ELR Citation: ELR 20639
No(s). CV 93-154-BLG-JDS (D. Mont. Oct 13, 1995)

The court holds that a mine adit and mine drainage pits are point sources under the Federal Water Pollution Control Act (FWPCA), and that acid mine drainage flowing into navigable waters is a pollutant for which a national pollutant discharge elimination system (NPDES) permit is required. The court first holds that the undisputed standing of three environmental groups precludes the need for the court to consider whether additional environmental groups also have standing to assert the same claims. The court next holds that defendants are liable under the FWPCA because because they are discharging pollutants into navigable water from point sources without a permit. Acid mine drainage, which contains high concentrations of aluminum, cadmium, copper, zinc, iron, and sulfuric acid, is a pollutant within the Act. And the adit and pits at issue are point sources, because they are discernable, confined, and discrete conveyances. Next the court holds that it has subject matter jurisdiction over this action. The groups made good-faith allegations of ongoing violations, and there is evidence that the violations were not wholly past, but also occurred after the groups filed the complaint. The court also holds that genuine issues of material fact as to whether two of the defendants ceased activities at the site before the suit was filed, whether they exercised sufficient control over the site and, therefore, whether the two defendants are liable under the Act as operators of the mine during periods relevant to this suit. The court holds that regardless of whether the defendants are not in compliance, the case is not moot, because civil penalties remain an issue.

Counsel for Plaintiffs
Douglas L. Honnold
Sierra Club Legal Defense Fund
11 E. Main St., Unit C, Bozeman MT 59715
(406) 586-9699

Counsel for Defendants
Dana L. Christensen
Murphy, Robinson, Heckathorn & Phillips
431 First Ave. W., Kalispell MT 59901
(406) 752-6644