Petition for Writ of Certiorari — El Paso Properties, Inc. v. Sierra Club (No. 05-933)

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Public Health and Environment has primary responsibil-

ity for permitting decisions and enforcement.

Section 301(a) of the CWA, 33 U.S.C. § 1311(a), makes

unlawful “the discharge of any pollutant by any person”

unless the discharger has obtained a valid permit under

Section 402 or Section 404. The phrase “discharge of a

pollutant” in § 1311(a) is defined as “any addition of any

pollutant to navigable waters from any point source.” 33

U.S.C. § 1362(12); see also 40 C.F.R. § 122.2; 33 C.FR.

§ 323.2(d)(1) & (f). Therefore, a “discharge of a pollutant”

occurs when five elements exist: “(1) a pollutant must be

(2) added (3) to navigable waters (4) from (5) a point

source.” Nat'l Wildlife Fed’n v. Gorsuch, 693 F.2d 156, 165

(D.C. Cir. 1982). ,

Section 505(a)(1) of the CWA, 33 U.S.C. § 1365(a)(1),

grants citizens, acting as private attorneys general, the

right to bring civil actions against any person “alleged to

be in violation of” the discharge permit requirement. This

Court has interpreted this language to preclude private

actions based on wholly past violations. Gwaltney of

Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. 49, 57

(1987). According to this Court, “(t]he bar on citizen suits

when governmental enforcement action is under way

suggests that the citizen suit is meant to supplement

rather than to supplant governmental action.” Jd. at 60.

The statute requires a citizen to “allege a state of either

continuous or intermittent violation — that is, a reasonable

likelihood that a past polluter will continue to pollute in

the future.” Jd. at 57. ‘

C. Respondents’ Citizen Suit

On November 5, 2001, Respondents commenced a

citizen suit against E] Paso for discharges of pollutants

from the portal of the Roosevelt Tunnel into navigable

waters. The parties herein filed cross-motions for sum-

mary judgment on September 20, 2002 Without hearing

any testimony, the district court entered summary judg-

ment and ordered El] Paso to: (1) apply for a discharge

permit pursuant to the CWA; (2) pay $94,900 in civil

penalties to the United States Treasury; and (3) reimburse

Respondents for their attorney fees and costs. App., infra,

35-74.

D. The Parallel Federal and State Proceedings

Although there is but one flow of water from the

Roosevelt Tunnel portal into Cripple Creek, prior to suing

El Paso, the Respondents herein also sued the Cripple

Creek & Victor Gold Mining Company (CC&V) for the

same alleged violation under the CWA citizen suit provi-

sion. See Civil Action No. 00-MK-2325 (D. Colo.); App.,

infra, 4 n.1. Respondents’ case against CC&V is scheduled

to go to trial on February 13, 2006.

On July 25, 2002, the WQCD initiated administrative

enforcement proceedings under state law alleging that El

Paso’s “ongoing discharge of pollutants into the Roosevelt

Tunnel, and from the Roosevelt Tunnel into Cripple Creek

constitutes an unauthorized discharge of pollutants from a

point source(s) into state waters.” On April 21, 2003, a

state Administrative Law Judge (ALJ) issued an initial

decision in the WQCD case after hearing four days of

testimony. App., infra, 75-101. The ALJ found “as fact that

there is insufficient evidence to find that [El] Paso) is

responsible for the zinc and manganese in the water at the

portal.” App., infra, 93. The ALJ concluded that the WQCD

“failed to prove that the zinc and manganese in the water

coming out of the Roosevelt Tunnel! portal has its origin

in the El Paso Mine owned by [E] Paso].” App., infra, 96.

The WQCD administrative enforcement proceedings are

currently stayed by stipulation of the parties pending this

Court’s action on this petition.

E. The Tenth Circuit’s Decision

The Court of Appeals for the Tenth Circuit reversed

the district court’s summary judgment order after finding

that there are disputed issues of material fact regarding

the hydrological connection between El Paso’s property

and navigable waters. App., infra, 24-34. The Tenth

Circuit affirmed, however, the district court’s rulings with

respect to the two legal issues presented in this case. App.,

infra, 10-24.

To date, only the Seventh Circuit Court of Appeals has

directly examined the extent to which passive landowners

may have liability for discharging without a permit under

the CWA. Froebel v. Meyer, 217 F.3d 928 (7th Cir. 2000),

cert. denied, 531 U.S. 1075 (2001) (mere ownership of

property cannot give rise to CWA liability). The Tenth

_ Circuit distinguished the Froebel holding on the basis that

the decision considered only Section 404 of the CWA

(discharge of dredged or fill material) and not Section 402

' The ALJ also found that E!] Paso was liable under state law for

discharging pollutants from the base of the El Paso shaft into ground-

water flowing in the Roosevelt Tunnel, which he determined constituted

waters of the state under the Colorado Water Quality Control Act

(WQCA). App., infra, 96-97.

(point source discharge). Instead, the Tenth Circuit

adopted the reasoning of the Fifth Circuit as\set forth in

dicta in the case of Sierra Club v. Abston Constr. Co., 62C

F.2d 41, 45 (5th Cir. 1980), holding that any person who

owns a point source through which pollutants flow is liable

for the discharge of those pollutants under the CWA.

The Tenth Circuit held that a landowner can be liable

for the discharge of pollutants occurring on its land even if

(a) it purchased its property before passage of the CWA;

and (b) it committed no affirmative act related to the

alleged discharge. According to the Tenth Circuit, “if you

own the leaky ‘faucet,’ you are responsible for its ‘drips.’”

App., infra, 23. The Tenth Circuit's ruling is legally erro-

neous, conflicts with precedent from the Seventh Circuit

and would undermine current Congressional efforts to

address problems stemming from abandoned mine sites.

By enacting the CWA, Congress did not intend to require

p2ssive landowners to obtain discharge permits for natu-

rally occurring elements collected in groundwater flowing

through their property. The Tenth Circuit’s ruling that

such flows constitute the “discharge” of pollutants is

inconsistent with the plain language, legislative history

and purposes of the CWA.

Even if the CWA does impose permitting obligations

against passive landowners, however, Congress did not

intend to authorize retroactive citizen suits against own-

ers of abandoned mine properties. Section 505(a)(1) of the

CWA grants citizens the right to bring civil actions against

any person “alleged to be in violation of” effluent stan-

dards or limitations. In 1987, this Court held that Con-

gress, by using the present tense phrase “in violation,” did

not intend to permit citizen suits based on “wholly past

violations” of the CWA. Gwaltney, 484 U.S. at 49. Instead,

this Court reasoned that because the language and struc-

ture of the citizen suit provision is “primarily forward-

looking” or preventative, id. at 59, the most natural

reading of Section 505(a)(1) requires “citizen-plaintiffs [to]

allege a state of either continuous or intermittent violation

— that is, a reasonable likelihood that a past polluter will

continue to pollute in the future.” Jd. at 57.

In this case, the Tenth Circuit observed that “[i]f the

Plaintiffs complained only that the pollutants migrated

from surface waste piles through the ground to the tunnel,

or seeped into the tunnel from naturally occurring mineral

deposits in the ground, E] Paso’s argument as a passive

landowner would have considerable force.” App., infra, 14.

However, the court of appeals distinguished a line of cases

from other circuits holding that the migration of pollut-

ants from prior discharges are wholly past on the basis

that Respondents have argued that El] Paso’s property

contains “a man-made point source that delivers pollut-

ants and continues to discharge them into the Roosevelt

Tunnel.” Jd.

This case amply demonstrates that the citizen suit is

an inappropriate mechanism for adjudicating liability for

alleged point source discharges that have multiple

sources. In such situations, the use of citizen suits may

lead to inconsistent rulings in multiple administrative

and judicial forums. The Respondents herein are pursuing

two separate citizen suits against multiple parties for a

single flow of water from the Roosevelt Tunnel portal.

There are also state enforcement proceedings pending with

respect to the Roosevelt Tunnel discharge, and factual

findings made thus far in the federal and state proceedings

are in direct conflict. Under these circumstances, the state

regulatory agency charged with implementing the NPDES

permitting program should have sole enforcement author-

ity exclusive to the role of citizen suits.

Given (1) the contradictory holdings of the Seventh

and Tenth Circuits regarding passive property owner

liability; (2) the Tenth Circuit’s failure to apply the plain

language of the CWA; (3) the large number of potentially

affected abandoned mining properties in the United States;

and (4) the potential for inconsistent rulings arising from the

use of citizen suits seeking to impose liability for drainage

from abandoned mining properties, the Tenth Circuit’s

holdings herein merit review by this Court.

REASONS FOR GRANTING THE PETITION

This Court should grant review because the circuits

are divided over the fundamental scope of the NPDES

program. The Tenth Circuit’s decision misinterprets the

“discharge” requirement of the Clean Water Act, creating

expansive, intrusive and overreaching federal regulatory

jurisdiction over the mere ownership of land. The panel’s

decision ignores congressional intent, eviscerates the

CWA’s jurisdictional requirements, seriously infringes

upon prerogatives reserved to states in our system of

federalism, and subjects El] Paso to potential liability for

pollutants allegedly added to navigable waters as a result

of conduct of others that pre-dates both the passage of the

CWA and El Paso’s ownership of its property. In cases

where a single point source discharge is alleged to have

multiple sources, the Tenth Circuit’s interpretation of law

also creates a continuing risk of inconsistent rulings in

separate federal and state administrative and judicial

proceedings. At a minimum, this Court should clarify that

citizen suits may not be brought based solely upon dis-

charges from abandoned mining shafts and drainage

facilities whose construction and acquisition pre-dates

passage of the CWA.

I. THE COURTS OF APPEAL ARE IN CON-

FLICT REGARDING PASSIVE LANDOWNER

LIABILITY FOR DISCHARGES UNDER THE

CLEAN WATER ACT.

The CWA prohibits the discharge of any pollutant

from a point source by any person unless authorized by

permit. 33 U.S.C. §1311(a). The phrase “discharge of a

pollutant” in Section 1311(a) is defined as “any addition of

any pollutant to navigable waters from any point source.”

33 U.S.C. § 1362(12). The CWA does not define “addition”

and its legislative history is silent on the meaning of this

term. See, Gorsuch, 693 F.2d at 175. El Paso believes that

Congress did not intend to create CWA point source

liability for defendants that merely own property without

having conducted any activity affecting water quality. Had

it intended to require permits of wholly passive property

owners, Congress would have prohibited the “ownership of

property, without a permit, which contains a point source

which adds pollutants to navigable waters,” but it did not

use this language in the CWA. El Paso believes that it is

not discharging pollutants to navigable waters because it

has not engaged in any affirmative conduct to cause an

addition of pollutants to navigable waters.

Federal courts have held that many types of conduct

may constitute discharging from a point source. See, e.g.,

Romero-Barcelo v. Brown, 478 F. Supp. 646, 664 (D.P.R.

1979), rev'd on other grounds, 643 F.2d 835 (1st Cir. 1981),

aff’d sub nom. Weinberger v. Romero-Barcelo, 456 U.S. 305

(1982) (aircraft from which the release or firing of ord-

nance into the water is a point source); Avonyelles Sports-

men’s League v. Marsh, 715 F.2d 897, 922 (5th Cir. 1983)

(bulldozers and backhoes constitute point sources); Con-

cerned Area Residents for Env’t v. Southview Farm, 34 F.3d

114, 119 (2d Cir. 1994), cert. denied, 514 U.S. 1082 (1995)

(manure spreader which distributed manure in field

deemed a point source); United States v. West Indies

Transp., Inc., 127 F.3d 299, 308 (3rd Cir. 1997), cert.

denied, 522 U.S. 1052 (1998) (barge from which cement

blocks were dumped and paint chips from sandblasting

were projected is a point source); Stone v. Naperville Park

Dist., 38 F. Supp. 2d 651, 655 (D. Ill. 1999) (shooting range

where lead shot and clay targets land in the water is a

point source). However, only one circuit court of appeals

other than the Tenth Circuit has directly addressed the

question of whether the CWA imposes liability based upon

mere ownership of property. Froebel v. Meyer, 217 F.3d 928

(7th Cir. 2000), cert. denied, 531 U.S. 1075 (2001). Except

for the Tenth Circuit’s decision in this case, every reported

case imposing CWA permit liability has found that the

discharge resulted from some affirmative conduct by the

defendant.

The Tenth Circuit based its ruling on a Fifth Circuit

holding set forth in dicta in the case of Sierra Club vu.

Abston Constr. Co. In Abston, the Sierra Club brought a

CWA citizen suit against a consortium of coal strip miners.

During strip mining, the overburden is removed, exposing

coal that is close to the land surface, and then deposited

into “spoil piles” that are highly erodible. Abston, 620 F.2d

at 43. The Sierra Club alleged that the mining companies

were required to obtain point source discharge permits for

runoff from the spoil piles and sediment basin overflows.

Id. The district court dismissed the Sierra Club’s point

source discharge claim, holding that any pollution had

resulted from rmatural erosion and rainwater runoff and

not “from any affirmative act of discharge by the defen-

dants.” Jd.

On appeal, the Fifth Circuit reversed and remanded

the order of summary judgment for the reason that the

trial court had failed “to consider fully the effect the

miners’ activity has on the ‘natural’ drainage.” Id. at 44.

The Abston defendants argued that the discharge of

pollutants through ditches and gullies were not point

source discharges, “even though the pollutant and the base

material upon which the erosion cOuld take place to make

gullies was created by the mine operation, and even

though the miners’ efforts may have permitted the rain-

water to flow more easily into a natural ditch leading to

the waterway.” Jd. However, the Fifth Circuit adopted the

view of the United States, participating as amicus curiae,

that the activity of collecting and channeling surface

runoff constitutes a point source discharge.’ Jd. at 44-45.

Under this view, simple erosion resulting in discharge

would not constitute a point source “absent some effort to

change the surface, to direct the waterflow or otherwise

impede its progress.” /d. at 45.

* The EPA subsequently adopted this position in a formal regula-

tion, interpreting “discharge of a pollutant” to encompass “surface

runoff which is collected or channelled by man.” 40 C.F.R. § 122.2. 1 >

EPA regulation also refers to discharges to publicly owned treatmeiit

works and “discharges through pipes, sewers, or other conveyances

owned by a State, municipality, or other person which do not lead to a

treatment works.” 40 C.F_R. § 122.2. This regulation does not purport to

define the mearing of the term “discharge.”

The Fifth Circuit did not reach the question of

whether the mere ownership of property, without more,

may constitute a point source discharge. The Abston

defendants affirmatively engaged in activities that created

point source discharges, including the excavation of

sediment basins and “the collection, and subsequent

percolation, of surface waters in the pits themselves.” Id.

Nonetheless, the Fifth Circuit observed in «icta that

“{njothing in the Act relieves miners from liability simply

because the operators did not actually construct those

conveyances, so long as they are reasonably likely to be

the means by which pollutants are ultimately deposited

into a navigable body of water.” Jd. According to the Fifth

Circuit “[clonveyances of pollution formed either as a

result of natural erosion or by material means, and which

constitute a component of a mine drainage system, may fit

the statutory definition and thereby subject the operators

to liability under the Act.” Jd. The Fifth Circuit remanded

the Abston case to the district court for additional findings

“necessary to determine the precise nature of spoil-basins

constructed by defendant.” Jd. at 47.

By contrast, the flows at issue in this case are not

surface runoff and E] Paso engaged in no activity to collect

or channel such flows. It is undisputed that the activities

of constructing the El Paso shaft and Roosevelt Tunnel

occurred long before El Paso purchased its property in

1968.

The facts of this case are more akin to those presented

in Froebel v. Meyer. Froebel involved a citizen suit against

the state of Wisconsin and Waukesha County under

Sections 402 and 404 of the CWA for discharging pollut-

ants and dredged or fill material into navigable waters

without a permit. Froebel, 217 F.3d at 932. After the state

of Wisconsin removed a dam built in 1850, the Froebel

plaintiffs claimed that water passing through the opening

where the dam was formerly located would scour silt and

sediment and redeposit it downstream. Jd. at 931-32.

Waukesha County did not participate in the dam removal

but simply owned the property on which the dam had been

located when the plaintiff sued. Id. at 934 (Waukesha

County “is a party to this case only because it owns the

land on which Funk’s Dam used to sit.”). The district court

granted the County’s motions to dismiss for failure to state

a claim. Froebel v. Meyer, 13 F. Supp. 2d 843, 845 (E.D.

Wis. 1998).

On appeal, the Seventh Circuit concluded that, in the

absence of some active conduct, Waukesha County could

not be liable for merely owning property through which

water flowed. 217 F.3d at 937-38. According to the court,

“there is nothing in either the regulations or the case law

interpreting Section 404 that indicates that a landowner

can fall within the permit requirement for a ‘discharge’ by

doing absolutely nothing at all.” Id. at 938. The court

noted that “[t]he reference to ‘addition’ and ‘redeposit’

strongly suggest that a Section 404 permit is required only

when the party allegedly needing a permit takes some

action, rather than doing nothing whatsoever (as Wauke-

sha County has done here).” Jd. The Froebel court con-

cluded that the plaintiffs’ interpretation of the CWA defied

common sense because it “would essentially require

Waukesha County to seek a permit to do nothing but

continue to own the land.” Jd. at 939. The Seventh Cir-

cuit’s reasoning has been cited as authority by several

district courts. See, e.g., Jones v. E.R. Snell Contractor,

Inc., 333 F. Supp. 2d 1344, 1348 (N.D. Ga. 2004) (the CWA

“requires active conduct in order to impose liability in a

citizen suit.”); North Carolina Shellfish Growers Ass’n v.

Holly Ridge Assoc., Case No. 7:01-CV-36-BO(3) (E.D.N.C.

2003) (“CWA violations cannot result from purely passive

developments on a defendant’s property.”).

