on the property of, and was built

by, EBMUD. EBMUD completed construction of the Mine

Run Dam Reservoir and the Mine Run Dam in 1978.

EBMUD designed the Mine Run Dam and the Mine Run

Dam Reservoir to act as a catchment and evaporation

pond for the runoff of heavy metal-laden, dilute sulfuric

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acid solutions from the mine wastes and ore produced at

the New Penn Mine facility.

EBMUD built the Mine Run Dam with a discharge valve

with hand crank controls located at its north end.

EBMUD operates and maintains the Mine Run Dam and

the Mine Run Dam Reservoir.

EBMUD and others cooperatively built other diversion

structures and dikes in the immediate vicinity of Penn

Mine, although not on property owned by EBMUD.

EBMUD and others built the diversion structures and

dikes concurrent with EBMUD’s construction of the Mine

Run Dam and the Mine Run Dam Reservoir. A pumping

station is used to pump contents of the Mine Run Dam

Reservoir to other impoundments in the vicinity of the

New Penn Mine. The pumping station is located on

EBMUD’s poy erty, although the cost of operation and

maintenance 0: pumping is paid for by the Central Valley

Regional Water Quality Control Board. An intended pur-

pose of the pumping from the Mine Run Dam Reservoir

to the other impoundments is evaporation. However, an

unintended side effect is additional leaching of heavy

metals and production of sulfuric acid from the ore and

tailings within the dikes of the impoundments.

EBMUD makes “controlled releases” from the Mine Run

Dam Reservoir into Camanche Reservoir. A staff report

prepared in 1988 for the Central Valley Regional Water

Quality Control Board indicates that, since 1978, con-

trolled releases into Camanche Reservoir occurred every

year (excepting dry or drought years 1985 and 1987) at a

rate of usually 100 gpm, ranging from approximately 20

to 300 gpm for varying periods during the wet seasons.

;

‘

PW Nn» it A RU Bah cL, Sl i i

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The report further indicated that: spills or uncontrolled

releases occurred during 1983 and 1986; the largest

uncontrolled release occurred for a period of 43 days in

1986 when solutions from the Mine Run Dam Reservoir

spilled out into Camanche Reservoir at a peak discharge

rate of over 1200 gpm; the 1986 discharge totaled over 96

acre-feet; and the release averaged over 500 gpm during

the 43 day period. As a result of the controlled and

uncontrolled discharges, the U.S. EPA freshwater quality

criteria for copper and zinc are frequently exceeded in

Camanche Reservoir near the Mine Run Dam Reservoir.

The major source of pollutants in the Mine Run Dam

Reservoir is leachate produced in tailings located pre-

dominantly on property not owned by EBMUD.

EBMUD holds no NPDES permit governing discharges

from the Mine Run Dam or Mine Run Dam Reservoir.

EBMUD is the owner and operator of a point source

through which EBMUD discharges pollutants. Notwith-

standing that it may result from such natural phenomena

as rainfall and gravity, the surface run-off of contami-

nated waters, once channeled or collected, constitutes

discharge by a point source. See, O’Leary v. Moyers Land-

fill, Inc. 523 F. Supp. 642, 655 (E.D. Pa. 1981), and Sierra

Club v. Abston Construction Co., 620 F.2d 41, 47 (5th Cir.

198). The Mine Run Dam and the Mine Run Dam Reser-

voir is a leachate collection system. When that leachate

collection system fails because of flaws in the construc-

tion or inadequate size to handle the fluids used, with

resulting discharge, whether from a fissure in the dirt

berm or overflow of a wall, the escape of liquid from the

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confined system is from a point source. See, Moyers Land-

fill, supra; U.S. v. Earth Sciences, Inc., 599 F.2d 368, 374

(10th Cir. 1979); and Hudson River Fishermen's Association

v. Westchester, 686 F. Supp. 1044 (S.D.N.Y. 1988). The

discharges here resulting from (1) “controlled releases”

through the discharge valve located at the dam’s north

end, and (2) “uncontrolled releases” such as overflows of

the Mine Run Dam Reservoir, constitute point source

discharges.

