Sierra Club v. Abston Const. Co., Inc.

• Decision Date: 23 June 1980
• Docket Number: No. 77-2530,77-2530
• Citation: 620 F.2d 41
• Parties: , 52 A.L.R.Fed. 875, 10 Envtl. L. Rep. 20,552 SIERRA CLUB, Plaintiff-Appellant, v. ABSTON CONSTRUCTION CO., INC., et al., Defendants-Appellees, State of Alabama ex rel., Intervenor-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 41

620 F.2d 41

14 ERC 1984, 52 A.L.R.Fed. 875, 10

Envtl. L. Rep. 20,552

SIERRA CLUB, Plaintiff-Appellant, v. ABSTON CONSTRUCTION CO., INC., et al., Defendants-Appellees State of Alabama ex rel., Intervenor-Appellant.

No. 77-2530.

United States Court of Appeals Fifth Circuit.

June 23, 1980.

Edward Still, Birmingham, Ala., Ralph I. Knowles, University, Ala., John D. Hoffman, San Francisco, Cal., William J. Baxley, Atty. Gen., State of Alabama, James R. Cooper, Jr., Asst. Atty. Gen., H. H. Caddell, Asst. Atty. Gen., Montgomery, Ala., for State of Alabama.

John Philip Williams, Jacksboro, Tenn., for Save Our Cumberland Mountains, Inc.

Michael A. McCord, Atty., Sanford Sagalkin, Edmund B. Clark, Dept. of Justice, Washington, D. C., for United States.

John E. Grenier, Birmingham, Ala., for Mitchell-Neely.

Lloyd S. Guerci, Dept. of Justice, Alan W. Eckert, Deputy Assoc. Gen. Counsel, Environmental Protection Agency, Washington, D. C., for amicus curiae.

Appeal from the United States District Court for the Northern District of Alabama.

Before GODBOLD, RONEY and FRANK M. JOHNSON, Jr., Circuit Judges.

RONEY, Circuit Judge:

In this suit to enforce portions of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C.A. §§ 1251-65, 1281-93a, 1311-28, 1341-45, 1361-76, against coal strip miners, the issue is whether pollution carried in various ways into a creek from defendant coal miners' strip mines is "point source" pollution controlled by the Act.

Sediment basin overflow and the erosion of piles of discarded material resulted in rainwater carrying pollutants into a navigable body of water. Since there was no direct action of the mine operators in pumping or draining water into the waterway, the district court by summary judgment determined there was no violation of the Act because there was no "point source" of the pollution. Deciding the district court interpreted too narrowly the statutory definition of the prohibited "point source" of pollution, and that there remain genuine issues of material fact, we reverse.

Defendants Abston Construction Co., Mitchell & Neely, Inc., Kellerman Mining Co. and The Drummond Co. (hereinafter miners) operate coal mines near Daniel Creek, a tributary of the Black Warrior River, in Tuscaloosa County, Alabama. They each employ the strip mining technique, whereby rock material above the coal the overburden is removed, thereby exposing the coal that is close to the land surface. When the overburden is removed, it is pushed aside, and forms "spoil piles." During the mining operations, and thereafter if the land is not reclaimed by replacing the overburden, the spoil piles are highly erodible. Rainwater runoff or water draining from within the mined pit at times carried the material to adjacent streams, causing siltation and acid deposits. In an effort to halt runoff, the miners here occasionally constructed "sediment basins," which were designed to catch the runoff before it reached the creek. Their efforts were not always successful. Rainfall sometimes caused the basins to overflow, again depositing silt and acid materials into Daniel Creek.

Plaintiff Sierra Club brought a "citizen suit" under the Federal Water Pollution Control Act Amendments of 1972 (the Act), Claiming defendants' activities were proscribed "point sources" of pollution. 33 U.S.C.A. §§ 1362(14), 1365(a)(1)(A), (f). The State of Alabama through its attorney general was allowed to intervene with similar claims. On appeal, amicus curiae briefs have been received from the United States and Save Our Cumberland Mountains, Inc.

The parties do not dispute the ultimate fact that these pollutants appeared in the creek due to excess rainfall. Nor is there any disagreement the activities would be prohibited if the pollutants had been pumped directly into the waterways. The parties differ only on the legal responsibility of the miners for controlling the runoff and the legal effect of their efforts to control the runoff.

Plaintiff may prevail in its citizen suit only if the miners have violated some effluent limitations under the Act. 33 U.S.C.A. § 1365(a)(1)(A). Those limitations, in turn, apply only to "point sources" of pollution, as defined in the Act.