The Tenth Circuit distinguished the Froebel decision

on the basis that it involved Section 404 of the CWA

instead of Section 402 of the CWA. However, a cornerstone

of statutory construction is that similar language within

the same statutory section must be accorded a consistent

meaning. Nat7 Credit Union Admin. v. First Nat'l Bank &

Trust Co., 522 U.S. 479, 481 (1998). The statutory lan-

guage used by Congress in both sections of the CWA is

identical. 33 U.S.C. §1311(a) prohibits the “discharge” of

pollutants except as authorized, inter alia, under Section 402

(permits for discharge of pollutants from a point source) and

Section 404 (permits for discharge of dredged or fill mate-

rial). In both instances “discharge” is defined as the “addi-

tion” of pollutants or materials. 33 U.S.C. § 1362(12).

Statutory language must also be given a common

sense interpretation in harmony with the discernible

intent of Congress. Natural Resources Defense Council,

Inc. v. Costle, 564 F.2d 573, 579 (D.C. Cir. 1977). When

looking at the language of the statute, a court must

assume that the “legislative purpose is expressed by the

ordinary meaning of the words used.” Richards v. United

States, 369 U.S. 1, 9 (1962); Perrin v. United States, 444

U.S. 37, 42 (1979). Applying these long established princi-

ples of. statutory construction to the statute in this case

reveals that when Congress passed the CWA it intended to

regulate only active conduct that results in a discharge of

a pollutant.

The ordinary meaning of the word “addition” is “the

act or process of adding.” WEBSTER’s NEW COLLEGIATE

DICTIONARY (1981); WEBSTER’s II NEW COLLEGE DICTION.

ARY (1995). Thus, the ordinary meaning of the word

“addition” indicates that some form of active conduct is

required to trigger the permit requirement in Section 402

of the CWA. Moreover, Congress made unlawful not the

“discharge of any pollutant from any point source,” but the

“discharge of any pollutant from any point source by any

person.” 33 U.S.C. § 1311(a). By including the phrase “by

any person” in the definition of what is unlawful, Congress

intended for only “persons” who commit an “act” or create

a “process” to be subject to the permitting requirement in

Section 402. This conclusion is also supported by the use of

the term “permit” in the CWA. According to Black’s Law

Dictionary, the noun “permit” means “any document which

grants a person the right to do something” and a “license

or grant of authority to do a thing.” BLACK’s Law DICTION-

ARY 1140 (6th ed. 1990).

Congressional intent in choosing the words “dis-

charge,” “permit,” and “addition” would be frustrated if

Section 402 liability were imposed based solely on passive

property ownership. The Tenth Circuit’s interpretation

renders the phrase “by any person” in Section 301 super-

fluous and creates a new category of responsible party that

was not contemplated by Congress in the CWA. The

Seventh Circuit’s interpretation of the dredged or fill

material discharge prohibition is at odds with the Tenth

Circuit’s interpretation of the prohibition against point

source discharges. By its plain language, the CWA re-

quires an element that is lacking in this case: active

conduct by a landowner causally related to the discharge

of pollutants.

Unlike other federal environmental laws, the CWA

does not define “owner or operator” in connection with the

NPDES permitting system.’ Subchapter IV of the CWA

(entitled “Permits and Licenses”), which includes both

Section 402 and Section 404, does not mention “owners” of

point sources. For purposes of the CWA section concerning

national standards of performance only, Congress defined

the term “owner or operator” as “any person who owns,

leases, operates, controls, or supervises a source,” where

the term “source” is defined as “any building, structure,

facility, or installation from which there is or may be the

discharge of pollutants.” See 33 U.S.C. § 1316(a)(3) & (4).

By statute, the only affirmative obligations that EPA can

impose upon owners and operators of point sources are

obligations to establish and maintain records, make

reports, install and maintain monitoring equipment,

sample water flows and provide such other information as

EPA may reasonably require. See 33 U.S.C. § 1318(a)A).

Congress could have defined the scope of liable parties

for point source discharges to include passive landowners

as it did in other circumstances. See, e.g., 42 U.S.C.

§ 6925(a) (“the Administrator shell promulgate regulations

requiring each person owning or operating an existing

facility or planning to construct a new facility for the treat-

ment, storage, or disposal of hazardous waste identified or

listed under this subchapter to have a permit issued pursu-

ant to this section.”); CWA, 33 U.S.C. § 1321(b)(6)(A) (“Any

* See, e.g., the CWA’s provisions regarding oil spills, 33 U.S.C.

§ 1321(a)(6), the Clean Air Act, 42 U.S.C. §§ 7411(a)(5) & 7412(aX9), the

Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6924, and

the Comprehensive Environmental Response, Compensation and Liability

Act (CERCLA), 42 U.S.C. § 9601(20).

owner, operator, or person in charge of any vessel, onshore

facility, or offshore facility — (i) from which oil or a hazard-

ous substance is discharged ... may be assessed a class I

or~ class II civil penalty....); CERCLA, 42 U.S.C.

§ 9607(a)(1) & (2) (potentially responsible parties include

the owner and operator of a facility and “any person who

at the time of disposal of any hazardous substance owned

or operated any facility at which such hazardous sub-

stances were disposed of”). In CERCLA, Congress expan-

sively defined the term “release” to encompass the passive

migration of pollution. 42 U.S.C. § 9601(22) (“[t]he term

‘release’ means any spilling, leaking, pumping, pouring,

emitting, emptying, discharging, injecting, escaping,

leaching, dumping, or disposing into the environment”).

Where Congress has provided for “owner and operator

liability,” it has also enacted “innocent landowner” provi-

sions that protect against the injustice of penalizing

passive private property owners for conduct that occurred

prior to passage of prohibitory legislation. See, e.g., 33

U.S.C. § 1321(f(1)(D) (liability for oil spills does not

extend to discharges caused solely by acts or omissions of

third parties); 42 U.S.C. § 9607(b) (“[tjJhere shall be no

liability .. . for a person otherwise liable who can establish

by a preponderance of the evidence that the release or

threat of release of a hazardous substance and the dam-

ages resulting therefrom were caused solely by” other

actors). The Tenth Circuit’s interpretation of the scope of

the NPDES point source permitting system does not afford

El Paso or any other passive property owner such a de-

fense. Congress did not intend for CWA point source

liability to be imposed upon an innocent party merely

because it owns land.

The trial court’s ruling in this case, which has been

reversed on factual grounds by the Tenth Circuit, demon-

strates the harshness of imposing CWA liability based

upon simple ownership of property. In 2001, El Paso had

owned its property for 33 years and the CWA had been in

effect for 29 years. During this time, no governmental or

private party had ever indicated to El Paso that it could

have CWA liability for discharges of pollutants from the

Roosevelt Tunnel portal before Respondents sent their

Notice of Intent to sue prior to commencing this citizen

suit. Nonetheless, the District Court ordered El] Paso to

apply for a permit, reimburse Respondents $247,246.19 in

attorney fees and costs and pay a penalty of $94,900 to the

federal government. (App., infra, 71-74). Since El Paso had

not committed any affirmative act related to water quality,

the only basis for the district court’s penalty must have

been El Paso’s property ownership.

It is undisputed that since its formation, El] Paso has

not acted in any way causally related to the addition or

introduction of pollutants to the Roosevelt Tunnel or

Cripple Creek. El Paso was formed and acquired its

property in 1968 and has never conducted any mining or

other operations on its property. If upheld, the Tenth

Circuit’s decision would require E] Paso to obtain a permit

in order to do nothing more than continue to own its land,

an outcome Congress did not intend and one squarely in

conflict with the Seventh Circuit’s holding in Froebel.

If the legal holdings in this case were to affect only El

Paso, the case might not merit review by this Court.

However, the outcome herein will affect owners of thou-

sands of abandoned mining sites, including the federal

government and many stutes. In February 1996, the U.S.

General Accounting Office estimated that there are

560,000 abandoned mining sites on public and private

lands. U.S. GEN. ACCOUNTING OFFICE, INFORMATION ON

EFFORTS TO INVENTORY ABANDONED HARD ROCK MINES,

GAO/RCED-96-30 (Feb. 1996). A significant number of

abandoned mine sites in the United States are located on

federal lands. The National Park Service has estimated

that land within its jurisdiction contains over 4,000

abandoned mine sites and the U.S. Fish and Wildlife

Service estimates that it owns 240 such sites. GAO/RCED-

96-30 at 1. ie

The U.S. Forest Service has inventoried “a total of

approximately 39,000 abandoned mine sites, of which an

estimated 1,800, or about 5 percent, are considered high

priorities because they are or could be releasing hazardous

substances.” U.S. GEN. ACCOUNTING OFFICE, SUPERFUND:

PROGRESS MADE BY EPA AND OTHER FEDERAL AGENCIES TO

RESOLVE PROGRAM MANAGEMENT ISSUES, GAO/RCED-99-

111 at 30 (April 1999). The Bureau of Land Management

(BLM) has estimated that there are between 70,000 and

300,000 abandoned mining sites located on the public

lands it administers, of which between 2,800 and 39,000

sites “may have contaminated material that poses poten-

tial risks to human health and the environment and must

be addressed.” GAO/RCED-99-111 at 36. BLM managers

reported reluctance to identify contaminated lands due to

fear that “once the sites are identified, BLM may be held

financially liable for thousands of abandoned sites that it

did not contaminate, particularly abandoned mine sites.”

GAO/RCED-99-111 at 38.

Many similar properties are also located on lands

owned by state and local governments as well as on

privately owned lands such as El] Paso’s. See, e.g., Froebel,

217 F.3d 928 (Waukesha County, Wisconsin); Jones, 333

F. Supp. 2d 1344 (Rockdale County, Georgia). The core of

the Tenth Circuit’s holding herein, that “if you own the

leaky ‘faucet,’ you are responsible for its ‘drips,’” creates

potential CWA point source liability for all such passive

private and government property owners.

If allowed to stand, the Tenth Circuit’s ruling in this

case would also undercut current Congressional efforts to

address problems stemming from abandoned mines. On

October 6, 2005, Colorado Senators Salazar and Allard

introduced the proposed “Cleanup of Inactive and Aban-

doned Mines Act” to protect mining companies, communi-

ties, non-profit organizations, government entities and

individuals that seek to clean up inactive or abandoned

mine sites from incurring legal liability. S. 1848, 109th

Cong. (2005). Under the proposed legislation, any “Good

Samaritan” wishing to remediate an inactive or aban-

doned mine site could submit a proposed remediation plan

to the EPA and host State for review. S. 1848, 109th Cong.

§ 2 (2005). The proposed cleanup would be required to

“improve the environment on or in the area of the mine

site to a significant degree” and meet, to the maximum

extent reasonable and practicable under the circum-

stances, water quality standards. S. 1848, 109th Cong.

$ 3(f)(1)(A) (2005).

As defined by Senate Bill 1848, a Good Samaritan

must: (1) be unrelated, by operation or ownership, to the

historic mine residue to be remediated (except solely -

through succession to title); (2) have had no role in the

creation of the historic mine residue; (3) have had no

significant role in the environmental pollution caused by

the historic mine residue; and (4) not be liable under any

Federal, State, or local law for the remediation of the

historic mine residue. S. 1848, 109th Cong. § 3(a)(4)

(2005). If legislation such as Senate Bill 1848 were en-

acted, the Tenth Circuit’s decision would undercut the

bill’s effectiveness by denying innocent passive property

owners Good Samaritan status because they would be

unable to demonstrate that they are not liable for reme-

diation of the historic mine residue. For example, El] Paso

might qualify as a Good Samaritan except that the Tenth

Circuit’s ruling herein disqualifies it under the legisla-

tion’s plain language.

An applicant for a Good Samaritan permit under

Senate Bill 1848 would also be required to certify that the

applicant knows of no other person that is potentially

legally responsible for the remediation of the mine site

that has sufficient resources to complete the remediation.

S. 1848, 109th Cong. § 3(e)(5) (2005). The Tenth Circuit

decision would eviscerate this provision at least as to all

government-owned sites because such government owners

would be legally responsible for remediation of those mine

sites and would have sufficient resources to complete

cleanups. The Tenth Circuit's decision herein thus poses a

substantial obstacle to current Congressional initiatives to

address the abandoned mine problem.

Application of the decision in this case would require

discharge permits for the passive owners of thousands of

inactive mining sites, many of which are located on public

lands and have not been mined for decades. The Tenth

Circuit decision directly conflicts with the Froebel decision

by failing to define the terms “addition” and “discharge” to

require affirmative conduct as a predicate for CWA liabil-

ity. If El Paso’s property were located in the Seventh

Circuit, it would not be required to obtain a NPDES

permit under the circumstances of this case. Landowners

are entitled to consistent treatment under the CWA

wherever they may be located, and for these reasons, this

Court should grant the Petitioner’s petition for a writ of

certiorart.

II. THE TENTH CIRCUIT’S DECISION IN THIS

CASE CONFLICTS WITH THIS COURT’S

HOLDING IN GWALTNEY V. CHESAPEAKE

BAY FOUNDATION.

- Section 505(a)(1) of the Clean Water Act grants

citizens, acting as private attorneys general, the right to

bring civil actions against any person “alleged to be in

violation of” the discharge permit requirement. 33 U.S.C.

§ 1365(a)(1). This Court has interpreted this language to

preclude private actions based on wholly past violations.

Gwaltney v. Chesapeake Bay Found., 484 U.S. 49, 57

(1987). The statute requires a citizen to “allege a state of

either continuous or intermittent violation — that is, a

reasonable likelihood that a past polluter will continue to

pollute in the future.” Jd.

Federal courts do not have subject matter jurisdiction

over citizen suits based on wholly past violations of the Act

because they are moot if it becomes “absolutely clear that

the allegedly wrongful behavior could not reasonably be

expected to recur.” /d. at 66 (quoting United States v.

Concentrated Phosphate Export Ass’n, Inc., 393 U.S. 199,

203 (1968)); Friends of the Earth, Inc. v. Laidlaw Envi-

ronmental (TOC) Services, Inc., 528 U.S. 167, 186 (2000).

The critical time for determining whether there is an

ongoing violation is when the complaint was filed.

In reaching its conclusion in Gwaltney, this Court was

particularly mindful of the plain language used by Con-

gress, noting:

One of the most striking indicia of the prospec-

tive orientation of the citizen suit is the perva-

sive use of the present tense throughout § 505. A

citizen suit may be brought only for violation of a

permit limitation ‘which is in effect’ under the

Act. 33 U.S.C. § 1365(f). ... This definition makes

plain what the undeviating use of the present

tense strongly suggests: the harm sought to be

addressed by the citizen suit lies in the present

or the future, not in the past.

Id. at 59 (“the interest of the citizen-plaintiff is primarily

forward-looking.”). This Court found further support for

the forward-looking posture envisioned by Congress for

citizen suits in the notice requirements of the statute,

observing that the targeting of wholly past violations

would make the notice requirement gratuitous. Jd. at 60.

The First Circuit Court of Appeals has held that the

phrase “is alleged to be in violation” in the citizen suit

provision of the CWA “speaks in terms of activity.” Paw-

tuxet Cove Marina Inc. v. Ciba- Geigy Corp., 807 F.2d 1089,

1092 (1st Cir. 1987). ~

The federal courts appear to be divided regarding

when a violation ceases to be ongoing and becomes “wholly

past,” particularly in cases (as here) “where the conduct

that gave rise to the violation has ceased, but the effects

continue.” App., infra, 10 (emphasis in original). However,

to Petitioner’s knowledge, no reported case has ever

addressed a situation where the conduct that gave rise to

the alleged violation ceased even before the passage of the

CWA and the passive landowner acquired the property

after cessation of the conduct but also before passage of

the CWA. There is an urgent need for this Court to resolve

ongoing confusion in this area of law by addressing the

issue.

In a case involving alleged violations of an existing

discharge permit, the Ninth Circuit adopted the expansive

interpretation that an ongoing violation exists until the

risk of continued violation has been completely eradicated.

Sierra Club v. Union Oil, 853 F.2d 667, 671 (9th Cir. 1988)

(remanding the case and indicating penalties may not be

imposed unless plaintiffs prove the existence of ongoing

permit violations or the reasonable likelihood of continu-

ing future violations). Two district courts have followed the

Ninth Circuit’s analysis to conclude that a violation is

ongoing when a pollutant previously added to ground-

water continues to reach a navigable water via ground-

water migration. See, Umatilla Waterquality Protective

Ass’n v. Smith Frozen Foods, 962 F. Supp. 1312, 1322 (D.

Or. 1997) (held in dicta that CWA liability attaches where

“the discharger simply collects pollutants that are later

carried to navigable waters by rain water or gravity flow”);

Werlein v. United States, 746 F.Supp. 887, 896-97 (D.

Minn. 1990), vacated in part on other grounds, 793

F. Supp. 898 (1992) (denying motion to dismiss due to

factual issues about whether alleged discharges were from

@ point source).

Other courts have reached a different conclusion,

holding (both pre- and post-Gwaltney) that “continuing

residual effects resulting from a discharge are not equiva-

lent to a continuing discharge.” See, e.g., Hamker v. Dia-

mond Shamrock Chemical Co., 756 F.2d 392, 397 (5th Cir.

1985). In Hamker, the earliest case to adopt this view, a

citizen suit was brought after a pipeline leaked crude

petroleum into a creek. Jd. at 394. The Fifth Circuit

affirmed dismissal of the complaint because the pipeline

leak was a “wholly past” occurrence, even though con-

tamination continued to migrate through the ground into

navigable waters. Id. at 398-99. According to the Hamker

court, “[mJjere continuing residual effects resulting from a

discharge are not equivalent to a continuing discharge.”

Id. at 397.

In 1987, the First Circuit Court of Appeals interpreted

the phrase “is alleged to be in violation of.” Pawtuxet Cove

Marina Inc., 807 F.2d 1089. In Pawtuxet, the plaintiffs

sued an upstream permit holder for discharging effluent in

violation of the permit. Jd. at 1090-1091. By the time the

case was resolved, the defendant had ceased operating

under the permit and routed its effluent to a municipal

treatment facility. Id. at 1091. Citing the Hamker decision

with approval, the court concluded that “the words ‘is . ..

in violation’ should be sufficiently liberally construed to

comport with the injunctive purpose of the Act — conduct

indicative of continuing or renewed violations justifying an

injunction, as distinguished from matters over and appar-

ently done with, that would not warrant one.” Jd. at 1093

(emphasis supplied).