The fact that the major source of pollutants in the Mine

Run Dam Reservoir is leachate from tailings located pre-

dominantly on property not owned by EBMUD is an

insufficient reason to omit EBMUD’s point source dis-

charges from the section 304(/)(1)(C) source list. NPDES

permits routinely regulate point sources (e.g., publicly

owned treatment works, privately owned treatment

works, and storm water dischargers) which discharge

pollutants originally generated on property owned by

persons other than the permit holder. See: 40 C.F.R. 133,

regarding publicly owned treatment works; and 40 C.F.R.

122.26, regarding storm water discharges.

The fact that the original source of the pollutants dis-

charged by EBMUD may be from nonpoint sources

located predominantly on property not owned by

EBMUD likewise is an insufficient reason to omit

EBMUD’s point source discharges from the section

304(1)(1)(C) list. See: 40 C.F.R. 122.26, Storm Water Dis-

charges; Notice of Proposed Rule, National Pollutant Dis-

charge Elimination System Permit Application

Regulations for Storm Water Discharges, 53 Fed. Reg.

49,416, 49,430-32, 49,439-40 (Dec. 7, 1988); and City of

Detroit v. Michigan, 803 F.2d 1411, 1421 (6th Cir. 1986). The

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preamble to EPA’s rulemaking related to the section 304(1)

program confirms that stormwater discharges may be

listed pursuant to section 304(1). See, 54 Fed. Reg. 23,868,

23,883 and 23,884 (June 2, 1989).

EPA has not determined that EBMUD is the only person

that may have a duty to apply for an NPDES permit

governing the discharge of pollutants from the vicinity of

the New Penn Mine.

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UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY

REGION IX

IN THE MATTER OF: ) :

si ) Docket No.

East Bay Municipal

Utility District ) CWA-309-FY94-10

Mine Run Dam Reservoir ) FINDINGS OF

Calaveras County, ) VIOLATION AND

California ORDER FOR

u | COMPLIANCE

roceeding under )

Sections 308(a) and )

309(a) of the )

Clean Water Act, )

[33 U.S.C. §1318(a) '

and §1319(a)] )

STATUTORY AUTHORITY

The following Findings of Violation and Order is

issued to the East Bay Municipal Utility District

(“EBMUD”) under authority vested in the Administrator

of the United States Environmental Protection Agency

(“EPA”) under sections 308(a) and 309(a) of the Clean

Water Act (“Act”), 33 U.S.C. §§ 1318(a), 1319(a). This

authority has been delegated to the Regional Administra-

tor of EPA, Region IX, and by her, delegated to the

Director, Water Management Division, EPA, Region IX

(“Director”).

FINDINGS OF VIOLATION

The Director finds that EBMUD is in violation of

Section 301(a) of the Act, 33 U.S.C. §1311(a), for

unauthorized discharges of pollutants to waters of the

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United States. These Findings are made on the basis of

the following facts:

1. EBMUD is a municipal utility district established

under the laws of California, and is a “person” within the

definition set forth in Section 502(5) of the Act, 33 U.S.C.

§1362(5).

2. In 1978, EBMUD participated in the construction

of Mine Run Dam and Mine Run Dam Reservoir

(“MRDR”) in Calaveras County, California. Mine Run

Dam and most of MRDR are located on property owned

by EBMUD.

3. Mine Run Dam and MRDR, combined with a

series of smaller impoundments, and various drainage

ditches, pipes, valves, culverts and channels, are referred

to as the “Penn Mine facility”.

4. The Penn Mine facility is a contained collection

and treatment system for polluted runoff, acid mine

drainage, and leachate. The Penn Mine facility was

designed to capture, contain and evaporate polluted run-

off, acid mine drainage, and leachate through a ponding

and recirculation system, and to release such contami-

nated waters from the Mine Run Dam and MRDR

through a spillway and discharge valve into the

Mokelumne River and Camanche Reservoir.

5. The ponding and recirculation system collect and

concentrate polluted runoff and channel such runoff

through EBMUD’s property into MRDR. Some of the

contaminated surface water infiltrates to the ground

water, which flows toward Camanche Reservoir.

A20

6. Releases of contaminated water have occurred

through the discharge valve and through the spillway on

Mine Run Dam. Such releases have entered the

Mokelumne River and Camanche Reservoir.

7. The discharge valve and spillway on Mine Run

Dam are “point sources,” as defined in Section 502 (14) of

the Act, 33 U.S.C. §1362(14). EBMUD is the owner or

operator of those point sources, and has discharged “pol-

lutants” as defined in Section 502(6), (12) and (14) of the

Act, to the Camanche Reservoir and the Mokelumne

River through them.

