U.S. v. Earth Sciences, Inc.

• Decision Date: 23 May 1979
• Docket Number: 77-1303,Nos. 77-1302,s. 77-1302
• Citation: 599 F.2d 368
• Parties: , 9 Envtl. L. Rep. 20,542 UNITED STATES of America, Plaintiff-Appellant and Cross Appellee, v. EARTH SCIENCES, INC., Defendant-Appellee and Cross Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 368

599 F.2d 368

13 ERC 1417, 9 Envtl. L. Rep. 20,542

UNITED STATES of America, Plaintiff-Appellant and Cross Appellee, v. EARTH SCIENCES, INC., Defendant-Appellee and Cross Appellant.

Nos. 77-1302, 77-1303.

United States Court of Appeals Tenth Circuit.

Argued Aug. 11, 1978.

Decided May 23, 1979.

Michael A. McCord, Atty., Dept. of Justice, Washington, D. C. (James W. Moorman, Asst. Atty. Gen., Washington, D. C., Joseph F. Dolan, U. S. Atty., Lena A. Wilson, Asst. U. S. Atty., Denver, Colo., and Raymond N. Zagone, Atty., Dept. of Justice, Alan W. Eckert, Deputy Associate Gen. Counsel, Environmental Protection Agency, Washington, D. C., with him, on brief), for the United States.

Richard P. Holme of Davis, Graham & Stubbs, Denver, Colo., for Earth Sciences, Inc.

Sharon S. Metcalf, Asst. Atty. Gen., Denver, Colo., for the State of Colorado, amicus curiae.

J. D. MacFarlane, Atty. Gen., Gregory J. Hobbs, Jr., First Asst. Atty. Gen., Sue Ellen Harrison, Asst. Atty. Gen., Denver, Colo., V. Frank Mendicino, Atty. Gen., Cheyenne, Wyo., and K. W. James Rochow, Asst. Atty. Gen., Harrisburg, Pa., filed an amicus curiae memorandum in support of the United States.

Edward L. Strohbehn, Jr., Natural Resources Defense Council, Washington, D. C., filed an amicus curiae brief in support of the United States.

Before SETH, Chief Judge, and DOYLE and LOGAN, Circuit Judges.

LOGAN, Circuit Judge.

This is an appeal from a district court order dismissing a suit brought by the United States against Earth Sciences, Inc., (Earth Sciences) under the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. § 1251 Et seq., specifically § 1311.

The government appeals the district court's conclusion that the FWPCA exempts all mining activities from point sources regulation. Earth Sciences cross-appeals, and defends the trial court's decision on the alternative grounds that Earth Sciences' overflows were not from a "point source," the stream involved in this case was not a "navigable water" under the Act, no person made a "discharge" of the pollutant at issue here, and the government suit was precluded by a prior choice to pursue administrative remedies.

The events which gave rise to this action occurred at Earth Sciences' gold leaching operation on the Rito Seco Creek in Costilla County, Colorado, and were stipulated by the parties. Gold leaching is a process whereby a toxic substance, here a sodium cyanide-sodium hydroxide water solution, is sprayed over a "heap" of gold ore, separating the gold from the ore. The leachate solution is then collected and the gold extracted for commercial sale. The center of Earth Sciences' operation is a 3 1/2- to 4-acre pile of gold ore on top of an impermeable plastic membrane and 12 inches of sand constructed with a gradual slope, causing the leachate solution to funnel to one end into a small fiberglass-lined pool, called the primary sump. The solution is pumped from the primary sump into a processing trailer where the gold is removed, and then back onto the heap or into the primary sump. A 168,000-gallon reserve sump is available to catch excess leachate or runoff in emergency situations. The entire operation consists of several open excavations lined with plastic membrane, the processing trailer and pumps, all designed to be a closed system without any pollutant discharge.

Warm April temperatures caused faster melting than expected of a blanket of snow covering the heap, filling the primary and reserve sumps to capacity. This caused a one- to five-gallon-per-minute discharge of the sodium cyanide-sodium hydroxide leachate solution into the Rito Seco Creek for about a six-hour period. The solution is stipulated to be a pollutant under the FWPCA. Earth Sciences did not report the discharge to either state or federal environmental authorities.

A few days later the Colorado Division of Wildlife received a report of dead fish on the Rito Seco, causing a state inspector and two other wildlife employees to visit the Earth Sciences site. The inspector interviewed Earth Sciences employees and verified that a discharge had occurred. While the state employees were photographing and taking water samples of the operation, the reserve sump overflowed a second time, discharging approximately ten gallons per minute into the Rito Seco for two hours, until a bulldozer was used to construct a dirt berm around the edge of the reserve sump to stop the flow. Within a week Earth Sciences constructed another reserve sump with an additional capacity of 398,000 gallons.