The Second Circuit adopted the same reasoning in

1993. Connecticut Coastal Fishermen’s Ass’n v. Remington

Arms Co., 989 F.2d 1305 (2d Cir. 1993). In Remington, the

alleged discharger was a trap and skeet shooting club

where lead shot and clay target fragments had been added

to the land and waters surrounding the club over a period

of nearly seventy years. Id. at 1308. According to the court,

“none of the lead shot or the clay target fragments [had]

been removed from” the surrounding property or waters.

Id. at 1310. The Second Circuit affirmed the trial court’s

grant of summary judgment in favor of the shooting club

under Sections 402 and 404 of the CWA because “Reming-

ton ceased operation of the Gun Club by the time plaintiff

filed suit in April 1987.” Id. at 1312. The court noted that

“[t]he present violation requirement of the Act would be

completely undermined if a violation included the mere

decomposition of pollutants” and that “plaintiff’s Clean

Water Act suit against Remington was directed at wholly

past violations.” Jd. at 1313.

In 1995, the New Mexico district court adopted the

reasoning of the First, Second and Fifth circuit courts of

appeal and held that “[mligration of residual contamina-

tion resulting from previous releases is nct an ongoing

discharge within the meaning of the [Clean Water] Act.”

Friends of Santa Fe County v. LAC Minerals, Inc., 892

F. Supp. 1333, 1354 (D.N.M. 1995). In 1998, the Wyoming

district court found that the presence of PCE-contaminated

groundwater from past operations did not support a citizen

suit. Wilson v. Amoco Corp., 33 F. Supp. 2d 969, 975 (D.

Wyo. 1998) (“operations sufficient to result in the release

of contaminants concluded years ago at each of the Defen-

dants’ facilities.... only in rare circumstances will an

ongoing CWA violation exist when the facilities from which

the contaminants are emanating have themselves ceased

operating”). In 2001, the district court for the Eastern

District of New York adopted the same analysis in a citizen

suit against a municipality regarding leachate from a

closed landfill that migrated into a pond and was conveyed

by culverts to a stream. Aiello v. Town of Brookhaven, 136

F. Supp. 2d 81, 121 (E.D.N.Y. 2001) (defendant not liable

as past polluter for ongoing, migrating leachate plume).

The Tenth Circuit distinguished these cases on the

basis that the facts herein “involve an ongoing discharge of

pollutants from a point source into navigable waters” rather

than “the continuing migration of contaminants from a past

discharge.” App., infra, 12 (emphasis in original). According

to the Tenth Circuit, the critical difference lies in the point

in time at which the pollutant exits the point source, and

not the point in time when the conduct that created the

point source occurred (i.e., construction of the Roosevelt

Tunnel or the El Paso shaft). .

The Tenth Circuit’s interpretation leads to an inequi-

table result that Congress did not intend. Even though El

Paso admittedly has engaged in no culpable conduct,‘ El

Paso actually faces greater liability under the CWA than a

party that formerly engaged in culpable conduct in the

past but has since ceased that activity. Hence, parties that

caused “a spill, the accidental leakage at a chemical plant,

the discharge of lead shot and clay targets at a firing

range, or dumping of waste rock at a mine” are immune

from CWA liability simply because “la]t the time of suit,

the discharging activity from a point source in all of these

cases had ceased; all that remained was the migration,

decomposition, or diffusion of the pollutanis into a water-

way.” App., infra, 12-13 (internal citations omitted) (em-

phasis in original).

Congressional intent to limit citizen suits to ongoing

violations does not inhibit governmental enforcement of

the CWA. The federal and state governments may bring

criminal or civil actions for wholly past violations of the

CWA even though citizen suits are barred. 33 U.S.C. § 1319.

Governmental actions were envisaged to be the central

enforcement arm under the Act. Hamker, 756 F.2d at 395.

Citizen suits, by contrast, are meant to supplement, not

* The sole action by E] Paso that has subjected it to this citizen suit

is purchasing an abandoned mining property in 1968, four years prior

to passage of the CWA.

supplant, government enforcement action. Gwaltney, 484

U.S. at 60 (“Permitting citizen suits for wholly past viola-

tions of the Act could undermine the supplementary role

envisioned for the citizen suit....”). The Fifth Circuit

' noted “it [is] unlikely that Congress’s explicit restrictions

on the right to bring private enforcement actions signifi-

cantly impair the efficacy of the general regulatory frame-

work.” Sierra Club v. Shell Oil Co., 817 F.2d 1169, 1175

(5th Cir. 1987) (citizen suit barred for oil company’s

multiple, sporadic, past violations of effluent limitations in

its discharge permits).

The exercise of federal jurisdiction in cases like the

instant one is contrary to the supplementary purpose of

the citizen suit provision. Gwaltney, 484 U.S. at 60-61.

Indeed, Respondents’ citizen suit in this case has effec-

tively supplanted the efforts of the Colorado WQCD and

subjected El Paso to inconsistent factual determinations

regarding liability for the Roosevelt Tunnel discharge. The

Respondents have abused the citizen suit process by

bringing multiple lawsuits against different parties for the

same discharge, while ignoring the responsibility of the

point source owner itself.’ The factual findings of the

district court herein are in direct conflict with those in the

ongoing WQCD enforcement proceeding against El Paso.

The Colorado district court will soon enter findings of fact

on this same issue in Respondents’ second Roosevelt

Tunnel citizen suit, which is presently scheduled to com-

mence trial in February 2006.

* The Roosevelt Tunnel portal is controlled by the BLM. Petitioner

is unaware of any CWA enforcement activity or citizen suit against the

BLM regarding the Rooseve!t Tunnel portal.

—

Citizen suits may offer a useful supplement to gov-

ernment enforcement in simple CWA cases, but abandoned

mine cases (such as here) often present complex technical

issues involving multiple pollutant sources, hydrology and

geochemistry. As shown by the differing outcomes in

parallel federal and state proceedings regarding the

Roosevelt Tunnel, enforcement of the CWA in cases con-

cerning abandoned mines or multiple source discharges

should be entrusted to the regulatory agencies with the

appropriate technical expertise to resolve these issues.

CONCLUSION

For the reasons stated herein, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

‘STEPHEN D. HARRIS

MERRILL, ANDERSON, KING &

HAkrRIs, LLC

20 Boulder Crescent

Colorado Springs, CO 80903

(719) 633-4421

Counsel of Record

for Petitioner

January 19, 2006.

App. 1

421 F.3d 1133

United States Court of Appeals,

Tenth Circuit

SIERRA CLUB and Mineral Policy Center,

Plaintiffs-Appellees,

EL PASO GOLD MINES, INC., Defendant-Appellant,

; and

Mountain States Legal Foundation, Amicus Curiae.

No. 03-1105.

Aug. 24, 2005.

As Corrected on Denial of Rehearing Oct. 21, 2005.

Stephen D. Harris (with Connie H. King and James L.

Merrill with him on the briefs) Merrill, Anderson, King &

Harris, LLC, Colorado Springs, CO, for Defendant-

Appellant El Paso Gold Mines, Inc.

John M. Barth, Hygiene, CO (with Paul Zogg, Law

Office of Paul Zogg, Boulder, CO, and Roger Flynn and Jeff

Parsons, Western Mining Action Project, Boulder, CO,

with him on the brief), for Plaintiffs-Appellees Sierra Club

and Mineral Policy Center.

Steven J. Lechner and William Perry Pendley, Moun-

tain States Legal Foundation, Lakewood, CO, filed an

Amicus Curiae brief on behalf of Defendant-Appellant El

Paso Gold Mines, Inc.

Before MURPHY, McKAY, and TYMKOVICH, Circuit

Judges.

TYMKOVICH, Circuit Judge.

The Clean Water Act (““CWA” or “Act”) prohibits the

discharge of any pollutant from a point source unless

authorized by a permit issued under the National Pollutant

App. 2

Discharge Elimination System (“NPDES”). 33 U.S.C.

§§ 1311(a), 1342. Under the Act, a “discharge of a pollut-

ant” is defined as “any addition of any pollutant to naviga-

ble waters from any point source.” 33 U.S.C. § 1362(12).

The Act also confers jurisdiction on the federal courts -to

hear citizen suits brought against any person “alleged to

be in violation of” the Act. 33 U.S.C. § 1365(a).

The Sierra Club and the Mineral Policy Center

(“Plaintiffs”) filed a citizen suit in federal district court

against a land owner, El Paso Gold Mines, Inc., whose

abandoned mine shaft is allegedly discharging pollutants

~ ynto Cripple Creek, a navigable water under the Act. A

magistrate judge, hearing the case by consent, granted the

Plaintiffs’ motion for summary judgment, and this appeal

followed.

On appeal we must decide three questions regarding

the application of the CWA to the facts of this case: First,

whether the alleged conduct in this case amounts to a

“wholly past violation,” Gwaltney of Smithfield, Ltd. v.

Chesapeake Bay Foundation, Inc., 484 U.S. 49, 64, 108

S.Ct. 376, 98 L.Ed.2d 306 (1987), thus stripping the

district court of subject matter jurisdiction under

§ 1365(a); second, whether Congress intended to require

owners of inactive mines such as E] Paso to obtain dis-

charge permits under §§ 131l(a) and 1342; and third,

whether the Plaintiffs have met their burden of showing

that~ pollutants actually were discharged into Cripple

Creek.

We agree with the magistrate judge on the first two

issues, but hold that genuine issues of material fact exist,

and, therefore, summary judgment was improperly

App. 3

granted. Accordingly, we reverse and remand the case for

further proceedings.

I. BACKGROUND

A. Relevant Facts

El Paso owns approximately 100 acres of land west of

Colorado Springs, between the towns of Cripple Creek and

Victor, in Teller County, Colorado. Founded in 1968, El]

Paso has never conducted any mining operations on its

property, although it may in the future. Located on this

property is an inactive gold mine, the El Paso mine, as

well as a partially collapsed mine shaft known as the E]

Paso shaft. The El Paso shaft is a vertical shaft — formerly

an elevator shaft used by miners to access various levels of

the El Paso mine — shat connects the mine to the Roosevelt

Tunnel. The Roosevelt Tunnel is a mine drainage tunnel,

six miles in length, that was constructed around 1910 to

drain groundwater from the mines in the Cripple Creek

Mining District. The Roosevelt Tunnel underlies and

connects to numerous properties, including E] Paso’s.

Snow melt and groundwater make their way to the

Roosevelt Tunnel through a series of drainage tunnels and

underground shafts, including the El Paso mine shaft.

Water also apparently enters and exits the tunnel through

cracks and fractures in the rock along the tunnel’s six-mile

length. The tunnel ends at the Roosevelt Tunnel portal,

and here the tunnel discharges water into Cripple Creek,

which eventually empties into the Arkansas River. The El

Paso shaft connects to the Roosevelt Tunnel approximately

two and half miles from the tunnel portal.

App. 4

B. Proceedings in the District Court

In November 2001, the Sierra Club and the Mineral

Policy Center filed a citizen suit against E] Paso in federal

district court under the Clean Water Act, codified at 33

U.S.C. § 1251 et seq. According to the Plaintiffs, E] Paso

violated Section 402 of the Act, 33 U.S.C. § 1342, by

discharging pollutants (namely, zinc and manganese) from

a point source into Cripple Creek without a valid permit.’

The district court referred the case to a magistrate judge

under 28 U.S.C. § 636(c).

In September 2002, following discovery, the parties

filed cross-motions for-summary judgment pursuant to

Federal Rule of Civil Procedure 56(c). El Paso argued,

first, that the court lacked subject matter jurisdiction over

this citizen suit because the Plaintiffs had failed to allege

an ongoing violation of the Act. Because it had never

engaged in active mining, E] Paso argued that it was not

“alleged to be in-violation of” the Act, a required prerequi-

site for a citizen suit under Section 505(a)(1), 33 U.S.C.

§ 1365(a)(1). The magistrate judge disagreed, however,

holding instead that this was not a case of “wholly past

violations,” Gwaltney, 484 U.S. at 64, 108 S.Ct. 376, but

rather “the continuing migration of pollutants into navi-

gable water was occurring because of a past discharge

from a point source.” Sierra Club, et al v. El Paso Gold

Mines, Inc., Civ. No. 01-PC-2163 (OES), slip op. at 13

* In November 2000, the Plaintiffs filed a separate CWA citizen

suit against several active mining companies. See Sierra Club, et al v.

Cripple Creek & Victor Gold Mining, Co., Civ. No. 00-MK-2325 (OES)

(D.Colo. Nov. 28, 2000). In that case, the Plaintiffs allege the mining

companies are liable for violations of the CWA due to discharges

occurring at the Roosevelt Tunnel and the Carlton Tunnel (another

mine drainage tunnel located in the Cripple Creek mining district).

App. 5

(D.Colo. Nov. 15, 2002) (“Order”). In addition, the magis-

trate judge noted that “there is no evidence that E] Paso’s

intermittent or sporadic violations of the CWA are not

likely to recur.” Id. at 14. Thus, the magistrate judge held

that the court had subject matter jurisdiction under

Section 505(a)(1) notwithstanding the fact that El Paso

had not contributed to the alleged pollution through any of

its own mining.

E] Paso argued next that purely passive land owners

cannot be liable for discharges under Section 301(a), 33

U.S.C. § 1311(a), and therefore they were not required to

obtain a discharge permit pursuant to Section 402, 33

U.S.C. § 1342. This argument was based on the definition

of “discharge,” which is “any addition of any pollutant to

navigable waters from any point source.” 33 U.S.C.

§ 1362(12) (emphasis added). Because the word “addition”

implies affirmative conduct by the land owner, El Paso

argued it could not, as a matter of law, be liable under the

Act. The magistrate judge again disagreed, favoring

instead the Plaintiffs’ interpretation of the statutory

language. According to the magistrate judge, “[t]he key to

liability under the CWA is the ownership or operation of a

point source which ‘adds’ pollutants to navigable waters,”

and liability therefore attaches “not on the activity which

results in the point source discharge, but rather on the

point source discharge itself.” Orde. at 23-24.

Finally, El Paso argued the Plaintiffs had failed to put

forth any evidence establishing a hydrological connection

between the E] Paso shaft and the Roosevelt Tunnel portal

nearly two and half miles away. It was undisputed that

water samples taken at the shaft and the portal both

App. 6 ,

contained zinc and manganese.’ But according to El Paso,

there was no evidence linking the water from the shaft to

water discharged at the portal, and therefore the Plaintiffs

had failed to prove El Paso added pollutants to navigable

waters.’ In reviewing this claim, the magistrate judge

considered the expert testimonies proffered by the parties.

Although the experts disagreed in many respects, the

magistrate judge found the experts agreed that “some of

the water flowing into the Tunnel from the E) Paso shaft

reaches the Tunnel portal intermittently and flows into

Cripple Creek.” Id. at 29. Thus, the magistrate judge held

that the Plaintiffs had established the necessary hydro-

logical link.

Having rejected each of El Paso’s arguments, the

magistrate judge granted summary judgment for the

Plaintiffs. In a subsequent order, the magistrate judge

ordered El Paso to pay $94,900 in civil penalties, as well

as attorneys’ fees and costs. The magistrate judge also

ordered El Paso to apply for an NPDES permit.

* Water samples taken from the El Paso shaft in October 1994

show 4.1 milligrams of zinc per liter (mg/l). Samples taken from the E!

Paso shaft in November 2000 show manganese of 27.9 mg/l. Samples

collected at the Roosevelt Tunnel portal between November 1995 and

October 2000 show varying amounts of zinc (between .05 and 3.46 mg/l)

and manganese (between .0049 and 39.9 mg/)). This sampling data was

collected by Cripple Creek & Victor Gold Mining Co., whose property

overlies portions of the Roosevelt Tunnel.

* The magistrate judge found that Cripple Creek, which accepts

Roosevelt Tunnel’s discharge, is a “navigable water” under 33 U.S.C.

§ 1362(7). See Order at 16-17. El Paso does not challenge this ruling on

appeal, and we therefore accept it as true for purposes of this opinion.

App. 7

C. Parallel State Administrative Proceedings

Concurrent with the federal proceedings described

above, the Colorado Water Quality Control Division

(“CWQCD”) was pursuing an administrative action

against E] Paso based on the same facts giving rise to the

citizen suit. On July 25, 2002, the CWQCD issued a Notice

of Violation/Cease and Desist Order, alleging that El

Paso’s “ongoing discharge of pollutants into the Roosevelt

Tunnel, and from the Roosevelt Tunne’ into Cripple Creek

constitutes an unauthorized discharge of pollutants from a

point source(s) into state waters.” Aplt. App. I, at 242. The

CWQCD’s case was referred to a state administrative law

judge for adjudication. Following discovery, cross-motions

for summary judgment, and oral argument, the ALJ issued

an initial decision in December 2002, approximately one

month after the magistrate judge had granted the Plain-

tiffs’ motion for summary judgment in the federal case.

In the initial decision, the ALJ considered arguments

similar to those addressed by the magistrate judge. The

ALJ concluded that the Coloradc Water Quality Control

Act was applicable to point source owners such as E] Paso.

Thus, as with the federal case, E] Paso could be liable for

pollutants running out of its mine workings even though it

was not currently mining the property. However, contrary

to the magistrate judge’s conclusion, the ALJ saw no

evidence establishing a hydrological connection between

the El Paso shaft and the Roosevelt Tunnel portal. The

ALJ stated:

[CWQCD] has failed to prove that the zinc and

manganese in the water coming out of the Roose-

velt Tunnel portal has its origin in the E] Paso

Mine. Reliable measuring devices to determine

the flow of water in the Roosevelt Tunnel have

App. 8

not been used. This, along with the dramatic

drop in zinc and manganese concentrations from

the El Paso Shaft to the portal, casts sufficient

doubt on whether any of the zinc and manganese

tested at the portal is coming from the El Paso

~ ~ Mine.

Aplt. Supp. App. at 203.

Nevertheless, despite the lack of evidence linking

water from the shaft to the tunnel’s portal, there was

sufficient evidence that the El Paso shaft was discharging

pollutants into state waters from a point source. See

Colo.Rev.Stat. § 25-8-501 (2004). The ALJ found that the

water in the Roosevelt Tunnel constituted “state waters”

as defined in Colo.Rev.Stat. § 25-8-103(19) (2004), and the

evidence showed the E] Paso shaft was discharging pollut-

ants into those waters. The state of Colorado and El Paso

agreed to stay further administrative proceedings until

the federal court proceedings had ended. The AL.J’s initial

decision, therefore, has not been appealed.