8. The Mokelumne River and Camanche Reservoir

are “navigable waters of the United States,” as defined in

Section 502(7) of the Act, 33 U.S.C. 1362(7).

9. Since the initial issuance of this Order (December

17, 1993), EBMUD has applied for a National Pollutant

Discharge Elimination System Permit (“NPDES”) for the

release of pollutants from MRDR to the Mokelumne River

or Camanche Reservoir in response to court ruling. The

State has not yet issued the permit.

10. On March 15, 1993, EPA issued an administra-

tive order, Docket No. CWA-309-FY93-26, requiring

EBMUD to undertake certain emergency response mea-

sures to reduce inflow into and mitigate the impacts of

further releases from MRDR. This Findings of Violation

and Order for Compliance supersedes that March 15,

1993 document and provides for a more comprehensive

and permanent cleanup.

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11. Based on the above, the Director repeats the

finding that EBMUD is in violation of Section 301 of the

Act.

ORDER FOR COMPLIANCE

Based on the above Findings and the potential envi-

ronmental and human health effects of the violations, and

pursuant to the authority of sections 308 and 309 of the

Act, 33 U.S.C. §§ 1318 and 1319, IT IS HEREBY ORDERED

THAT EBMUD comply with the requirements in the fol-

lowing paragraphs. All EPA approved workplans and

monitoring programs developed under this Order shall

be incorporated into this Order and are enforceable as

part of this Order.

12. Water Quality Objectives. EBMUD shall make

no release which adversely affects the designated uses or

exceeds applicable water quality standards of the

Mokelumne River or Camanche Reservoir, as established

pursuant to state law and/or Section 303 of the Act, 33

U.S.C. §1313. “Release”, in the context of this Order

means the addition of any pollutant to the Mokelumne

River or Camanche Reservoir through (a) the spillway at

Mine Run Dam, (b) the pipe located at the north end of

Mine Run Dam, (c) seepage from Mine Run Dam, or (d)

any point source operated by EBMUD at the Penn Mine

site.

13. Diversion of Upstream Inflows.

Effective immediately upon issuance of this Order,

EBMUD shall maintain, operate and monitor diversion

structures such that storm water runoff that crosses waste

A22

rock areas or flows into the Penn Mine Facility impound-

ments is minimized to the fullest extent practicable. If

monitoring of diverted storm water at the discharge

points into MRDR spill way or Camanche Reservoir indi-

cates the presence of pollutants in concentrations that

exceed water quality objectives as described in paragraph

12 of this Order, EPA may require modification of diver-

sion structures or operation methods. Diversion of storm

water around and away from waste rock material and the

Penn Mine Facility impoundments during periods of wet

weather runoff shall continue unless waste rock removal

occurs and diversion is no longer necessary.

14. Treatment of Mine Run Dam Reservoir Waters

a. Effective immediately upon issuance of this

Order, EBMUD shall continue to operate and maintain

the In-Line System (“ILS”) treatment unit and to conduct

batch treatment of MRDR waters such that any releases

from the ILS or MRDR meet the following criteria to the

extent practicable:

pH - not less than 7 nor greater than 10

standard pH units.

TSS —_ shall not exceed average daily maximum

of 30 mg/1 (or, from the ILS, an average

daily turbidity value of 3.8 Neph-

elometric Turbidity Units.

Metals -ILS effluent releases shall not exceed an

average daily maximum of 2% of ILS

influent concentration each for total cad-

mium, zinc, and copper. Metals limita-

tions on ILS effluent do not apply if

batch treatment of MRDR generates an

A23

ILS influent pH not less than 7 nor |

greater than 10.

Treatment additives -EBMUD shall not use any

chemical intended to enhance precipita-

tion of suspended solids, with the excep-

tion of slaked lime or limestone, unless

EPA approves such use.

Maintenance of the ILS for operational use when neces-

sary to treat contaminated waters shall be continued until

EPA approves discontinuing the system.

15. Sludge Disposal - MRDR and ILS Treatment

Operations.

EBMUD shall remove and dispose of sludges gener-

ated from the batch, ILS treatment operations, or any

subsequent treatment process, either on-site or at an off-

site location, in accordance with the Resource Conserva-

tion and Recovery Act, 42 U.S.C. §§ 6401 et seq. and any

other applicable solid waste disposal requirements.

