ELR Citation: ELR 20661
No(s). CS-94-233-FVS (E.D. Wash. Oct 21, 1994)

The court holds that it has subject matter jurisdiction over a citizen suit that environmental organizations brought against a mining company that allegedly violated the Federal Water Pollution Control Act (FWPCA) by discharging contaminated waste water that seeps and leaches from its tailings ponds without obtaining a national pollutant discharge elimination system (NPDES) permit under the state-administered program. The court first holds that a citizen suit to enforce an "effluent limitation" under FWPCA §301(a) can be based on allegations that the mining company is discharging, without an NPDES permit, pollutants that otherwise would be subject to discharge limitations. The court next holds that the state program for issuance of NPDES permits does not supplant all other methods of FWPCA enforcement, such as citizen suits. FWPCA §402(c), which suspends the issuance of federal NPDES permits on approval of a state program, simply guarantees that the state will be the sole entity issuing NPDES permits. The U.S. Environmental Protection Agency (EPA) retains full authority to carry out its other duties under the FWPCA and to supervise state programs to ensure compliance with federal guidelines. Moreover, nothing in the language or structure of the FWPCA suggests that citizen suits are incompatible with state administration of the NPDES permit program.

The court holds that the environmental organizations' allegations are sufficient to establish that the mining company's tailings ponds are "point sources" within the meaning of FWPCA §502(14). Both precedent and EPA statements support a finding that even though runoff may be caused by rainfall or snow melt percolating through a pond, the discharge is from a point source because the pond collects and channels contaminated water into a discrete conveyance. The court notes that even if it is not certain that the ponds in this case are similar enough to those in other cases to constitute a point source under the FWPCA, dismissal would be premature because the question whether a discharge occurred from a point source is fact-laden. The court holds that since the goal of the FWPCA is to protect the quality of surface waters, any pollutant that enters such waters, whether directly or through groundwater, is subject to regulation by an NPDES permit. The court then holds that the runoff from the mining company's tailings ponds constitutes a discharge into "navigable waters" under FWPCA §402(7) because the environmental organizations allege a specific hydrological connection between seepage into groundwater and nearby surface waters.

Counsel for Plaintiffs
Michael D. Axline
Western Environmental Law Ctr.
44 W. Broadway, Ste. 200, Eugene OR 97401
(503) 485-2471

Counsel for Defendants
Mark Wielga, Elizabeth H. Temkin
Ballard, Spahr, Andrews & Ingersoll
1225 17th St., Ste. 2300, Denver CO 80202
(303) 292-2400