D. Appellate Proceedings

Following appellate briefing and oral argument, we

became concerned that our decision may interfere with the

state’s administrative processes. We therefore ordered the

parties to brief a number of additional questions regarding

the status of the state proceedings and the desirability of a

stay of this appeal pending finality by the state. In Janu-

ary 2005, we abated the case, noting in part that the CWA

manifests a “pro-federalism thrust” whereby states have

the primary role in administration and enforcement. See

33 U.S.C. §§ 1251(b), 1342(b) and (c). Nevertheless, be-

cause these matters have been pending for some time, we

App. 9

stated that if the State of Colorado and E] Paso were not

able to lift the stay in the state administrative matter and

commence further proceedings or settle this matter within

ninety days of our order, we would lift our abatement and

rule on the merits.

The parties have informed us that the state proceed-

ings have been stayed by agreement of the parties. Set-

tlement and mediation have also been unsuccessful. We

therefore agree with the parties that the underlying issues

in this case will be advanced by our resolution of this

appeal.

Il. ANALYSIS

A. Subject Matter Jurisdiction for “Wholly Past”

Violations

We first address whether the magistrate judge erred

in finding that subject matter jurisdiction exists to hear

this case. Section 505(a)(1) of the CWA grants citizens the

right to bring civil actions against any person “alleged to

be in violation of” effluent standards or limitations. 33

U.S.C. § 1365(a)(1). There has been much debate in recent

years regarding when a person is “in violation of” the

CWA, particularly with respect to whether the defendant

must currently be engaged in the polluting practice or,

instead, whether jurisdiction lies for past practices that

have ceased by the time the suit is filed.

In 1987, the Supreme Court took a step toward

resolving the confusion with its opinion in Gwaltney of

Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484

U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987). In Gwalt-

ney, the Supreme Court held that Congress, by using the

present tense phrase “in violation,” did not intend to

App. 10

permit citizen suits based on “wholly past violations” of

the CWA. Instead, the Court reasoned that because the

language and-structure of the citizen suit provision is

“primarily forward-looking” or preventative, id. at 59, 108

S.Ct. 376, the most natural reading of Section 505(a)(1)

requires “citizen-plaintiffs [to] allege a state of either

continuous or intermittent violation — that is, a reasonable

likelihood that a past polluter will continue to pollute in

the future.” Id. at 57, 108 S.Ct. 376. Thus, to establish

jurisdiction, citizen-plaintiffs need only make good-faith

allegations of continuous or intermittent violations. Id. at

64, 108 S.Ct. 376. Defendants such as El] Paso may then

challenge the plaintiff’s allegations by showing that any

violations, i.e., discharges, have ceased and are not likely

to recur. “If the defendant fails to make such a showing

after the plaintiff offers evidence to support the allegation,

the case proceeds to trial on the merits, where the plaintiff

must prove the allegations in order to prevail.” Jd. at 66,

108 S.Ct. 376.

Although it is now clear that citizen suits cannot be

based on effluent violations that occurred entirely in the

past, other issues raised by Gwaltney remain unresolved.

One such issue is presented here: When is a CWA violation

“continuous or intermittent” such that it can be character-

ized as an ongoing violation rather than a wholly past

violation? Answering this question is particularly difficult

in cases such as this where the conduct that gave rise to

the violation has ceased, but the effects continue.

Some courts, interpreting the CWA and Gwaltney

expansively, have held that the continuing migration of

App. 11

pollutants from past discharges is sufficient to establish

jurisdiction under Section 505(a)(1). See Umatilla Water-

quality Protective Ass’n v. Smith Frozen Foods, Inc., 962

F.Supp. 1312, 1322 (D. Or. 1997) (holding “a discharge of

pollutants is ongoing if the pollutants continue to reach

navigable waters, even if the discharger is no longer

adding pollutants to the point source itself”); Werlein v.

United States, 746 F.Supp. 887, 897 (D. Minn. 1990)

(holding pollutants from past discharges that are released

' over time by infiltration of contaminated soil is “ongoing

pollution”), class. cert. vacated by 793 F.Supp. 898 (D.

Minn. 1992).

Other courts, before and after Gwaltney, have reached

the opposite conclusion, holding that the migration of

residual] contamination from prior discharges-is not an

ongoing violation. See Connecticut Coastal Fishermen’s

Ass’n v. Remington Arms Co., 989 F.2d 1305, 1312-13 (2d

Cir. 1993) (“The present violation requirement of the Act

would be completely undermined if a violation included

the mere decomposition of pollutants.”); Pawtuxet Cove

Marina v. Ciba-Geigy Corp., 807 F.2d 1089, 1094 (1st Cir.

1986) (dismissing citizen suit because the alleged polluter

had ceased operations by the time of the suit); Hamker v.

Diamond Shamrock Chem. Co., 756 F.2d 392, 397 (5th Cir.

1985) (dismissing complaint because it “alleges only a

single past discharge with continuing effects, not a con-

tinuing discharge”); Aiello v. Town of Brookhaven, 136

F.Supp.2d 81, 120 (E.D.N.Y. 2001) (holding CWA does not

allow citizen suit against a past polluter “for the ongoing

migrating leachate plume”); Wilson v. Amoco Corp., 33

F.Supp.2d 969, 975-76 (D. Wyo. 1998) (concluding “that

migration of residual contamination from previous re-

leases does not constitute an ongoing discharge”), factual

App. 12

background stated in 989 F.Supp. 1159 (D. Wyo. 1998);

Friends of Santa Fe County v. LAC Minerals, Inc., 892

F.Supp. 1333, 1354 (D.N.M. 1995) (finding no ongoing

discharge from pile of waste rock on surface); Brewer v.

Ravan, 680 F.Supp. 1176, 1183 (M.D. Tenn. 1988) (dis-

missing citizen suit based on allegations made against a

permanently closed manufacturing plant).

According to El Paso, we lack jurisdiction to hear this

case based on this latter set of cases. The El] Paso shaft,

the argument goes, is merely a conduit through which

pollutants from past discharges are alleged to flow. If this

were simply a case about the continuing migration of

contaminants from a past discharge, El Paso’s argument

might have some appeal. But contrary to E] Paso’s charac-

terizations, more is at issue here. Instead, as recognized

by the magistrate judge, the Plaintiffs in this case have

alleged “an ongoing discharge of pollutants from a point,

source into navigable waters.” Order at 13 (emphasis

added). This factual distinction renders the cases cited by

El Paso inapplicable.

The ongoing migration cases relied on by El Paso all

involve an identifiable discharge from a point source that

occurred in the past, whether it be a spill, Wilson, 989

F.Supp. at 1163, the accidental leakage at a chemical

plant, Hamker, 756 F.2d at 394, the discharge of lead shot

and clay targets at a firing range, Remington Arms, 989

F.2d at 1309, or dumping of waste rock at a mine, LAC

Minerals, 892 F.Supp. at 1337. At the time of suit, the

discharging activity from a point source in all of these

cases had ceased; all that remained was the migration,

App. 13

decomposition, or diffusion of the pollutants into a water-

way. In contrast, this case does not involve the mere

migration, decomposition, or diffusion of pollutants from

an identifiable discharge that occurred sometime in the

past. That the mine shaft itself is a point source is not

reasonably contestable. Here, the discharge from the point

source is occurring now, and is not the result of some past

discharge that occurred on the surface of El Paso’s prop-

erty. The Act defines “point source” as, among other

things, “any discernible, confined and discrete conveyance,

including but not limited to any ... tunnel [or] conduit...

from which pollutants are or may be discharged.” 33

U.S.C. § 1362(14). The magistrate judge concluded that

the El Paso shaft was a “point source” as defined by the

Act, and El Paso does not challenge this determination on

* This section reads, in its entirety,

The term “poirt source” means any discernible, con-

fined and discrete conveyance, including but not limited to

any pipe, ditch, channel, tunnel, conduit, well, discrete fis-

sure, container, rolling stock, concentrated animal feeding

operation, or vessel or other floating craft, from which pol-

lutants are or may be discharged. This term does noi in-

clude agricultural stormwater discharges and return flows

from irrigated agriculture.

The CWA also regulates nonpoint source discharges. See

33 U.S.C. §§ 1288, 1329. Nonpoint source pollution is not

statutorily defined, although it is commonly understood to

be pollution arising from dispersed activities over large ar-

eas that is not traceable to a single, identifiable source or

conveyance. See League of Wilderness Defenders/Blue Mts.

Biodiversity Project v. Forsgren, 309 F.3d 1181, 1184 (9th

Cir. 2002). Groundwater seepage that travels through frac-

tured rock would be nonpoint source pollution, which is not

subject to NPDES permitting. Thus, absent the El] Paso

shaft, which is undoubtedly a point source, this case would

implicate a different set of issues altogether.

App. 14

appeal. Thus, since plaintiffs have alleged the contempo-

raneous discharge from # point source — the El] Paso shaft

— which flows through other conveyances to navigable

waters, CWA jurisdiction is established.

Admittedly, our conclusion is largely driven by the

unique facts of this case. As alleged by Plaintiffs, the

hydrology of the El Paso shaft and Roosevelt Tunnel is

such that pollutants continually flow through the rock and

mine workings until they reach the shaft, where they are

then discharged into the tunnel. The Roosevelt Tunnel, in

fact, was originally constructed for the very purpose of

draining groundwater from the rock and lowering the

water table so that early twentieth century miners could

more easily access the desired mineral veins. The shaft

and tunnel are therefore working as originally intended,

with the unfortunate byproduct being that water which is

discharged from the shaft apparently contains some

pollutants. The origin of these pollutants is not precisely

known, but El Paso has yet to put forth any evidence to

rebut the allegation that pollutants are currently dis-

charging and will continue to discharge in the future.

This would be a far different case if there were no

point source connection from El] Paso’s property into the

Roosevelt Tunnel. If the Plaintiffs complained only that

the pollutants migrated from surface waste piles through

the ground to the tunnel, or seeped into the tunnel from

naturally occurring mineral deposits in the ground, El

Paso’s argument as a passive landowner would have

considerable force. But here we have a man-made point

source that delivers pollutants and continues to discharge

them into the Roosevelt Tunnel. These facts distinguish

this case from those involving the migration of pollutants

from prior discharges.

App. 15

In sum, the discharge of pollutants at the El Paso

shaft is alleged to be recurring and ongoing, and El Paso

has not shown any facts that suggest otherwise. Thus,

finding the Plaintiffs have made “a good-faith allegation of

continuous or intermittent violation,” Gwaltney, 484 U.S.

at 64, 108 S.Ct. 376, we hold that the magistrate judge did

not err in asserting subject matter jurisdiction over this

case. In our view, the Plaintiffs have sufficiently alleged

that E] Paso is “in violation of” effluent standards or

limitations under Section 505(a)(1), 33 U.S.C. § 1365(a)(1).

B. Liability Under § 402(a) of the CWA for “Dis-

charge” of a Pollutant

As noted, Section 301(a) of the CWA states that “the

discharge of any pollutant by any person shall be unlaw-

ful,” unless authorized by an NPDES permit. 33 U.S.C.

§ 1311(a). The CWA sets forth guidelines for the NPDES

permits for the discharge of pollutants in Section 402, 33

U.S.C. § 1342. To establish a violation of these sections, a

plaintiff must prove that the defendant (1) discharged (2) a

pollutant (3) into navigable waters (4) from a point source

(5) without a permit. See Natl Wildlife Fed’n v. Gorsuch,

693 F.2d 156, 165 (D.C. Cir. 1982).

In granting the Plaintiffs’ motion for summary judg-

ment, the magistrate judge found that each of these

elements had been proved. On appeal, E] Paso and amicus

curiae Mountain States Legal Foundation focus our

attention on the first required element, i.e., that the

defendant “discharge” a pollutant. As defined by the CWA,

the term “discharge of a pollutant” means the “addition of

App. 16

any pollutant to navigable waters from any point source.”

33 U.S.C. §1362(12) (emphasis added). As explained

below, we agree with Plaintiffs that El Paso can be liable

under Sections 301(a) and 402 for the “discharge” occur-

ring at the El Paso shaft.

The Plaintiffs cite ample authority from case law for

the proposition that discharges from inactive mines can

violate the CWA. See Comm. to Save Mokelumne River v.

East Bay Mun. Util. Dist., 13 F.3d 305, 308 (9th Cir. 1993)

(holding that the collecting and channeling of surface

runoff from inactive mine is “discharge of pollutants”);

American Mining Congress v. EPA, 965 F.2d 759, 764-66

(9th Cir. 1992) (holding EPA regulation requiring dis-

charge permit for stormwater runoff from inactive mine is

reasonable); Beartuuth Alliance v. Crown Butte Mines, 904

F.Supp. 1168, 1172-74 (D. Mont. 1995) (holding defendants

liable for discharges from. inactive mine). Administrative

regulations and an EPA policy statement provide further

support for this view. See 40 C.F.R. § 122.26(b)(14)(iii)

(stating “active or inactive mining operations” are among

the industrial activities that require a stormwater dis-

charge permit under 33 U.S.C. § 1342(p)); EPA Region VIII

policy statement, Ref. 8SWM-C (Dec. 22, 1993) (stating

“discharges from abandoned mine adits are point sources

which require a traditional NPDES permit”).

But these authorities, which merely establish a rule

that inactive or abandoned mining sites are not entirely

exempt from NPDES regulation, do little to advance the

Plaintiffs’ argument. El] Paso’s argument on appeal is more

nuanced. El Paso, as the successor owner to the mining

company that constructed the mine shaft point source,

argues that it has never conducted any mining operations

‘on its property; characterizing itself therefore as a purely

App. 17

“passive landowner.” El] Paso then argues it cannot be

liable for the “discharge” (i.e., addition) of any pollutants.

In other words, the issue is not the inactive status of the

El Paso mine, but whether the definition of “discharge”

requires some affirmative conduct by El] Paso. As the

magistrate judge recognized, this distinction renders

inapplicable the cases cited by Plaintiffs because the

defendants in those cases had engaged in active mining

operations at some point or participated in the construc-

tion of a point source on their property.

Our task, then, broadly defined, is to discern whether

Congress intended successor owners of a point source to be

subject to Section 402’s NPDES permitting requirements.

“As in all statutory construction cases, we begin with the

language of the statute.” Barnhart v. Sigmon Coal Co., 534

U.S. 438, 450, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002). If the

statutory language is not ambiguous, and “the statutory

scheme is coherent and consistent,” our inquiry is at an

end. Jd. (quotation omitted). However, if the language of

the statute is ambiguous, meaning it can be reasonably

understood in two or more different senses, United States

v. Quarrell, 310 F.3d 664, 669 (10th Cir. 2002), we must

dig further. “The plainness or ambiguity of statutory

language is determined by reference to the language itself,

the specific context in which that language is used, and

the broader context of the statute as a whole.” Robinson v.

Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136

L.Ed.2d 808 (1997). The process of statutory construction

has been described as “a holistic endeavor,” taking into

account, at a minimum, the “statute’s full text, language

as well as punctuation, structure, and subject matter.”

App. 18

United States Natl Bank v. Indep. Ins. Agents of Am., 508

U.S. 439, 455, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993).

We begin, therefore, with the statute’s text: Unless

‘authorized by an NPDES permit, “the discharge of any

pollutant by any person shall be unlawful.” 33 U.S.C.

§ 1311(a). The “discharge of a pollutant,” as noted, means

the “addition of any pollutant to navigable waters from

any point source.” 33 U.S.C. § 1362(12). The Act does not

otherwise define the term “addition,” and the legislative

history is silent on the matter. See Catskill Mts. Chapter of

Trout Unlimited v. City of New York, 273 F.3d 481, 493 (2d

Cir. 2001). “Addition” is defined by Webster’s New Interna-

tional Dictionary (2002) as “the act or process of adding.”

El Paso argues the plain meaning of the word “addi-

tion” requires affirmative conduct by some actor before

liability attaches. Amicus argues further that Congress

made unlawful the addition of any pollutant from any

point source “by any person.” 33 U.S.C. § 1311(a) (italics

added). This additional language, argues amicus, shows

* Thus, read together, the Act requires the following:

“the discharge” (§ 1311)

[defined as the “addition” (§ 1362(12))]

[meaning the “act or process of adding” (Webster’s)]

“of any pollutant” (§ 1362)(12))

“to navigable waters” (§ 1362 12))

“from any point source” (§ 1362(12))

{defined as “any ... channel, tunnel, conduit, well,

discrete fissure” (§ 1362(14))]

“of any pollutant” (§ 1311)

“by any person” (§ 1311)

“shall be unlawful.” (§ 1311).

App. 19

Congress only meant to penalize active conduct by “per-

sons” that results in a discharge of pollutant, not purely

passive owners of a point source. The Plaintiffs, on the

other hand, emphasize the determiner “any.” Because

“discharge” is defined as “any addition of any pollutant to

navigable waters from any source,” 33 U.S.C. § 1362(12),

the Plaintiffs argue the focus of the Act is not on who does

the discharging, but rather the fact of discharge.

Our task in answering this question is made easier by

considering the context of the statute. See United States v.

Nichols, 184 F.3d 1169, 1171 (10th Cir. 1999) (when

interpreting statutory ‘snguage, “appellate courts must

examine the ... language in context, not in isolation”).

When viewed as a whole, it is apparent the liability and

permitting sections of the Act focus on the point of dis-

charge, not the underlying conduct that led to the dis-

charge. See, e.g., 33 U.S.C. § 1311(e) (stating that effluent

limitations established by this section “shall be applied to

all point sources or discharge of pollutants”); id. at

§ 1342(a)(1) (stating the EPA may “issue a permit for

discharge of any pollutant”); see also id. at § 1251(a)(3)

(stating “it is the national policy that the discharge of toxic

pollutants in toxic amounts be prohibited”). Furthermore,

as the magistrate judge noted, the Act consistently refers

to the obligations of the “owners and operators” of a point

source, suggesting that successor land owners such as E]

Paso are covered by the Act’s provisions if they are respon-

sible for a functional point source. See, eg., id. at

§ 1311(g)(2) (providing that “owner or operator” of a point

source may apply for modification of permit requirements);

id. at § 1318(a) (stating that EPA shall require the “owner

or operator” of a point source to establish and maintain

records and perform other monitoring duties).