16. Notification of Overflows of MRDR.

EBMUD must notify EPA at least six hours prior to

any overflow of the spillway of MRDR by telecom-

munications to Mr. Ken Greenberg at (415) 744-1905 or by

facsimile at (415) 744-1873. EBMUD must submit written

notification to EPA, confirming the overflow, within 72

hours of the overflow to:

Harry Seraydarian, Director

Water Management Division (W-1)

75 Hawthorne Street

San Francisco, CA 94105

A24

If Mr. Ken Greenberg cannot be reached direcfly, a

message shall be left on his Voice Mail and notification

Shall be made through EPA’s 24-hour Emergency

Response telephone number, (415) 744-2000.

17. Groundwater Investigation/Remediation

Groundwater Investigation Workplan: EBMUD shall

submit a workplan to EPA, including a detailed schedule,

for the investigation of groundwater quality, flow charac-

teristics, and potential contamination risks to water sup-

plies in Camanche Reservoir and the Mokelumne River

due to subsurface transport of contamination from the

Penn Mine Facility, including shafts three and four. Upon

EPA approval, EBMUD shall implement the final plan in

accordance with the approved schedule.

SUBMITTAL DUE: The draft Groundwater Investi-

gation Workplan shall be due by March 1, 1994. A final

Workplan which incorporates EPA’s comments shall be

due within thirty calendar days from receipt of EPA's

comments.

Groundwater Investigation and Cleanup Options

Report: EBMUD shall submit a report describing and

documenting the results of the groundwater investiga-

tion. EBMUD shall include an evaluation of a range of

potential groundwater remediation actions (including a

“no action” option) and recommend a plan that meets the

water quality objectives described in Paragraph 12 above.

SUBMITTAL DUE: A draft Groundwater Investiga-

tion and Remedial Options Report shall be due October

CAE ME EE OO R ELIN S Ma SOONERS it OP ib

A25

31, 1995. A final report which incorporates EPA’s com-

ments shall be due within thirty calendar days from

receipt of EPA’s comments.

Groundwater Cleanup: If EPA determines that

groundwater cleanup is necessary to meet the water qual-

ity objectives described in Paragraph 12 above, EBMUD

shall implement a groundwater cleanup program and

monitor its effectiveness as directed by EPA. In this event,

EBMUD shall submit a draft workplan and detailed

schedule, allowing adequate time periods for public com-

ment as necessary, for groundwater cleanup. As appro-

priate, this work shall be coordinated with the long term

treatment program for mine drainage discussed in para-

graph 20 below. (For example, if extraction of contami-

nated groundwater is implemented, it may be possible to

treat both the mine drainage and the contaminated

groundwater using the same system.)

SUBMITTALS DUE: A draft Groundwater Cleanup

Workplan shall be due within 45 calendar days of EPA’s

determination that groundwater cleanup is necessary to

meet the water quality objectives outlined in paragraph

12 above. The workplan shall include a schedule to

implement the groundwater cleanup option selected by

EPA. A final workplan incorporating EPA’s comments

shall be due within 30 days of receipt of EPA’s comments.

Upon EPA approval of a workplan, EBMUD shall imple-

ment the work in accordance with the approved schedule.

Within six months of completing construction and operat-

ing the groundwater cleanup program, as applicable,

EBMUD shall submit a report documenting the comple-

tion of construction and evaluating the effectiveness of

the program.

A26

18. Monitoring Requirements

Monitoring Plan: EBMUD shall submit for EPA’s

review and comment a proposal for a comprehensive

monitoring program that includes routine monitoring

and reporting of all diversion flows; Penn Mine facility

impoundments including MRDR; ILS influent, effluent,

and operational parameters; groundwater; and Camanche

Reservoir. The monitoring program should substantially

parallel the monitoring requirements in the March 15,

1993 Finding of Violation and Order For Compliance

(CWA-309-FY93-26), as amended. The plan shall also

include a program for toxicity testing of the ILS effluent.

Monitoring must be conducted according to test pro-

cedures approved under 40 CFR Part 136. Quality assur-

ance protocols for sample collection and analysis shall be

included or referenced in the monitoring program.

Upon EPA’s approval of the final monitoring plan,

EBMUD shall be implement the plan. Until implementa-

tion of this plan, the monitoring requirements of the

March 15, 1993 Finding of Violation and Order For Com-

pliance (CWA-309-FY93-26), as amended, shall remain in

effect. Any modifications to the final monitoring program

must be approved by EPA in writing.