The term "point source" means 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.

33 U.S.C.A. § 1362(14). Nonpoint sources, on the other hand, are not due to be controlled. See S.Rep.No.92-414, 92d Cong., 2d Sess., reprinted in (1972) U.S.Code Cong. & Admin.News, pp. 3668, 3744.

Thus, the issue is whether defendants' activities amounted to the creation of point sources of pollution. The district court ruled they did not. On the facts before it, the district court found the pollution had not resulted "from any affirmative act of discharge by the defendants." Instead, any water and other materials that were deposited in Daniel Creek were carried by natural forces, mostly erosion caused by rainwater runoff, even though such erosion was "facilitated by the acts of defendants of creating pits and spoil banks in the course of their mining operations."

A preliminary question here is whether the Act may be applied to mining activities at all. The district court, although holding the miners here did not create point sources of pollution, conceded, correctly, we think, that "some strip mine operations may involve the discharge of pollutants in ways which would trigger application of the Act's enforcement provisions."

The 1972 legislation was designed to eliminate "discharge of pollutants into the navigable waters" of the United States by 1985. 33 U.S.C.A. § 1251(a) (1). Under this mandate the Environmental Protection Agency was directed to promulgate regulations governing point source discharges. See Natural Resources Defense Council, Inc. v. Train, 510 F.2d 692 (D.C.Cir.1975); 33 U.S.C.A. §§ 1251, 1314(b). The miners argue that Congress, in section 304(e) (2)(B) of the Act, 33 U.S.C.A. § 1314(f)(2)(B), intended that mining activities not be subject to the Act's effluent limitations, but that the Environmental Protection Agency only study and propose methods of controlling pollution resulting from mining. The Government points out, however, that an amendment, proposed in the House of Representatives to provide a regulatory program specifically covering coal miners, was withdrawn because it appeared to be duplicative. See Environmental Policy Division, Congressional Research Service, Library of Congress, Legislative History of the Water Pollution Control Act Amendments of 1972, 530-35 (Comm. Print, Senate Committee on Public Works, 93d Cong., 1st Sess. 1973). The EPA has been held to be precluded from exempting from the Act's permit requirements two other categories of pollution originally designated for further study, agricultural and silvicultural activities. Natural Resources Defense Council, Inc. v. Costle, 568 F.2d 1369, 1377 (D.C.Cir.1977).

The district court correctly concluded that mining activities, although embracing at times nonpoint sources of pollution that were intended only to be studied by the EPA, may also implicate point sources of pollution, expressly covered by the Act's effluent limitations. See generally United States v. Earth Sciences, Inc., 599 F.2d 368, 372-73 (10th Cir. 1979).

As to whether the activities here fall under the definition of point sources of pollution, three positions are asserted: plaintiff's, defendants', and a middle ground presented by the Government. We adopt the Government's approach.

Plaintiff would merely require a showing of the original sources of the pollution to find a statutory point source, regardless of how the pollutant found its way from that original source to the waterway. According to this argument, the broad drainage of rainwater carrying oily pollutants from a road paralleling a waterway, or animal pollutants from a grazing field contiguous to the waterway, would violate the Act. Whether or not the law should prohibit such pollution, this Act does not. The focus of this Act is on the "discernible, confined and discrete" conveyance of the pollutant, which would exclude natural rainfall drainage over a broad area.

Defendants, on the other hand, would exclude from the point source definition any discharge of pollutants into the waterway through ditches and gullies created by natural erosion and rainfall, even though the pollutant and the base material upon which the erosion could take place to make gullies was created by the mine operation, and even though the miners' efforts may have permitted the rainwater to flow more easily into a natural ditch leading to the waterway. This interpretation, essentially adopted by the district court, too narrowly restricts the proscription of the Act because it fails to consider fully the effect the miners' activity has on the "natural" drainage.

The United States, which participated in the case as amicus curiae, takes a middle ground: surface runoff collected or channeled by the operator constitutes a point source discharge. Simple erosion over the material surface, resulting in the discharge of water and other materials into navigable waters, does not constitute a point source discharge, absent some effort to change the surface, to direct the waterflow or otherwise impede its progress. Examples of point source pollution in the present case, according to the Government, are the collection, and subsequent percolation, of surface waters in the pits themselves. Sediment basins dug by the miners and designed to collect sediment are likewise point sources under the Government's view even though the materials were carried away from the basins by gravity flow of rainwater.

We agree with the Government's argument....