App. 20

Thus, in our view, the Act’s language does not exempt

successor landowners from liability under Sections 301(a)

and 402 for point source discharges occurring on their

land. Although we agree the term “addition” implies

affirmative conduct, such a requirement is satisfied by the

contemporaneous introduction of polluted water from El

Paso’s property, through a point source owned and main-

tained by El Paso, to a navigable stream, Cripple Creek.

Regulations promulgated by the EPA provide some

interpretative support. The phrase “addition of any pollut-

ant” is defined as “surface runoff which is collected or

channelled by man; discharges through pipes, sewers, or

other conveyances owned bya... person which do not lead

to a treatment works; and discharges through pipes,

sewers, or other conveyances, leading into privately owned

treatment works.” 40 C.F.R. § 122.2 (emphasis added); see

also EPA Notice, 55 Fed.Reg. 35248-01 (Aug. 28, 1990)

(stating drainage from abandoned mines can be point

source pollution where the owner can be found; otherwise,

it is nonpoint source pollution). While not a substitute for

the CWA’s plain language, this regulation reinforces the

view that ownership of a point source will trigger liability.

Moreover, in a regulation requiring NPDES permits for

stormwater runoff from inactive mines, the EPA defines

inactive mines as “mining sites that are not being actively

mined, but which have an identifiable owner/operator.” 40

C.F.R. § 122.26(b)(14)(iii) (emphasis added). Again, the

focus here is on ownership of the point source, not the

discharge-causing conduct. Significantly, E] Paso points to

no regulations, and we have found none, which support

the view that successor landowners not currently mining

their property are exempt from liability where a point

source is still discharging pollutants.

App. 21

El Paso does, however, cite some case authority for its

position. The Seventh Circuit was faced with a case

involving CWA liability for pollutants (silt and sediment)

caused by the removal of a 150-year-old dam. In Froebel v.

Meyer, 217 F.3d 928 (7th Cir. 2000), the court considered

whether a landowner, Waukesha County, could be liable

under Section 404 of the CWA. Although the county was

not involved in the dam’s removal, it owned the property

on which the dam was located at the time plaintiff filed

suit. Id. at 932. The plaintiff’s theory was that the open-

ing in the dam during demolition became a point source

that channeled silt laden water downstream. They argued

that Waukesha County needed a permit for the river’s now

unimpeded flow. Jd. But the County had nothing to do

with the dam’s construction, operation, or demolition. The

Seventh Circuit stated that the definition of “discharge”

under Section 404 “strongly suggest[s] that a Section 404

permit is required only when the party allegedly needing a

permit takes some action, rather than doing nothing

whatsoever.” Id. at 938. Thus, the court dismissed the case

against the county on the grounds that “[plaintiff’s] claim ~

would essentially require Waukesha County to seek a

permit to do nothing but continue to own the land.” Id. at

939.

Although this case offers some support to El Paso’s

interpretation of the CWA, we find it unpersuasive for

three reasons. First, the portion of the Froebel opinion

relied on by El Paso interprets Section 404 of the CWA, not

Section 402, which is at issue in this case. It is true that

the court in Froebel was construing the word “discharge,”

which applies to both CWA sections. But whereas Section

402 addresses the “discharge of any pollutant,” Section

App. 22

404 addresses “discharge of dredged or fill material.” 33

U.S.C. § 1344(a). This latter phrase is defined as “any

addition of dredged material ... including redeposit of

dredged material other than incidental fallback” into

navigable waters. 33 C.F.R. § 323.2(d)(1). The requirement

that the alleged violator introduce the pollutants into the

water is made clearer by the terms “dredged” and “rede-

posit,” words that do not appear in Section 402. In fact, in

Froebel the dredged material was already in the navigable

waters.

Second, whereas Section 402 focuses on the point

source and its ownership, Section 404 emphasizes the

“activity” giving rise to the discharge of dredged material,

which further distinguishes the two sections. See, e.g., 33

U.S.C. § 1344(e)(1) (stating the EPA may issue permits for

“any categories of activities involving discharges of

dredged or fill material”); id. at § 1344(f)(2) (must obtain

permit for discharge incidental to “any activity” altering

the use of navigable waters). Waukesha County engaged in

no “activity” whatsoever.

And finally, the term “discharge of any pollutant” that

appears in Section 402 must be understood as defined

elsewhere in the Act. See 33 U.S.C. § 1362(12) (“the addi-

tion of any pollutant to navigable waters from any point

source”). The introduction of “point source” into the statu-

tory scheme to define “discharge” and give context to

“addition” can only mean that we look to whether the point

source is actively adding pollutants to navigable waters.

And if the point source is “discharging,” the “person” who

owns or operates the point source is liable under the Act.

In this respect, our holding is not inconsistent with

Froebel. There, in fact, the court specifically held that the

county was not liable under Section 402 because the

App. 23

removed dam was not a point source. Froebel, 217 F.3d at

937 (holding that removed dam was not a “point source”

because that term “connotes the terminal end of an artifi-

cial system for moving water, waste, or other materials”).

Here, in contrast, E] Paso has conceded that the shaft is a

point source.

Thus, we do not find Froebel persuasive in this Section

402 case. The better view is that point source owners such

as E] Paso can be liable for the discharge of pollutants

occurring on their land, whether or not they acted in some

way to cause the discharge. See Sierra Club v. Abston

Constr. Co., 620 F.2d 41, 45 (5th Cir. 1980) (noting in dicta

that “[nJothing in the Act relieves miners from liability

simply because the operators did not actually construct

those conveyances, so long as they are reasonably likely to

be the means by which pollutants are ultimately deposited

into a navigable body of water”). This is a case where if

you own the leaky “faucet,” you are responsible for its

“drips.”

Our own circuit precedent supports this view. In

United States v. Earth Sciences, Inc., 599 F.2d 368 (10th

Cir. 1979), we considered whether the unintentional

discharge of pollutants from a gold leaching operation

violated the CWA. We found that it did. See id. at 374. In

reaching this conclusion, we noted that the Act was in-

tended to broadly regulate the introduction of pollutants to

streams and rivers. Exempting point source owners

without a clear exemption from Congress from_the re-

quirement to obtain NPDES permits for discharges occur-

ring on their land would undermine a primary objective of

the Act. 33 U.S.C. §1251(a\1) and (3) (declaration of

Congress’s goals and policies).

App. 24

In sum, we hold that point source owners cam be liable

under Sections 301(a) and 402 of the CWA for unpermitted

discharges that occur from their land even if they are not

actively mining their property. The magistrate judge,

therefore, did not err in holding that El Paso could be

liable for discharges occurring at the El Paso shaft.

C. Hydrological Connection Between El Paso

Shaft and Roosevelt Tunnel Portal

The final issue before us focuses on fact questions. Did

the magistrate judge err in granting summary judgment

for the Plaintiffs by finding that the undisputed facts

established a hydrological connection between the El Paso

Shaft and the Roosevelt Tunnel portal?

We review the grant of summary judgment de novo,

applying the same standard as the district court. Ward v.

Utah, 398 F.3d 1239, 1245 (10th Cir. 2005). Summary

judgment is appropriate “if the pleadings, depositions,

answers to interrogatories, and admissions on file, to-

gether with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law.” Fed. R_

Civ. Pro. 56(c). When applying this standard, we view the

evidence and draw all reasonable inferences therefrom in

the light most favorable to the nonmoving party. Simms v.

Oklahoma ex rel. Dep't of Mental Health & Substance

Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999) (cita-

tions and quotation omitted).

The language of the CWA requires a connection or link

between discharged pollutants and their addition to

navigable waters. See 33 U.S.C. §§ 1311(a), 1362(12). As

applied here, Plaintiffs have the burden of establishing

App. 25

that pollutants, discharged from the El] Paso shaft, actu-

ally make their way to the Roosevelt Tunnel portal where

they are then discharged into navigable waters (Cripple

Creek, and, ultimately, the Arkansas River).* El Paso

argues there were dueling expert opinions regarding the

source and path of the pollutants, and, thus, the magis-

trate judge erred in concluding that Plaintiffs had estab-

lished the necessary hydrological connection. Plaintiffs

counter that any factual uncertainties created by the

experts were not material to the issue of El Paso’s liability

under the CWA, and therefore the magistrate judge

correctly concluded there were no genuine issues of mate-

rial fact. We summarize the relevant evidence below.

1. Plaintiffs’ Evidence

Plaintiffs’ expert geologist, Kenneth Klco, filed an

“expert report opining that “at least some of the water that

is conveyed from [El] Paso’s] property, mine, the E] Paso

shaft, and related underground workings into the Roose-

velt Tunnel is discharged into Cripple Creek at the portal

of the Roosevelt Tunnel.” Aplt. App. II, at 1366. Klco based

his conclusion on site inspections and his review of various

documents, maps, and photographs of E] Paso’s property.

In June 2001, for example, Klco conducted an exterior

inspection of E] Paso’s property, noting that the El] Paso

shaft was surrounded by a large waste rock pile and that

the property contained “extensive mining disturbances.”

° We stress, again, that it is the combination of the El Paso shaft, a

point source, and the Roosevelt Tunnel, another point source, that

establishes the connection to a navigable stream. This system of

infrastructure distinguishes our case from the migration and seepage

cases.

App. 26

Id. at 1367. On this occasion, he also observed discharge

from the Roosevelt Tunnel into Cripple Creek, which he

described as “continuous.” Jd. In August 2001, Kico again

inspected the interior of the Roosevelt Tunnel. His expert

report states that he entered the tunnel from the portal

and walked the stretch of the tunnel to a point past the El

Paso shaft. Kico observed water continuously flowing from

the E] Paso shaft area all the way to the portal, and when

he reached the shaft, he saw water “raining down” from

the shaft and related underground workings. Jd. at 1368.

Beyond the El Paso shaft, Klco observed that the tunnel

turned to the northwest and there was no longer a con-

tinuous flow of water, although there was intermittent

pooling of water on the tunnel floor.

In his deposition, Klco explained further that he

observed several instances of water seeping into the

tunnel via the ribs or roof of the tunnel in the stretch

between the portal exit and the El] Paso shaft intersection.

He also stated that these seeps are potential sources of

pollution because water can pick up pollutants -- including

zinc and manganese — as it travels through faults and

fractures in the rock. Additionally, Kico acknowledged that

pollutants, once deposited into the tunnel, may not reach

the portal because some water exfiltrates into the tunnel

floor. Water and pollutants may also be lost due to evapo-

ration and dilution. In his estimation, however, “better

than half” of the water and pollution discharged at the

portal originate on El Paso’s property. Aplt. App. II, at 666-

67.

The Plaintiffs hired two other experts as well. Robert

Burm, an environmental engineer, opined that “the El

Paso shaft and the related underground workings serve as

conduits that convey water from [El Paso’s) property to the

App. 27

Roosevelt Tunnel. In turn, the water is then drained by

- the Roosevelt Tunnel and is finally discharged into Cripple

Creek.” Id. I, at 262. Ann Maest, an aqueous geochemist,

rendered a similar opinion: “(I]t is my opinion that at least

some of the metals and other contaminants being dis-

charged into Cripple Creek from the Roosevelt Tunnel are

generated fram the El] Paso Mine, El Paso shaft, and

related underground workings.” Id. IV, at 1483. Both of

these experts based their conclusions on Klco’s examina-

tion of the tunnel, as well as other inspection reports,

maps, and diagrams.

Among the significant documents the Plaintiffs’

experts relied on was an inspection report by Tom Boyce, a

CWQCD inspector who inspected the Roosevelt Tunnel in

May 1995. According to Boyce’s report, water flowed

continuously from the El Paso shaft to the portal, but it

fluctuated numerous times from lows of approximately two

gallons per minute to highs of approximately 15 gallons

per minute. Along the two and a half mile stretch from the

portal to the El Paso shaft, Boyce observed there were

“dozens” of seeps and “water was infiltrating in areas of

high porosity and likewise being regenerated by seepage

from the walls and ceiling of the tunnel.” Jd. III, at 1423.

He also observed that water continued to flow from beyond

the El Paso shaft at the same rate and frequency as below

the shaft, although the seeps seemed to decrease.’ Plain-

tiffs alse relied on a January 1995 letter authored by John

’ John Hardaway, who accompanied Boyce on the May 1995

inspection, filed an affidavit in which he disagreed with Boyce’s

observation that water continued to flow from above the E! Paso shaft.

According to Hardaway, the water they encountered above the shaft

was due to backed up water coming from the shaft.

App. 28

Hardaway, the environmental affairs manager from a

neighboring mine who had conducted numerous inspec-

tions of the Roosevelt Tunnel. According to Hardaway, “the

first sign of continuous flow toward the portal in the

Roosevelt Tunnel usually occurs at about the tunnel’s

intersection with the E] Paso Mine shaft.” Id. at 1414.

2. El Paso’s Evidence

El Paso’s expert, Robert Brogden, is a hydrologist and

groundwater geologist. He opined that the Roosevelt

Tunnel and its surroundings comprise complex geology

that is poorly understood based on current data. He thus

criticizes the Plaintiffs’ experts for drawing conclusions

with respect to the origin and flow of pollutants at the

Roosevelt Tunnel portal based on incomplete information.

He states, for example, that “pinpointing an exact source

or sources of water that flows from the portal is difficult

because of the lack of data that adequately describe the

geology and hydrology of the area, and the actual move-

ment of ground water.... Considerably more data are

required before any quantitative conclusions can be drawn

as to the exact sources of water flowing from the portal.”

Aplt. App. II, at 797. Thus, Brogden does not opine there is

no hydrological connection between the El Paso shaft and

tunnel portal; rather, he asserts that the Plaintiffs’ experts

have no basis to conclude that such a connection exists.

According to Brogden, the geology of the Cripple

Creek area is characterized by two distinct units, the

“diatreme” and “country rock.” The diatreme, which

dominates the region, is a mass of rock composed of

volcanic breccia. Because the diatreme is relatively per-

meable, water flows easily and rapidly through open

App. 29

spaces in the rock. Country rock, on the other hand, is

made of granite and other dense forms of rock. Unlike the

diatreme, water does not flow freely through the country

rock; instead, water only flows through fractures and

faults where the rock has been broken. The El] Paso shaft

is cut into country rock, and the Roosevelt Tunnel cuts

through areas of both kinds of rock.

Brogden opined that water discharged from the portal

originates from surface precipitation that infiitrates the

ground and then moves downward through fractures and

faults in the country rock. As water moves downward

along the fault lines, it intersects with the E] Paso shaft

and Roosevelt Tunnel at numerous points. Thus, the

Roosevelt Tunnel receives inflow along most of its length,

and this water originates from a number of properties that

overlie the tunnei. Furthermore, according to Brogden,

water in the tunnel infiltrates into the tunnel floor before

reaching the portal (especially those portions of the tunnel

comprising the diatreme). Accordingly, “water probably

- enters and leaves the Roosevelt several times between the

_ El Paso Mine shaft and the portal,” and “it is likely that a

large part of the water (at some times, all of the water)

that flows from the portal is derived from water that

infiltrates into the tunnel between the E] Paso Mine shaft

and the portal.” Jd. at 795. In sum, some of the water that

may enter the tunnel from the El] Paso shaft or upward

from it, seep out of the tunnel into the groundwater, never

reaching the portal exit.

To further support Brogden’s conclusions, El Paso

points to a July 2001 memo authored by CWQCD person-

nel. Although the memo notes “the primary source of

water entering the Roosevelt Tunnel is the El] Paso shaft

where it intersects the Roosevelt,” it ultimately concludes,

App. 30

consistent with Brogden’s report, that “more work needs to

be done before the responsible parties can be identified.”

Id. I, at 90. And further:

The full extent of the underground mine work-

ings probably has not been mapped, and the ef-

fects of the workings on the hydrology is

uncertain because of the limited information.

More information is needed about the under-

ground working of the El Paso Mine and any

other mines connected to the El Paso along with

ownership.

Id. at 91.

E] Paso also relies on water sampling data taken from

the E] Paso shaft in October 1994. The sampling data

shows that zinc concentrations in the water decreased

dramatically as water flowed towards the portal. Within

the first 4,000 feet from the shaft, zinc levels decrease

from 4.1 mg/l to .0009 mg/l, representing a 98.85% de-

crease in less than a quarter of the distance between the

shaft and the portal. Approximately half way between the

shaft and portal, zinc levels then increased to 916 mg/l.

This data, according to El] Paso, underscores the complex

geology and hydrology of the Rooseveit Tunnel and casts

doubt on the Plaintiffs’ assertion that pollutants dis-

charged at the portal originate at the E! Paso shaft.

3. Genuine Issues of Material Fact

In granting Plaintiffs’ motion for summary judgment,

the magistrate judge found that “[t]he experts agree that

some of the polluted water conveyed to the Tunnel by

means of the El] Paso shaft is discharged at the Tunnel

portal on an intermittent basis.” Order at 31. Accordingly,

App. 31

the magistrate judge concluded the evidence was sufficient

to demonstrate that El Paso was discharging pollutants

into a navigable water from a point source without an

NPDES permit.

El Paso argues on appeal that the magistrate judge

did not view the facts favorable to the non-moving party,

and we agree. Viewed in the proper light, the Plaintiffs

have failed to establish the absence of fact issues neces-

sary to show a hydrological connection. Although, as the

magistrate judge recognized, the experts agree that at

least some of the water from the El Paso shaft reaches the

portal, there is no agreement regarding whether pollut-

ants coming from the shaft are ever discharged at the

portal. It may not be a difficult leap to presume that if

water makes the two and a half mile journey, then so do

pollutants. But this ignores the evidence showing dra-

matic declines in zinc levels as water flows from the El

Paso shaft toward the portal. It further fails to take into

account the apparently complex process of infiltration and

exfiltration that occurs along the length of the Roosevelt

Tunnel. Even the Plaintiffs’ strongest evidence — that

water samples at the shaft and the tunnel portal (samples

taken by Cripple Creek & Victor Mining Co.) both contain

zinc and manganese — is less than convincing given the

uncertainties by which the data were collected.’ Viewed in

the light most favorable to the nonmoving party, then,

there is a genuine issue of material fact regarding the

* See supra note 2. The record contains only two water samples

taken at the El] Paso shaft. Although zinc and manganese were de-

tected, no samples link water from the El Paso shaft to water at the

Roosevelt Tunnel portal.