SUBMITTAL DUE: A draft monitoring plan was

due and. was submitted to EPA by February 15, 1994. A

final monitoring plan incorporating EPA’s comments was

submitted within 30 calendar days of receipt of EPA’s

comments.

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19. Long Term Pollution Control and Treatment

Evaluation of Shorter Term Measures and Long

Term Strategy Development: Following completion of

groundwater investigations, EBMUD shall submit a com-

prehensive site status and long-term alternatives evalua-

tion report that includes the following information:

a. The hydrologic features and hydrologic

dynamics of the Penn Mine watershed;

b. A status report on water quality in the water-

shed, Camanche Reservoir and the Mokelumne River;

c. A status report on acid mine drainage, contami-

nated groundwater and any additional potential for

storm water runoff to become contaminated as it crosses

the site;

d. An evaluation of a range of alternatives

(including a “no action” alternative) that provide long-

term protection in meeting the water quality objectives

outlined in paragraph 12. This range of alternatives shall

include at least one alternative for source control which

employs waste rock removal, disposal, grading and

revegetation of disturbed areas.

e. A recommended alternative that includes an

acid mine drainage treatment system capable of meeting

a 99 percent removal rate for total copper, total cadmium,

and total zinc; effluent pH in the range of 7.0 to 10.0; and

average daily maximum suspended solids effluent con-

centration of 30 mg/I or turbidity of 3.8 Nephelometric

Turbidity Units.

SUBMITTAL DUE: A draft report detailing the

information and evaluations described above shall be due

A28

concurrent with the draft Groundwater Investigation and

Remedial Options Report (Paragraph 17) and may be

combined with that report. A final report incorporating

EPA’s comments shall be due within 30 calendar days of

receipt of EPA’s comments.

Workplan for Implementing Long Term Measures:

EBMUD shall submit to EPA a workplan, including a

detailed schedule that allows time periods for public

comment where necessary, for implementing the EPA-

selected long term measures for the site. This workplan

shall include tasks for design and construction of any

new facilities, development of operations and mainte-

nance plans for any treatment system or other control

structures, and development of a long-term site monitor-

ing program that shall include chronic and acute toxicity

testing of the treatment system effluent. Upon notice of

EPA approval of the final workplan, EBMUD shall imple-

ment the workplan in accordance with the approved

schedule.

SUBMITTAL DUE: The draft workplan for imple-

menting long term strategies shall be due within 30 calen-

dar days of EPA’s selection of a long term plan. A final

workplan, incorporating EPA’s comments, shall be due

within 30 calendar days of receipt of EPA’s comments.

Construction Completion Report —- Long Term Mea-

sures: EBMUD shall submit to EPA a report documenting

the completion of construction of the acid mine drainage

treatment system and any other control structures that

have been selected by EPA as part of the long term

strategy for meeting the water quality objectives defined

in paragraph 12 of this Order. The report shall include a

Hai sae ee ee ee ee ee

A29

preliminary evaluation of the effectiveness of the long

term measures in meeting the objectives of the cleanup

program. Additionally, the report shall describe long-

term operations and maintenance plans for continuing to

meet water the quality objectives defined in paragraph

12.

SUBMITTAL DUE: The construction completion

report shall be due within six months of the completion

of construction and operations start-up.

20. Reporting Requirements

Progress Reporting: EBMUD shall submit progress

reports summarizing the status of compliance with the

provisions of this Order on a monthly basis until all

construction required under this Order is completed and

routine operation is in place. At that time, EBMUD may

petition EPA to modify the reporting frequency to quar-

terly. Any modifications to the reporting requirements

must be approved in advance by EPA.

Progress reports shall include the following informa-

tion:

a. A summary of work completed since submittal

of the previous report, and work projected to be com-

pleted by the time of submittal of next report,

b. As relevant, appropriately scaled and labeled

maps showing construction areas or monitoring points;

c. A summary of all monitoring and investigation

data collected during the monitoring period and a discus-

sion of its significance,

A30

d. Identification of potential problems which will

cause or threaten to cause noncompliance with this Order

and what actions are being taken or planned to prevent

these potential problems from resulting in non-compli-

ance with the Order, and

e. In the event of noncompliance with the provi-

sions of this Order, the report shall include written expla-

nation of the events which led to the noncompliance and

proposed actions and schedule to achieve compliance.