Because the FWPCA encourages use of approved state enforcement procedures, 33 U.S.C. §§ 1316(c) and 1319(a)(1), the Environmental Protection Agency (EPA) requested the Colorado Department of Health to act to prevent further discharges. The state notified Earth Sciences it had violated Colo.Rev.Stat. § 25-8-501 (1973), which requires a permit to discharge pollutants, and Colo.Rev.Stat. § 25-8-601(2) (1973), allowing for criminal penalties if a discharge is not reported. Colorado ordered Earth Sciences to cease and desist from further illegal discharges and to "perform any work necessary to prevent future unauthorized discharges" or stop its operation. Earth Sciences notified the Department of Health the newly-constructed reserve sump in combination with existing facilities would "accommodate 1.6 times as much water" as would fall on the heap in any 24-hour period, based on maximum rainfall statistics in the area since 1951. The state did not initiate any criminal prosecution.

Apparently the EPA decided the Colorado enforcement was insufficient and issued its own notice of violation and cease and desist order under 33 U.S.C. § 1319(a)(3), which reads as follows:

Whenever on the basis of any information available to him the Administrator finds that any person is in violation of section 1311, . . . he shall issue an order requiring such person to comply with such section or requirement, or he shall bring a civil action in accordance with subsection (b) of this section.

The EPA notice informed Earth Sciences the cyanide solution discharges violated 33 U.S.C. § 1311(a), because Earth Sciences had not applied for and been granted a permit to discharge pollutants under 33 U.S.C. § 1342. The notice identified an open ditch between the reserve sump and the Rito Seco Creek as a point source, defined in 33 U.S.C. § 1362(14) as

any discernible, confined and discrete conveyance, 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 discharged. This term does not include return flows from irrigated agriculture.

Contrasted with the state order, the EPA order was substantially more detailed and required Earth Sciences submit a plan to assure future discharges would not occur.

Five days after the EPA order was issued a sampling team of two EPA employees visited the Earth Sciences site. Groundwater seeps of approximately one gallon per minute were observed below the sumps running toward the Rito Seco and partially gathering into pools near the creek. Samples taken from two of these pools were found to contain cyanide.

Earth Sciences' compliance with the EPA order reaffirmed the capacity of the reserve sump system against maximum recorded precipitation, and identified several steps Earth Sciences would take to divert the natural runoff away from the leaching facilities. Earth Sciences also assured the EPA it would monitor groundwater seeps around the sumps and the quality and quantity of the runoff.

Soon thereafter the United States filed suit, alleging Earth Sciences committed three separate violations of FWPCA, one each time the reserve sump overflowed and one as a result of the tests on the water collected from the groundwater seeps. All three violations were asserted under 33 U.S.C. § 1311(a).

The matter came before the district court on opposing motions for summary judgment. The hearing was brief, focusing primarily on the court's concern that Earth Sciences' discharges were not conveyed to the Rito Seco by means of a point source, as that term is defined in the Act, section 1362(14) quoted above. Whether a discharge is made through a point source is crucial for application of enforcement provisions of FWPCA because pollutants discharged through point sources are regulated by effluent limitations and require a permit. Because nonpoint sources of pollution, such as oil and gas runoffs caused by rainfall on the highways, are virtually impossible to isolate to one polluter, no permit or regulatory system was established as to them. Rather, the EPA is instructed under 33 U.S.C. § 1314(f) to develop

(1) guidelines for identifying and evaluating the nature and extent of nonpoint sources of pollutants, and (2) processes, procedures, and methods to control pollution resulting from

(A) agricultural and silvicultural activities, including runoff from fields and crops and forest lands;

(B) mining activities, including runoff and siltation from new, currently operating, and abandoned surface and underground mines;

(C) all construction activity, including runoff from the facilities resulting from such construction; . . .

Based on its reading of the legislative history, the district court interpreted § 1314(f) as exempting those activities listed in (2) from the FWPCA enforcement provisions, due to their character as nonpoint source polluters. After the court decided Earth Sciences' gold leaching facility was a mining activity, dismissal of the government's suit followed because the government no longer had any enforcement power under § 1311(a) to bring a civil action. Appellant United States contends the district court's conclusion is an incorrect interpretation of the law.

I

The United States argues discharges from mining activities often may be from nonpoint sources, but it is...