ELR Citation: ELR 20749
No(s). 93-K-1713 (D. Colo. Dec 8, 1993)

The court holds that the Federal Water Pollution Control Act's (FWPCA's) prohibition against discharging pollutants into navigable waters without a permit covers discharges that reach navigable waters through tributary groundwater. The court first holds it has subject matter jurisdiction over a citizen suit that alleges that a refinery violated the Act by illegally discharging pollutants into the soil and groundwater. FWPCA §505's citizen suit provision does not require a separate finding of an FWPCA violation by the U.S. Environmental Protection Agency before jurisdiction attaches. In addition, plaintiffs have asserted a claim under a federal statute sufficient to invoke district court jurisdiction. The court then holds that the citizen suit's allegations that the refinery has discharged—and continues to discharge—into the soil and groundwater beneath its site pollutants that make their way to a nearby creek, state a cause of action under the FWPCA. Although case law specifically excludes isolated, nontributary groundwater from the Act's reach, the court holds that the FWPCA prohibits discharges into tributary groundwater when such discharges migrate to surface water. Construing the term "navigable waters" to include tributary groundwater is consistent with the Tenth Circuit's broad interpretation of FWPCA terminology to give full effect to the Act's goals. The court dismisses the suit's claim for civil penalties for the national pollutant discharge elimination system's violations that allegedly occurred during a period covered by a state stipulated order and penalty agreement. The court holds that the order was issued and the penalty was assessed under state law comparable to the FWPCA's administrative penalty provisions. The phrase "comparable state law" as used in the Act does not mean that the state's regulatory authority or processes must be identical to the federal provisions. Even though it does not mandate prior public notice of enforcement proceedings, the state regulatory scheme as a whole constitutes an adequate mechanism for assessing civil penalties and protecting the public interest in enforcement actions. Moreover, plaintiffs failed to use available state-law provisions to challenge the stipulated order.

Counsel for Plaintiff
Reed Zars
Sierra Club Legal Defense Fund
1631 Glenarm Pl., Ste. 300, Denver CO 80202
(303) 623-9466

Counsel for Defendant
Daniel Patterson
Holland & Hart
555 17th St., Ste. 2900, P.O. Box 8749, Denver CO 80201
(303) 295-8000