All reports submitted pursuant to this Order shall be

signed by a principal executive officer, ranking elected

official or duly authorized representative of EBMUD [as

specified by 40 C.F.R. 122.22 (b) (2)] and shall include the

following statement: |

I certify under penalty of law that this document

and all attachments were prepared under my

direction or supervision in accordance with a

system designed to assure that qualified person-

nel properly gather and evaluate the informa-

tion submitted. Based on my inquiry of the

_person or persons who manage the system, or

those persons directly responsible for gathering

the information, I certify that the information

submitted is, to the best of my knowledge and

belief, true, accurate, and complete. I am aware

that there are significant penalties for submit-

ting false information, including the possibility

of fine and imprisonment for knowing viola-

tions.

21. Records. EBMUD shall maintain monitoring

records, including:

A31

a. The date, exact place, sail time of sampling or

measurements;

b. The individual(s) who performed the sampling

or measurements;

c. The date(s) analyses were performed;

d. The individual(s) who performed the analyses;

e. The analytical techniques or methods used

f. The quality assurance protocols use in both the

field and the analytical lab; and

g- The results of such analyses.

22. Submissions All submissions requested by this

Order shall be mailed to:

U.S. Environmental Protection Agency

NPDES Permits Issuance Section (W-5-1)

Permits and Compliance Branch

Water Management Division

75 Hawthorne Street

San Francisco, CA 94105

All telephone inquiries should be made to Doug Liden at

(415) 744-1920.

23. Reservation of Rights. EPA reserves the right to

seek any and all remedies available under the Act for any

violation cited in this Order. Issuance of this Finding and

Order is not an election by EPA to forego any further

administrative, civil, or criminal action to seek penalties,

fines, or other appropriate relief under the Act. This

order is not an NPDES Permit under Section 402 of the

Act, 33 U.S.C. § 1342, nor does it relieve EBMUD of

obligations imposed by the Act, or any Federal or State

law.

Re enn pn mene me

A32

The requirements of this Order do not supplant any

requirements which are, or which in the future may be,

established in connection with the suit captioned Commit-

tee to Save the Mokelumne River v. East Bay Municipal |

Utility District, No. CIV. S-91-1372 LKK (E.D. Cal.).

24. Effective Date. This Order is effective upon sig-

nature.

25. Modification and Termination.

a. The California State Water Resources Control

Board (“State Board”) and the Regional Water Quality

Control Board, Central Valley Region (“Regional Board”),

have stated their intent to issue a National Pollutant

Discharge Elimination System (“NPDES”) permit for the

In-Line System installed by EBMUD to treat and dis-

charge the contents of MRDR to Camanche Reservoir. In

addition, the State Board and Regional Board have stated

their intent to develop and issue a general permit to

control the discharge of pollutants due to storm water

runoff from inactive and abandoned mines throughout

the State of California. The State Board and Regional

Board are also considering additional mechanisms by

which storm water runoff and other pollutant sources

from inactive and abandoned mines may be regulated.

Following adoption of such measures for Penn Mine, the

requirements below may be modified as appropriate and

in accordance with the terms of this Order.

b. To the extent that the State Board issues an

effective permit or alternative regulatory mechanism

which contains requirements that EPA determines are

equivalent to any of the requirements of this Order, EPA

may modify or terminate those portions of this Order

A33

which are equivalent to the requirements of an effective

permit or alternative regulatory mechanism. Any por-

tions of this Order which are not found by EPA to be

equivalent to the requirements contained in an effective

permit or alternative regulatory mechanism shall remain

in effect through this Order.

c. In the event that one or more permits or alter-

native regulatory mechanism do not supersede the

requirements of this Order, this Order shall terminate

when EPA determines that EBMUD has satisfactorily

completed all of the requirements set forth in this Order.

26. Compliance with Applicable Laws

All activities undertaken by EBMUD pursuant to this

Order shall be performed in accordance with the require-

ments of all federal, state, and local laws and regulations.

Dated this 16th day of June, 1994.

/s/ Alexis Strauss

for. Harry Seraydarian

Director

Water Management Division

U.S. Environmental

Protection Agency,

Region IX

75 Hawthorne Street

San Francisco, CA 94706

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.