ELR Citation: ELR 20175
No(s). 03-1105 (10th Cir. Aug 24, 2005)

The court holds that the owners of inactive mines can be liable under the Clean Water Act (CWA) §§301(a) and 402 for unpermitted discharges that occur from their land. When viewed as a whole, it is apparent the liability and permitting sections of the CWA focus on the point of discharge, not the underlying conduct that led to the discharge. Furthermore, the Act consistently refers to the obligations of the "owners and operators" of a point source, suggesting that successor landowners, such as the owner of the inactive mine in this case, are covered by the Act if they are responsible for a functional point source. The lower court, therefore, did not err in holding that the owner could be liable for discharges occurring at the inactive mine's shaft. In addition, the plaintiffs made a good-faith allegation of continuous or intermittent violations under the CWA sufficient to grant the court jurisdiction. Yet genuine issues of material fact exist as to whether pollutants actually were discharged into a creek. This portion of the lower court decision was therefore reversed.

[A prior decision in this litigation is digested at 32 ELR 20641.]