App. 32

source of pollutants discharged at the portal, and sum-

mary judgment was not appropriate.

Our standard for summary judgment bears repeating.

At the summary judgment stage, non-movants such as El

Paso are given “wide berth to prove a factual controversy

exists.” Jeffries v. Kansas Dep't of Soc. & Rehab. Servs.,

147 F.3d 1220, 1228 (10th Cir. 1998) (quotation omitted).

Our role is to assess “whether the evidence presents a

sufficient disagreement to require submission to a jury or

whether it is so one-sided that one party must prevail as a

matter of law.” Jd. at 1228. In this case, the evidence as a

whole is not so one-sided that Plaintiffs are entitled to

prevail as a matter of law. Nor is this a case where the

non-moving party has raised only a “scintilla” of evidence

in hopes of creating a factual dispute. See Simms, 165 F.3d

at 1326. Rather, El Paso has presented compelling and

unrebutted evidence that pollutants enter and exit the

Roosevelt Tunnel at numerous places along the two and a

half mile route from the El] Paso shaft to the portal.

Whether such evidence stands up under cross-examination

or is sufficient to allow El Paso to escape sean is for the

trier of fact to decide.

Furthermore, we cannot ignore the larger context of

this litigation. Although we do not rely on the findings of

the ALJ in the related CWQCD proceedings, we note his

observations about the factual complexity of the tunnel

geology. Following evidentiary hearings, which included

firect expert testimony and cross-examination by both

sides, the ALJ found that “[CWQCD] has failed to prove

that the zinc and manganese in the water coming out of

the Roosevelt Tunnel portal has its origin in the E] Paso

Mine.” Aplt. Supp. App. at 203. Particularly relevant to

the AL.l’s conclusion was the revelation that reliable

App. 33

measuring devices and other scientific tools have never

been used to determine the flow of water in the Roosevelt

Tunnel. The ALJ noted, for example, that although

CWQCD employees discussed placing recording weirs in

the Roosevelt Tunnel in order to determine how much

water was coming down the El Paso shaft, no such device

was ever used. Expert testimony also established that a

flume — which has never been used — would be another

method of recording accurate flows. Nor has any party

ever conducted a dye tracing test in order to determine the

path of water in the tunnel.” The ALJ also noted that

CWQCD’s expert “does not have objective scientific data to

explain why the zinc levels drop so dramatically from the

shaft to the portal.” Jd. at 201. As noted above, the Plain-

tiffs’ experts in this case are similarly silent on this point.”

Finally, E] Paso has asked us to take judicial notice of

a recent ruling by the district court in parallel litigation

brought by the Plaintiffs against several active mining

companies. See Sierra Club, et al v. Cripple Creek & Victor

Gold Mining, Co., supra note 1. In a hearing held pursu-

ant to Federal Rule of Evidence 702, the district court

ruled that Kenneth Klco’s expert opinions were inadmissi-

ble because “Mr. Klco lacks the qualifications to express

the opinions and he has not used a sufficiently reliable

* Counsel for Plaintiffs conceded at oral argument that dye testing,

properly conducted, could establish with a high degree of certainty

whether pollutants from the E] Paso shaft are ultimately discharged at

the portal.

” On cross-examination, CWQCD’s expert testified that the

declining levels could be due to dilution of the water by addition of more

water into the tunnel or that the zine could be precipitating out of the

water due to changes in pH or changes in the amount of dissolved

oxygen.

App. 34

methodology to formulate them.” The opinions offered by

Klco in the parallel litigation were essentially identical to

those offered here. Nonetheless, our conclusion is based

upon our own evaluation of the record before us, and we

therefore decline to take judicial notice of the district

court’s ruling.

Ill, CONCLUSION

For the aforementioned reasons, we REVERSE and

REMAND to the district court for further proceedings

consistent with this opinion.

App. 35

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 01-PC-2163 (OES)

SIERRA CLUB and MINERAL

POLICY CENTER,

Plaintiffis),

EL PASO GOLD MINES, INC.,

Defendant(s).

MEMORANDUM OPINION AND ORDER

(Filed Nov. 15, 2002)

Patricia A. Coan, United States Magistrate Judge

This is a citizen suit under the Clean Water Act.

Jurisdiction exists under 33 U.S.C. §1365(a) and 28 U.S.C.

§1331. The parties have consented to determination of this

case by a United States Magistrate Judge under 28 U.S.C.

§636(c). The matters before the court are Plaintiffs’ Motion

for Summary Judgment on the Issues of Standing and

Liability [filed September 20, 2002) and El Paso Gold

Mines, Inc.’s Motion for Summary Judgment [filed Sep-

tember 20, 2002j;. The court heard oral argument on

November 4, 2002. The motions are ripe for disposition.

Plaintiffs claim that for the last five years and con-

tinuing to date, defendant has violated 33 U.S.C. §1311(a)

and §1342 of the Clean Water Act by discharging pollut-

ants from a point source into Cripple Creek without a

valid permit. Plaintiffs bring suit on their own behalf and

on behalf of their members.

App. 36

A. Statutory framework

The Clean Water Act (“CWA” or “the Act”), 33 U.S.C.

§§1251, et seg. (2001), was enacted in 1972 to “restore and

maintain the chemical, physical, and biological integrity of

the Nation’s waters.” 33 U.S.C. §1251(a). The Act makes it

unlawful for “anyone to discharge pollutants into the

Nation’s waters except pursuant to a permit.” Milwaukee

v. Illinois, 451 U.S. 304, 310 (1987); 33 U.S.C. §1311(a),

§1342. “Discharge of a pollutant” is defined as “any andi-

tion of any pollutant to navigable waters from any point

source.” 33 U.S.C. §1362(12). Section 402 of the Act, 33

U.S.C. §1342, establishes a national pollutant discharge

elimination system (“NPDES”) and directs the EPA to

issue permits for the discharge of pollutants in accordance

with effluent limitations set by the EPA pursuant to 33

U.S.C. §1312. States are authorized to assume responsibil-

ity for administering the NPDES program under the EPA’s

oversight. 33 U.S.C. §1342(b). Colorado has established an

EPA-approved NPDES program. See Colorado Water

Quality Control Act, at COLO.REV.STAT. (“C.R.S.”) §§25-

8-501, et seg. (2002); 33 U.S.C. §1342(b). The CWA empow-

ers citizens to bring civil actions against any person who

fails to comply with the requirements of the CWA or with

the terms of an NPDES permit. 33 U.S.C. §1365(a) and (f).

B. Background

The following facts are undisputed. Plaintiff Sierra

Club is a national conservation organization “dedicated to

exploring, enjoying and protecting the wild places of the

* The terms “pollutant,” “point source” and “navigable waters” are

defined at 33 U.S.C. §1362(6), (7) and (14).

App. 37

earth” and “to practicing and promoting the responsible

use of the earth’s ecosystems and resources.” (Compl., 177)

Plaintiff Mineral Policy Center is a public interest non-

profit organization “dedicated to protecting the communi-

ties and the environment by preventing the environmental

impacts associated with mining and mineral development,

and by cleaning up pollution caused by mining.” (/d., 48)

Defendant El Paso Gold Mines, Inc. (“El Paso”) owns

the El] Paso Gold Mine, E] Paso shaft and related mineral

rights located in Teller County, Colorado. (Pretrial Order,

stipulation n; Amended Answer, 995, 12) El Paso’s prop-

erty is located within the Cripple Creek Mining District

and is included in the mine permit boundary of the Cripple

Creek and Victor Gold Mine, an active gold mine permit-

ted by the Colorado Division of Minerals and Geology.

(Pretrial Order, stipulation j; Amended Answer, (917, 18)

The Mining District contains underground tunnels, shafts,

drains, adits, laterals, mine workings, stopes and pipes.

(Amended Answer, 420) The Roosevelt Tunnel is a six-mile

man-made underground tunnel that was constructed to

drain water from mines in the Cripple Creek Mining

District. (Pretrial Order, stipulation e; Amended Answer,

4121-22) The E] Paso shaft is connected to the Roosevelt

Tunnel. (Pretrial Order, stipulation g) A series of under-

ground mine wrkings are connected to the El Paso shaft.

(Plaintiffs’ Ex. 11, Expert Report of Robert Brogden,

Appendix D) Samples taken from water flowing into the

Roosevelt Tunnel from the E] Paso shaft contain zinc and

manganese. (Plaintiffs’ Ex. 3, El Paso Gold Mines, Inc.’s

Answer [to Notice of Violation/Cease and Desist Order]

and Request for Hearing, 49; Plaintiffs’ Exs. 23, 24 and 58, .

water sample reports)

App. 38

Multiple properties, including defendant’s property,

overlie, connect to, are drained by the Roosevelt

Tunnel. (Pretrial Order, sti

along the Shelf Road, Count Road 88 in Teller County.

(Pretrial Order, stipulation i; ended Answer, 440) The

Roosevelt Tunnel portal di es water into Cripple

Creek. (Plaintiffs’ Ex. 3, 6) Cripple\Creek is a tributary of

Fourmile Creek, which is a tributary of the Arkansas

River. (Jd.) Samples taken from the water flowing from the

Roosevelt Tunnel portal into Cripple Creek contain zinc

and manganese. (Pretrial Order, stipulation o; Plaintiffs’

Ex. 3, 410; Defendant’s Amended Answer, 24) Some of the

water which enters the Roosevelt Tunnel from the El Paso

shaft is released into Cripple Creek at the Roosevelt

Tunnel portal. (Plaintiffs’ Exs. 17, 30, Affidavit and Expert

Report of Kenneth Kico; Defendant’s Ex. A-8(A) and (B),

Affidavit, Expert Report and Rebuttal Report of Robert E.

Brogden) Defendant does not have an NPDES permit to

discharge pollutants from the E] Paso shaft and Roosevelt

Tunnel into Cripple Creek. (Pretrial Order, stipulation k;

Amended Answer, 447)

Il,

The parties have filed cross motions for summary

judgment concerning the defendant’s lianility for violating

the CWA. Plaintiffs also move for sumr “ary judgment on

their constitutional standing to bring this action.

The purpose of summary judgment is to determine

whether trial is necessary. White v. York Int'l. Corp., 45

F.3d 357, 360 (10th Cir. 1995). Summary judgment is

appropriate under Fed.2.Civ.P. 56(c) when the “pleadings,

App. 39

depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.”

The movant bears the initial burden to “point to those

portions of the record that demonstrate an absence of a

genuine issue of material fact given the relevant substan-

tive law.” Thomas v. Wichita Coca-Cola Bottling Co., 968

F.2d 1022, 1024 (10th Cir. 1992). If this burden is met, the

nonmovant must “come forward with specific facts show-

ing that there is a genuine issue for trial as to elements

essential to [the nonmovant’s claim].” Martin v. Nannie

and the Newborns, Inc., 3 F.3d 1410, 1414 (10th Cir. 1993)

(internal citations omitted). The nonmovant has the

burden to show that there are genuine issues of material

fact to be determined. Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986). The court views the evidence of record

and draws all reasonable inferences in the light most

favorable to the nonmovant. Thomas v. International

Business Machines, 48 F.3d 478, 484 (10th Cir. 1995). To

defeat a properly supported motion for summary judg-

ment, “there must be evidence upon which the jury could

reasonably find for the plaintiff.” Panis v. Mission Hills

Bank, N.A., 60 F.3d 1486, 1490 (10th Cir. 1995) (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).

Conclusory allegations will not create a genuine issue of

material fact necessitating trial. White, 45 F.3d at 363.

On cross motions for summary judgment, the court

miay assume that no evidence other than that submitted

by the parties need be considered; however, summary

judgment is inappropriate if disputed issues of material

fact remain. James Barlow Family Ltd. Partnership v.

App. 40

David M. Munson, Inc., 124 F.3d 1321, 1323 (10th Cir.

1997) (internal citation omitted).

It.

A. Article III Standing

Plaintiffs move for summary judgment on their

standing to bring this citizen suit under Article III of the

Constitution. Plaintiffs sue on their own behalf, as public

interest organizations, and on behalf of their members.

Under Article III of the Constitution, a federal court

may only adjudicate an actual case or controversy. The

purpose of the standing requirement is to determine

“[w]hether a party has a sufficient stake in an otherwise

justiciable controversy to obtain judicial resolution of the

controversy.” Sierra Club v. Morton, 405 U.S. 727, 730

(1972). The party seeking to invoke the federal court's

jurisdiction bears the burden of establishing standing.

FWIPBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990).

Plaintiffs must have standing at all stages of the litiga-

tion, see National Organization for Women, Inc. v.

Scheidler, 510 U.S. 249, 255 (1994), and plaintiffs bear the

burden of proving it “with the manner and degree of

evidence required at the successive stages of the litiga-

tion.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561

(1992). Here, because plaintiffs move for summary judg-

ment, they must submit evidence to prove each element of

standing and if the evidence is controverted, the matter

cannot be decided on summary judgment. /d.

An organization has standing to bring suit on behalf

of its members if: (1) the organization’s members would

have standing to sue on their own; (2) the interests the

App. 41

organization seeks to protect are germane to its purpose;

and (3) neither the claim asserted nor the relief requested

requires individual participation by its members. Friends

of the Earth v. Laidlaw, 528 U.S. 167, 181 (2000) (citing

Hunt v. Washington Apple Advertising Comm’n, 432 U.S.

333, 343 (1977)).

An organization’s members have standing to sue on

their own if the members have suffered, or are likely to

suffer, an injury in fact which can fairly be traced to the

conduct of the defendant and which is likely to be re-

dressed by a favorable decision. Lujan, 504 U.S. at 560-61;

Valley Forge Christian College v. Americans United for

Separation of Church and State, 454 U.S. 464, 472 (1982).

It is enough for the organization to show that one of its

members has individual standing. Sierra Club v. Cedar

Point Oil Co., Inc. (“Cedar Point Oil”), 73 F.3d 546, 558,

n.24 (5th Cir. 1996); Sierra Club v. Simkins Industries,

Inc., 847 F.2d 1109, 1113 (4th Cir. 1988).

Harm to aesthetic, recreational and environmental

interests is proof of an injury in fact. Sierra Club v. Mor-

ton, 405 U.S. at 734. The quantity of the injury is not

important; an “identifiable trifle” will suffice. United

States v. Students Challenging Regulatory Agency Proce-

dures, 412 U.S. 669, 689, n. 14 (1973). To sustain a CWA

action, an individual’s interest in eliminating effluents

discharged into a water body must be more than the

concern shared by any bystander. See Sierra Club v.

Morton, 405 U.S. at 734-35; Cedar Point Oil, 73 F.3d at

556. The individual must demonstrate a connection with

the water body that is the subject of the CWA suit. Jd.

Threat of future injury is sufficient. Valley Forge, 454 U.S.

at 472.

App. 42

Plaintiffs proffer affidavits from organizational members

who state that they recreate along the “Gold Belt Tour,” a

road in the Cripple Creek Mining District which follows

Cripple Creek past the Roosevelt Tunnel portal almost to the

confluence of Fourmile Creek. (Affidavits of Marilyn Fay,

Dan Randolph, Marshall Winblood, Bill Clymer, and Kirby

Hughes, Plaintiffs’ Exs. 39, 40, 41, 42 and 43) The mem-

bers aver that their enjoyment of the Gold Belt Tour is

diminished because of the minimal amount of aquatic life

in Cripple Creek and the reduction in the quality of fishing

in recent years. (Randolph and Winblood Affidavits) Ms.

Fay does not allow her grandchildren to play in Cripple

Creek as she used to because of concern about the level of

toxicity in the water from mine drainage. (Fay Affidavit)

The organizational members are concerned that pollutants

contained in the unpermitted discharges into Cripple

Creek will adversely affect aquatic life and wildlife in the

area. (Randolph, Winblood, Clymer and Hughes Affidavits)

I find and conclude that plaintiffs have satisfied the

injury in fact requirement for Article III standing based on

the evidence that their members are concerned about the

effects of the discharges from the Roosevelt Tunnel into

Cripple Creek and that those discharges directly affect

their recreational and aesthetic interests. Friends of the

Earth, 528 U.S. at 182-83; see, also, Lujan, 504 U.S. at

562-63 (“[T]he desire to use or observe animdal-species,

even for purely esthetic purposes, is undeniably a cogniza-

ble interest for purposes of standing.”).

To satisfy the fairly traceable prong, plaintiffs need

not demonstrate to a scientific certainty that defendant’s

discharge is solely responsible for the harm suffered.

Public Interest Research Group of New Jersey, Inc. v.

Powell Duffryn Terminals, Inc. (“Powell Duffryn”), 913

App. 43

F.2d 64, 72 n. 8 (3rd Cir. 1990). Plaintiffs must show that

defendant has (1) discharged some pollutant without a

permit, or in concentrations greater than allowed by its

permit, (2) into a waterway in which the plaintiff has an

interest that is or may be adversely affected by the pollut-

ant, and (3) that this pollutant causes or contributes to the

kinds of injuries alleged by the plaintiff. Jd., at 72; Cedar

Point Oil, 73 F.3d at 558; see, also, Friends of the Earth,

Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 161-

62 (4th Cir. 2000).

Plaintiffs have produced evidence that the El] Paso

shaft, which is located on property owned by defendant,

carries water containing pollutants (zinc and manganese)

to the Roosevelt Tunnel and that the Roosevelt Tunnel

portal discharges the same pollutants into-Cripple Creek.

The evidence is uncontroverted that at least some of the

water that enters the Tunnel from the E! Paso shaft flows

to the Tunnel portal and into Cripple Creek. (Expert

Reports of Kenneth Klco and Robert E. Brogden) Zinc is a

known aquatic toxin. (Plaintiffs’ Exs. 21 and 61, Affidwvit

and Expert Report of Ann Maest, PhD, {7) Plaintiffs thus

have sufficiently demonstrated, under the Powell Duffryn

test, that El Paso has discharged a pollutant (or pollut-

ants) without a permit into Cripple Creek, a waterway in

which Sierra Club and Mineral Policy Center members

have an interest, and that pollutants in that water

threaten the number of aquatic species in Cripple Creek. I

find and conclude that plaintiffs have demonstrated that

their stated injuries are fairly traceable to the defendant’s

unpermitted discharges.

Redressability focuses on the plaintiff’s injury and the

judicial reiief sought. Plaintiffs seek declaratory and

injunctive relief, civil penalties, and their litigation costs

App. 44

and attorney fees. Under 33 U.S.C. §1365(a)(1), district

courts have jurisdiction to issue injunctive relief to enforce

an effluent standard or limitation’ and to assess any

appropriate civil penalties under 33 U.S.C. §1319(d). The

court may also award a prevailing party in a citizen suit

its costs and attorney fees. 33 U.S.C. §1365(d). The statu-

tory remedies can redress the harms alleged by plaintiffs

and their members. See Friends of the Earth, 528 U.S. at

185-86. Further, the issuance of civil penalties serves to

deter defendant from future violations of the CWA. Id.

I find and conclude as a matter of law that plaintiffs

have Article III standing to bring this citizen suit on

behalf of themselves and their members. Plaintiffs have

adduced unrebutted evidence to prove an injury in fact to

their recreational interests, which fairly can be traced to

E] Paso’s discharges of pollutants into Cripple Creek

without an NPDES permit, and which is redressable by

the requested relief.

B. Subject Matter Jurisdiction: “Ongoing

Violation” Requirement

Defendant argues that the court lacks subject matter

jurisdiction over this citizen suit because the residual

effects of past mining activity on defendant’s property are

not actionable as an ongoing violation of the CWA.

Section 505 of the CWA confers jurisdiction over

_ citizens suits brought against any person “alleged to be in

* The phrase “effluent standard or limitation” includes, inter alia,

“an unlawful act under section 1311 or 1312 of this title;” and “a permit

or condition thereof issued under section 1342 of this title ... ” 33

US.C. §1365(.

App. 45

violation of” the Act. 33 U.S.C. §1365(a). In Gwaltney of

Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484

U.S. 49, 64 (1987), the Supreme Court held that Section

505 does not permit a citizen suit based on “wholly past

violations.” At the pleading stage, the plaintiff must make

a good faith allegation of a continuing or intermittent

violation on the date the complaint is filed. Jd. On sum-

mary judgment, there must be sufficient evidence in the

record to support a finding by the trier-of-fact that defen-

dant engaged in continuing or intermittent violations of

the CWA after suit was filed, or that there was a continu-

ing likelihood that intermittent or sporadic violations

would recur. See Connecticut Coastal Fishermen’s Ass’n v.

Remington Arms Co., Inc., 989 F.2d 1305, 1311 (2nd Cir.

1993); Natural Resources Defense Council v. Texaco Refin-

ing, 2 F.3d 493, 501 (3rd. Cir. 1993); Chesapeake Bay

Foundation v. Gwaltney of Smithfield, Ltd. (Gwaltney ID),

844 F.2d 170, 171-72 (4th Cir. 1988) (per curiam); Carr uv.

Alta Verde Indust., Inc., 931 F.2d 1055, 1062 (5th Cir.

1991); Sierra Club v. Union Oil Co. of Calif. , 853 F.2d 667,

671 (9th Cir. 1888).

Defendant relies on Hamker v. Diamond Shamrock

Chemical Co., 756 F.2d 392, 397 (5th Cir. 1985) in support

of its position that plaintiffs have failed to demonstrate an

ongoing violation of the CWA. In Hamer, plaintiffs

brought a citizen suit against the defendant after a pipe-

line leaked 2400 barrels of crude oil into the soil and a

creek. The Hamker plaintiffs argued that the residual

effects of the leak threatened groundwater because of

continuing seepage. The Fifth Circuit dismissed the

complaint because plaintiffs had failed to allege a continu-

ing addition of pollutants to groundwater from a point

source. /d. at 397. The court held that “[mJere continuing

App. 46

residual effects resulting from a [past] discharge are not

equivalent to a continuing discharge.” Jd.

Defendant also relies on Connecticut Coastal Fisher-

men’s Ass’n, 989 F.2d 1305. There, the alleged discharger

was a trap and skeet shooting club which had deposited

tons of lead shot and millions of pounds of clay target

fragments on the land around the club and in the adjacent

waters of Long Island Sound over a seventy-year period.

The court granted summary judgment in favor of defen-

dant in plaintiff’s citizen suit because defendant had

ceased operation of the gun club by the time plaintiff

commenced its action. 989 F.2d at 1312, 1313. The Second

Circuit concluded that there was no reasonable likelihood

that defendant would discharge lead shot in the future. Jd.

at 1312. The court rejected plaintiff's argument that the

lead shot previously deposited in the water was a point

source discharging pollutants as it dissolved. Jd. at 1313.

The court stated that “[t]he present violation requirement

of the Act would be completely undermined if a violation

included the mere decomposition of pollutants.” Id.; see,

also, Friends of Santa Fe County v. LAC Minerals, Inc.,

892 F.Supp. 1333, 1354 (D.N.M. 1995) (stating that

“[mjigration of residual contamination resulting from

previous releases is not an ongoing discharge within the

meaning of the [Clean Water] Act”); Wilson v. Amoco Corp.,

33 F.Supp.2d 969, 975 (D.Wyo. 1998) (holding that pres-

ence of PCE contaminants in groundwater from past

operations which migrated to North Platte River did not

support a CWA citizen suit and stating that “only in rare

circumstances will an ongoing CWA violation exist when

the facilities from which the contaminants are emanating

have themselves ceased operating”); Aiello v. Town of

Brookhaven, 136 F.Supp.2d 81 (E.D.N.Y. 2001) (holding

App. 47

that a past polluter cannot be held liable for ongoing

discharges when a pollutant previously added to ground-

water continues to reach a navigable water); but see

Werlein v. United States, 764 F.Supp. 887, 896-897

(D.Minn. 1990) (holding that past discharge of toxic waste

into the soil was a ongoing violation of the CWA where

toxic waste was being introduced to a waterway over time

by rainwater infiltration), vacated in part on other

grounds, 793 F.2d 898 (8th Cir. 1992).

Plaintiffs argue that the CWA regulates the ongoing

discharge of pollutants from a point source into waters of

the United States whether or not the point source dis-

charge is the result of present or past industrial activity.

Plaintiffs rely on Umatilla Waterquality Protective Ass’n,

Inc. v. Smith, 962 F.Supp. 1312, 1322 (D.Or. 1997). In that

case, the district court held that, assuming discharges of

pollutants through hydrologically-connected groundwater

are subject to regulation under the CWA, a discharge of

residual pollutants collected in an unlined brine pond is an

ongoing discharge from a point source, “even if the dis-

charger is no longer adding pollutants to the point source

itself.” 962 F.Supp. at 1322. The court reasoned that the

focus of the CWA is “on whether the pollutants reach

navigable waters from a point source.” Jd.

The cases cited by El Paso are inapplicable here

because the factual circumstances did not involve an

ongoing discharge of pollutants from a point source into

navigable waters. Instead, the continuing migration of

pollutants into navigable waters was occurring because of

a past discharge from a point source. Here, the evidence is

that the E) Paso shaft carries polluted water to the Roose-

velt Tunnel and some of that polluted water flows from the

Roosevelt Tunnel portal into Cripple Creek.

App. 48

In Section ITI.C, infra, I find and conclude that defen-

dant’s discharges from the El Paso shaft are subject to

(OWA regulation and that E] Paso has violated the Act. The

eridence further demonstrates a continuing likelihood of a

recurrence in intermittent or sporadic violations of the Act.

“Intermittent or sporadic violations do not cease to be

ongoing until the date when there is no real likelihood of

repetition.” Gwaltney II, 890 F.2d at 693; see, also, Sierra

Club v. Union Oil Co. of California, 853 F.2d at 671; Carv,

931 F.2d at 1062. Reports of inspections from the interior

of the Roosevelt Tunnel in the 1990’s and in 2001 show

that the El Paso shaft contributes to the flow that is

discharged from the Tunnel portal. See discussion infra,

Section III.C.4. Moreover, defendant admits that “it has

taken no action to ... reduce pollutant concentrations in

the effluent flow from the Roosevelt Tunnel.” (Amended

Answer, 442) Because there is no evidence that El Paso’s

intermittent or sporadic violations of the CWA are not

likely to recur, I find and conclude that I have subject

matter jurisdiction over this citizen suit.

C. Liability

To establish a violation of the CWA, plaintiffs must

prove that El Paso: (1) discharged (“added”), (2) a pollut-

ant, (3) into navigable waters, (4) from a point source, (5)

without a permit. 33 U.S.C. §1311(a}, §1362(12); Commit-

tee to Save Mokelumne River v. East Bay Mun. Util.

District, 13 F.3d 305, 308 (9th Cir. 1993); Natl Wildlife

Federation v. Gorsuch, 693 F.2d 156, 165 (D.C.Cir. 1982).

Defendant, a corporation, is a “person” subject to the

permitting requirements of the Act. 33 U.S.C. § 1362(5).

Defendant concedes that the zinc and manganese contained

App. 49

in water samples taken from the El Paso shaft and the

Roosevelt Tunnel portal are “pollutants” as definec by the

Act.’ (Plaintiffs’ Ex. 3, 9-11); see, also, Committee to Save

Mokelumne River, 13 F.3d at 208 (stating that acid mine

drainage is a “pollutant” under the CWA) Defendant also

concedes that it does not have a discharge permit. (Pre-

trial Order, stipulation k)

1. Point source

Defendant argues that the Roosevelt Tunnel is not a

point source because water infiltrates into and exfiltrates

out of the Tunnel along its six-mile length. Plaintiffs

contend that the El Paso shaft, related mine workings and

the Roosevelt Tunnel are “point sources” as defined by the

CWA. .

The CWA defines “point source” as

any discernible, confined and discrete convey-

ance, including but not limited to any pipe, ditch,

channel, tunnel, conduit, well, discrete fissure,

container, rolling stock, concentrated animal

feeding operation, or vessel or other floating

craft, from which pollutants are or may be dis-

charged. This term does not include agricultural

stormwater discharges and return flows from ir-

rigated agriculture.

* The term “pollutant” includes dredged spoil, solid waste, incin-

erator residue, filter backwash, sewage, garbage, sewage sludge,

munitions, chemical wastes, biological materials, radioactive materials

(except those regulated under the Atomic Energy Act of 1954 . . . ), heat,

wrecked or discarded equipment, rock, sand, cellar dirt and industriai,

municipal, and agricultural waste discharged into water. 33 C.F.R.

122.2; see, also, C.R.S. §25-8-103(15)(2002) (setting forth substantially

similar definition of pollutant).

App. 50

33 U.S.C. §1362(14). “The concept of a point source was

designed to ... embracie] the broadest possible definition

of any identifiable conveyance from which pollutants

might enter the waters of the United States.” United

States v. Earth Sciences, Inc., 599 F.2d 368, 373 (10th Cir.

1979).

The term “tunnel” is expressly included within the

Act’s definition of “point source.” The Roosevelt Tunnel is a

six-mile man-made tunnel designed and built to drain

water from mining operations in the Cripple Creek Mining

District. The evidence shows that water flows exiting the

Tunnel into Cripple Creek contain pollutants. Accordingly,

I find and conclude that the Roosevelt Tunnel is a point

source as defined by the CWA. See Catskill Mountains

Chapter of Trout Unlimited, Inc. v. City of New York, 273

F.3d 481, 493 (2d Cir. 2001) (concluding that water diver-

sion tunnel was a point source. )

The El Paso shaft and mine workings are man-made

conveyances which carry pollutants into the Roosevelt

Tunnel. (Expert Report of Ann Maest) Plaintiffs’ expert

geochemist, Ann Maest, opines that the El Paso shaft and

related underground mine workings contain minerals that

release metals and other contaminants into the infiltrat-

ing precipitation flowing through the underground work-

ings and the El Faso shaft. (Maest Report) The El Paso

shaft discharges the polluted water into the Tunnel. (/d.)

Further, the EPA’s position is that abandoned and active

mine adits and mine workings are point sources. (Plain-

tiffs’ Exs. 48 and 58, December 22, 1993 Letter from Max

Dodson, Director of the Water Management Division of

Region VIII of the EPA to Montana Department of Health)

App. 51

Although the EPA policy statement is not entitled to

Chevron‘ deference, agency interpretations in opinion

letters are “entitled to respect” to the extent those inter-

pretations have the “power to persuade.” Christenson v.

Harris County, 529 U.S. 576, 587 (2000). Because the

EPA’s interpretation of a “point source” is consistent with

Earth Sciences, Inc., I join the other district courts which

have found it persuasive. See Beartooth Alliance v. Crown

Butte Mines, 904 F.Supp. 1168, 1175 (D.Mont. 1995); Gill

v. LDI, 19 FSupp.2d 1188, 1196-97 (W.D. Wa. 1998);

Washington Wilderness Coalition v. Hecla Mining Co., 870

F.Supp. 983, 988-89 (E.D.Wash. 1994). Accordingly, | find

and conclude that the E] Paso shaft and any mine work-

ings connected to the El Paso shaft are “point sources.”

2. “Navigable waters”

Defendant next contends that Cripple Creek is not a

“navigable water” because it is not “navigable in fact.”

The term “navigable waters” means “waters of the

United States.” 33 U.S.C. §1362(7). “Waters of the United

States” has been defined very broadly to include all

waters susceptible to use in interstate commerce; all

interstate waters; all other waters the use or degradation

of which could affect interstate or foreign commerce,

including waters which could be used by interstate or

foreign travelers for recreational purposes, waters from

which fish are or could be taken and sold in interstate or

* Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. 837, 842-44 (1984). In Chevron, the Supreme Court held that a

court must give effect to an agency’s regulation that reasonably

interprets an ambiguous statute.

App. 52

foreign commerce, or waters which could be used for

industrial purposes in interstate commerce; all impound-

ments of waters which otherwise meet the definition of

“waters of the United States”; and tributaries of waters

which meet the definition of “waters of the United States.”

40 C.F.R. §122.2.

A water receiving pollutants need not be navigable in

fact to be regulated by the CWA. See United States v.

Riverside Bayview Homes, Inc., 474 U.S. 121, 133 (1985).

The requirements of the Act are met if the receiving water

is hydrologically connected to a water which meets the

definition of “waters of the United States,” even if the

receiving water flows on an intermittent basis. Quivera

Mining Co. v. United States EPA, 765 F.2d 126, 129 (10th

Cir. 1985) (concluding that arroyos and creek beds carry-

ing water on an intermittent basis are protected by the

Act); see, also, United States v. Texas Pipe Line Co., 611

F.2d 345, 347 (10th Cir. 1979) (stating that the Act covers

tributaries of “waters of the United States,” even if the

tributary does not flow continuously).

I take judicial notice that the Arkansas River is an

interstate water. Defendant concedes that Cripple Creek is

a tributary of Fourmile Creek, which is a tributary of the

Arkansas River. (Plaintiffs’ Ex. 3, 46) A “tributary” is a

“stream which contributes its flow to a larger stream or

other body of water.” RANDOM HOUSE COLLEGE

DICTIONARY 1402 (rev. ed. 1980). Thus, by definition, a

tributary of a river is hydrologically connected to that

App. 53

river. Accordingly, I find and conclude that Cripple Creek

is a navigable water as defined by the CWA.”

3. Discharge (i.e., “addition”)

Defendant also maintains that it is not subject to the

Act’s permitting requirements because it is a “passive”

* Defendant also argues that the CWA’s regulation of pollutants

discharged into “navigable waters” was restricted by the Supreme

Court’s decision last year in Solid Waste_Agency of Northern Cook

County v. United States Army Corps of Engineers, 531 U.S. 159 (2001).

There, the Court invalidated a 1986 Army Corps of Engineers’ “Migra-

tory Bird Rule,” which defined “waters of the United States” to include

intrastate waters with no connection to any navigable waters, but

which were or would be used as habitat by migratory birds. See 51 Fed.

Reg. 41206, 41217 (1986) (setting out Corps’ interpretation). The Court

rejected the Corps’ argument that “isolated ponds, some only seasonal,

wholly located within two Illinois counties, fall under [the] definition of

‘navigable waters’ because they serve as habitat for migratory birds.”

531 U.S. at 171-72. The Supreme Court held that the Corps’ interpreta-

tion exceeded its authority under the CWA and “result[ed] in a signifi-

cant impingement of the States’ traditional and primary power over

land and water use.” Jd. at 174.

Solid Waste did not invalidate the EPA’s regulation defining

“waters of the United States” to include tributaries of interstate or

navigable waters. See Idaho Rural Council v. Bosma, 143 F.Supp.2d

1169, 1178 (D.Idaho 2001) (“Though the Supreme Court [in Solid

Waste] has recently articulated its unwillingness to read the term

‘navigable’ entirely out of the CWA, it also made clear that waters of

the United States include at least some waters that are not navigable

in the classical sense, such as non-navigable tributaries and streams.”);

United States v. Interstate General Co., 152 F.Supp.2d 843, 847 (D.Md.

2001) (describing Solid Waste as “a narrow holding” limited to the

Migratory Bird Rule and not affecting regulations defining navigable

waters to include non navigable tributaries and streams); Aiello, T36

F .Supp.2d at 119 (holding that “non-navigable tributaries of navigable

waters [are] waters of the United States under the CWA”); California

Sportfishing Protection Alliance v. Diablo, 209 F.Supp.2d 1059, 1075

(E.D.Cal. 2002) (stating that Solid Waste “does not alter the rule that

tributaries are ‘navigable waters’ under the Act.”)

App. 54

owner of a historic mining property. Plaintiffs argue that

the CWA proscribes any discharge from a point source

without a permit, whether or not the landowner has

engaged in affirmative action to cause the discharge.

The CWA defines “discharge of a pollutant” as “any

addition of any pollutant to navigable waters from any

point source.” 33 U.S.C. §1362(12). The Act does not define

the term “addition” and the legislative histery is silent

about the term’s meaning. See Catskill Mountains Chapter

of Trout Unlimited, 273 F.3d at 493; National Wildlife

Federation v. Gorsuch, 693 F.2d at 175; see, also, S.Rep.

No. 92-414 (1972), reprinted in 1972 U.S.C.C.A.N. 3668.

The federal regulations EPA promulgated provide that

“any addition of any pollutant” includes “additions of

runoff which is collected or channeled by man; discharges

through pipes, sewers or other conveyances owned by a

State, municipality, or other person which do not lead to a

treatment works; and discharges through pipes, sewers, or

‘other conveyances, leading into privately owned treatment

works.” 40 C.F.R. §122.2.

El Paso does not contend that point source discharges

at inactive mine sites are entirely exempt from NPDES

regulation. Indeed, the case law is to the contrary. See

Committee to Save Mokelumne River, 13 F.3d at 308-09

(holding district liable in citizen suit for unpermitted point

source discharges based on the district’s channeling of

mine drainage from an abandoned mine site into a man-

made faciiity which was then released over the dam’s

spillway or through its valve into a river); Beartooth

Alliance, 904 F.Supp. at 1172-74 (holding that man-made

adit and pits on “abandoned” mine sites that discharged

mine drainage into creeks were point sources regulated by

App. 55

the CWA); see, also, American Mining Congress v. U.S.

EPA, 965 F.2d 759, 767 (9th Cir. 1992) (holding that EPA

could require stormwater discharge permits for inactive

mining operations and stating that “[ajll point sources

that discharge pollutants, including point sources that

discharge pollutants from inactive mines, require a per-

mit.”). Moreover, the EPA has issued a policy statement

that “discharges from mine adits at historic or active

mines [including seeps and other groundwater discharges

hydrologically connected to surface water from mines] are

point sources and are required to have an NPDES permit

if pollutants are being discharged to waters of the United

States.” (Plaintiffs’ Exs. 48, 58).

El] Paso argues however, that the CWA does not

regulate point source discharges from inactive mines in

the absence of an affirmative act by the property owner to

facilitate the discharge. It is undisputed that defendant

has never engaged in mining operations on the E] Paso

gold mine property® and did not construct the El Paso

shaft, related mine workings, or the Roosevelt Tunnel.

Committee to Save Mokelumne River and Beartooth Alli-

ance are therefore factually distinguishable from the

instant action because the defendants in those cases

had been engaged in active mining operations on the

* I note the evidence that a representative from Cripple Creek &

Victor Gold Mine Company drilled three holes in the ground near the El

Paso shaft in 1991 or 1992 without any follow up activity. (See Plain-

tiffs’ Ex. 7, Affidavit of Dudley K. Wiltse, Jr.; Defendant’s Ex. 11,

Affidavit of Jeff Pontius) However, I do not consider this single incident

to constitute mining activity of any significance.

App. 56

abandoned mining property or had participated in the

construction of the point source.’

Defendant cites Froebel v. Meyer, 217 F.3d 928 (7th

Cir. 2000) in support of its position that mere ownership of

property does not require an NPDES permit. Froebei

involved a citizen suit against the State of Wisconsin and

Waukesha County under Section 404 of the CWA, 33

U.S.C. $1344. The State removed a dam built in 1850 and

the plaintiff alleged that water passing through the

opening where the dam used to be scoured silt and sedi-

ment off the bottom of the impoundment and deposited it

downstream. The County did not participate in the dam

removal, but owned the property where the dam had been

located. The Seventh Circuit dismissed the County as a

defendant because a landowner who “doles] absolutely

nothing at all” is not obligated to comply with the Act’s

Section 404 dredge and fill permit requirements. 217 F.3d

at 938. The CWA defines “discharge of dredged material”

as “any addition of dredged material into, including

redeposit of dredged material other than incidental fall-

back within, the waters of the United States.” 33 C.F.R.

§323.2(dX1). A “discharge of fill material” is “the addition

” In Committee to Save Mokelumne River, the East Bay Municipal

District acquired a portion of an abandoned mine property to build

a reservoir. The District constructed a dam, surface impoundment,

drainage ditches, pipes, culverts and channels (“the Penn Mine

facility”) to capture contaminated surface runoff flowing through the

mine site and to reduce the threat of continued toxic runoff. Occasion-

ally, polluted water that collected in the Penn Mine facility passed over

the spillway or through the dam’s discharge valve into the Mokelumne

River and the reservoir.

In Beartooth Alliance, defendants Crown Butte Mines and Crown

Butte Resources owned or had operated the abandoned adit and pits

when the site was an active mine.

App. 57

of fill material into waters of the United States.” 33 C.F.R.

§323.2(f). The court concluded that “the reference to

‘addition’ and ‘redeposit’ strongly suggest that a Section

404 permit is required only when the party allegedly

needing a permit takes some action, rather than doing

nothing whatsoever [except continuing to own the land].”

217 F.3d at 938. The Seventh Circuit emphasized that

plaintiff had not demonstrated that “dredging can be a

purely passive activity.” Id. at 938."

Defendant maintains that Congress intended the

same meaning of “discharge” (i.e., “addition”) in Sections

402 and 404 of the Act; thus, under Froebel, a passive

landowner cannot be held liable for violation of Section

402. See Nat'l Credit Union Admin. v. First Natl Bank &

Trust Co., 522 U.S. 479 (1998) (recognizing the canon of

statutory construction that similar language within the

same statutory section must be accorded a consistent

meaning)

I do not agree that the standard for imposing liability

under the CWA is the same under Sections 402 and 404.

Liability under Section 402 is premised on the ownership

or operaticn of a point source. The CWA consistently refers

to a “point source” and to the obligations imposed on an

owner or operator of a point source. See, e.g., 33 U.S.C.

* The Seventh Circuit 2’~. » ‘ected plaintiff’s claim against the

County for violation of Sectio. « 2 of the CWA because the former dam

impoundment and the unres' - ned river channel where the dam used

to be did not constitute a point source. Froebel, 217 F.3d at 937-38.

* The CWA states: “Except as in compliance with this section and

sections 1312, 1316, 1317, 1328, 1342 and 1344 of this title, the

discharge of any pollutant by any person shall be unlawful.” 33 U.S.C.

§1311(a). (Emphasis supplied.)

App. 58

§1311(e) (requiring that effluent limitations established

uader the Act “be applied to all point sources of discharge

of pollutants”); §1311(g\2) (allowing “owner or operator of

a point source” to apply to EPA for modifications of limita-

tion requirements for certain unconventional pollutants);

§1314(bX4XB) (denoting “best conventional pollutant

control technology measures and practices” applicable to

any point source within particular category or class);

§1318(a) (requiring “owner or operator of any point source”

to establish and maintain records, instal] and maintain

monitoring equipment, and sample effluents); §1342(f)

(directing EPA to promulgate regulations establishing

classes, categories, types, and sizes of point sources).

“Owner or operator means the owner or operator of any

facility or activity’ subject to regulation under the NPDES

program.” 40 C.F.R. 122.2. “Facility or activity means any

NPDES ‘point source’ or any other facility or activity

(including land or appurtenances thereto) that is subject to

regulation under the NPDES program.” Id. The Act

regulates discharges of pollutants from a point source and

makes the owner responsible for those discharges.” The

EPA, through its implementation authority, issued regula-

tions equating “activity” with the point source. Nothing in

the CWA or the implementing regulations requires that

the owner of a point source engage in any activity to

facilitate the discharge from the point source. Accordingly,

* If the point source is owned by one perzon, but operated by

another, che operator is responsible for obtaining a permit. 40 C.F.R.

§122.21(b). Here, E] Paso, the owner of the El Paso shaft and connected

underground mine workings, is responsible for unpermitted discharges

of pollutarits from those point sources because there is no “operator.”

App. 59

Froebel is not persuasive authority in this Section 402

case."

I find the Fifth Circuit’s decision in Sierra Club uv.

Abston Const. Co., Inc., 620 F.2d 41 (5th Cir. 1980) instruc-

tive on the issue of whether a so-called “passive” owner of

a point source at an inactive mine site is required to

comply with Section 402 of the Act. In Abston, the defen-

dants created pits and spoil banks during their active

mining operations which eroded during rainwater runoff

and carried polluted water to Daniel Creek. The defen-

dants argued that they were not required to obtain an

NPDES permit because they had not engaged in any

affirmative act to effect a discharge. The Fifth Circuit

rejected the defendants’ argument because “(t]he ultimate

question is whether pollutants were discharged from

‘discernible, confined, and discret’: conveyance(s)’ either by

gravitational or nongravitational means.” 620 F.2d at 45.

” Defendant also relies on the following language in National .

Wildlife Federation v. Consumers Power Co., 862 F.2d 580 (6th Cir.

1988) in support of its position that Congress’ use of the word “addition”

contemplates affirmative activity: “F ad Congress wanted to use CWA

§402 to regulate all sources of pollution, it would easily have chosen

suitable language, e.g., all pollution released through a point source.’

... Instead, Congress chose the word ‘addition.’” 862 F.2d at 584

(quoting Gorsuch, 693 F.2d at 176) (internal quotation omitted). In

Consumers Power Co. and Gorsuch, the Sixth Circuit held that water

quality changes caused by a dam did not constitute the “addition” of

pollutants to a water of the United States. The Sixth Circuit adopted

the EPA’s construction that an “addition” requires the physical

introduction of a pollutant into water from the outside world. Gorsuch,

693 F.2d at 175; Consumers Power Co., 862 F.2d at 584. Gorsuch and

Consumers Power Co. involved water quality changes resulting from

the impoundment and recirculation of water and do ~ t offer any

support for El Paso’s position in this case that a “passive owner” of a

point source is not obligated to comply with Sections 301 and 402 of the

CWA.

App. 60

The Fifth Circuit held that surface runoff collected or

channeled by the operator constituted a point source

discharge. In addressing liability under the Act, the Fifth

Circuit stated: “Nothing in the Act relieves miners from

liability simply because the operators did not actually

construct those conveyances, so long as they are reasona-

bly likely to be the means by which pollutants are ulti-

mately deposited into a navigable body of water.” 620 F.2d

at 45. I concur with the Abston decision which recognizes,

albeit in dicta, that ownership of a point source, without

more, is enough to trigger liability under the CWA if the

point source is the means by which pollutants enter

waters of the United States.

E] Paso maintains that if Congress intended to regu-

late based on ownership of property only, it would have

expressly stated as much by proscribing the “movement”

or “drainage” of pollutants, rather than using the term

“addition” which implies affirmative conduct. Defendant

contrasts CERCLA” wherein Congress imposed liability

on any owner or.operator for a “release” of a hazardous

substance through “leaking,” “escaping,” and “leaching.”

42 U.S.C. §960 1(22).” Defendant thus argues that the EPA

has exceeded its statutory authority to the extent that the

“ Comprehensive Environmental Resource, Compensation and

Liability Act of 1980, 42 U.S.C. §§9601, et seq. (1995).

* CERCLA makes liable “the owner and operator of a . . . facility”

from which there is a release or a threatened release of a hazardous

substance. 42 U.S.C. § 9607(a). “Facility” means a structure or “any site

or area where a hazardous substance has been deposited, stored,

disposed of, or placed.” 42 U.S.C. §9601(9). “Release” includes “any

spilling, leaking, pumping, pouring, emitting, emptying, discharging,

injecting, escaping, leaching, dumping, or disposing into the environ-

ment...” 42 U.S.C. §9601(22).

App..61

EPA Region VIII policy statement regulating the discharge

of pollutants from inactive mines purports to impose

liability on “passive” landowners. See Federal Election

Commission v. Democratic Senatorial Campaign Commit-

tee, 454 U.S. 27, 32 (1981) (stating that judiciary must

reject administrative constructions of the statute that are

“inconsistent with the statutory mandate or that frustrate

the policy that Congress sought to implement.”)

Defendant’s arguments fail to persuade me. The key

to liability under the CWA is the ownership or operation

of a point source which “adds” pollutants to navigable

waters. A point source “adds” pollutants by conveying,

releasing, spilling, overflowing, seeping or leaching the

pollutants into navigable waters. See, e.g., Earth Sciences;

Inc., 599 F.2d at 373-74 (“escape” of polluted water from a

sump pit, through “overflow” or from a “fissure in the dirt

berm”); Abston Construction Co., 620 F.2d at 45 (sediment

basin overflow); Committee to Save Mokelumne River, 13

F.3d at 308-09 (pollutants conveyed through dam’s dis-

_ charge valve and overflowing the dam’s spillway); Wash-

ington Wilderness Coalition, 870 F.Supp. at 985, 988-89

(seeping and leaching of pollutants from mine tailing

ponds). Accordingly, some of the same occurrences that

constitute a “release” under CERCLA are a “discharge”

regulated under the CWA as long as the pollutants reach a

navigable water by means of a point source.

The focus of the Clean Water Act is not on the activity

which results in the point source discharge, but is rather

on the point source discharge itself. The CWA was “de-

signed to regulate to the fullest extent possible those

sources emitting pollution into rivers, lakes and streams.”

Earth Sciences, Inc., 599 F.2d at 373; 33 U.S.C. §1251(a). If

Congress wanted to exempt point source discharges from

App. 62

“passive” landowners from NPDES regulation, it would

have used more restrictive language. Instead, Congress

clearly manifested its intent to regulate “any addition of

any pollutant to navigable waters from any point source.”

33 U.S.C. §1362(12). El Paso does not point to any lan-

guage in the CWA or the EPA’s implementing regulations

to support its position that the owner of a point source is

not responsible for unpermitted discharges if the owner

did not engage in any affirmative activity to facilitate the

discharge.

Finally, I am not persuaded by defendant’s concern

that. plaintiffs’ construction of the CWA will create poten-

tial liability for the owners of thousands of inactive mining

sites and will likely result in a flood of citizen suits be-

cause there are more than 23,000 abandoned mines in

Colorado. (See Plaintiffs’ Ex. 14, Colorado Mining Water

Quality Task Force Report and Recommendations Regard-

ing Water Quality Impacts from Abandoned or Inactive

Mined Lands, p. 5) The possibility that the federal courts

will be inundated with citizen suits is not a reason to

adopt the defendant’s construction of the Act.

I find and conclude as a matter of law that the CWA

regulates point source discharges from inactiv~ mines,

even if the owner of the point source has never conducted

mining activity on the mining property and did not con-

struct the point source. Accordingly, E] Paso must comply

with NPDES permitting requirements if the polluted

water brought into the Tunnel through the El Paso shaft is

ultimately discharged into Cripple Creek.

App. 63

4. Liability for the discharge of pollut-

ants into Cripple Creek

Plaintiffs move the court for the entry of summary

judgment in their favor on defendant’s liability for dis-

charging pollutants into Cripple Creek from the E] Paso

shaft and the Roosevelt Tunnel withovt an NPDES permit.

I have concluded that the El] Paso shaic, connected mine

workings and the Roosevelt Tunnel are point sources and

that Cripple Creek is a navigable water. The evidence is

undisputed that water containing zinc and manganese is

discharged from the El Paso shaft into the Tunnel and

from the Tunnel into Cripple Creek. It is also undisputed

that zinc and manganese are pollutants and that defen-

dant does not have an NPDES permit. The question

remaining is whether plaintiffs have established a hydro-

logical connection between the pollutants conveyed to the

Tunnel through the El Paso shaft and related mine work-

ings and the pollutants discharged at the Tunnel portal

into Cripple Creek.

Plaintiffs’ expert geologist, Kenneth Klco, opines that

at least some of the water discharged into the Roosevelt

Tunnel from the El Paso shaft ultimately flows into

Cripple Creek from the Tunnel portal. (Expert Report of

Kenneth Klco, p. 2) Kico’s conclusion is based on his Au-

gust 2001 inspection of the interior of the Tunnel when he

observed thai water flowed continuously out of the El Paso -

shaft along the Tunnel floor to the Tunnel portal and that

there was a constant discharge from the Tunnel portal into

Cripple Creek. (/d., pp. 3-4; Deposition of Kenneth Kl-o,

Defendant’s Ex. A-1, pp. 68, 73, 90-91, 137-38) Klco further

observed that beyond the El Paso shaft, the Tunnel turned

to the northwest and there was no longer a continuous

flow of water. (Klco Deposition, p. 96) Instead, there were

App. 64

only smali pools of water on the Tunnel floor. (/d., pp. 96-

97) Klico noted water seeping into the ribs and ceiling of

the Tunnel at various locations between the portal and the

El Paso shaft. (Jd., pp. 83, 118, 133) Klco testified that

precipitation flowing through fractures or faults in granite

rock can pick up pollutants such as zinc and manganese

from the rock and carry the metals away as it infiltrates

downward. (/d., pp. 143-51) Klco did not sample any of the

inflows of water seeping into the Tunnel between the El

Paso shaft and the Tunnel portal to determine if the

inflows contained zinc or manganese. (Id., pp. 154-55)

Kico estimated, based on his field observations, that

thirty gallons per minute (“g.p.m.”) of water were being

released from the E] Paso shaft into the Tunnel, an addi-

tional five to eight g.p.m. of cumulative inflows occurred in

the two and a half miles between the El Paso shaft and the

Tunnel portal, and fifteen g.p.m. were flowing out of the

Tunnel portal. (Klco Deposition, pp. 91, 135-137, 241-42)

Kico testified that not all of the water entering the Tunnel

from the El Paso shaft is discharged at the Tunnel portal

because some water exfiltrates through the Tunnel floor

along its length. UJ/d., pp. 135-137, 199-205) Kico opines,

however, based on his field observations, that at least half

the water flowing from the El Paso shaft is ultimately

discharged from the Tunnel portal. (/d., pp. 162-163, 179)

Klco further opines that the discharge rate from the

Roosevelt Tunnel is associated with changes in precipita-

tion at the surface. (Jd., pp. 159-160)

Plaintiffs’ expert environmental engineer, R

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