U.S. v. Homestake Min. Co.

• Decision Date: 30 March 1979
• Docket Number: No. 78-1728,78-1728
• Citation: 595 F.2d 421
• Parties: , 9 Envtl. L. Rep. 20,245 UNITED STATES of America, Appellant, v. HOMESTAKE MINING COMPANY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 421

595 F.2d 421

13 ERC 1018, 9 Envtl. L. Rep. 20,245

UNITED STATES of America, Appellant, v. HOMESTAKE MINING COMPANY, Appellee.

No. 78-1728.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 14, 1979.

Decided March 30, 1979.

Nancy B. Firestone, Atty., App. Section, Land & Natural Resources Div., Dept. of Justice, Washington, D. C. (argued), James W. Moorman, Asst. Atty. Gen., Washington, D. C., David V. Vrooman, U. S. Atty., Sioux Falls, S. D., Shelley M. Stump, Asst. U. S. Atty., Rapid City, S. D., Dirk D. Snel, Washington, D. C., on brief, for appellant.

A. P. Fuller of Amundson & Fuller, Lead, S. D., argued and on brief, for appellee.

Before GIBSON, Chief Judge, HENLEY, Circuit Judge, and HANSON, ^* Senior District Judge.

HANSON, Senior District Judge.

The United States appeals from an order of the district court granting appellee Homestake Mining Company's motion for relief from a consent decree and stipulation pursuant to Rules 60(b)(5), (6), F.R.Civ.P. The consent decree and stipulation were in settlement of an action brought by the United States to enforce the 1972 Amendments to the Federal Water Pollution Control Act (FWPCA) (now referred to as the Clean Water Act) as they pertained to Homestake's Lead, South Dakota gold mining and milling operation. The decree provided a timetable for meeting specific effluent limitations and stipulated escalating civil penalties in the event of failure to timely attain the specified limitations.

The district court found that "extraordinary circumstances and change in conditions . . . make continued enforcement inequitable" and granted relief from the consent decree. The court's enumerated conclusions and reasoning indicate that it based the ruling on its interpretation of the applicability to Homestake of Section 309(a)(5)(B) of the Clean Water Act, as amended by Section 56(c) of the Clean Water Act of 1977 (hereinafter "the 1977 Act"), 33 U.S.C.A. § 1319(a)(5)(B), ¹ and its determination that Homestake satisfied the requirements for a time extension available to certain dischargers under the 1977 Act. Because we conclude that the district court's view of the statute was erroneous and that the district court was without authority to determine whether Homestake satisfied the requirements of the extension provision, we vacate the district court's order.

I.

As noted, Homestake owns and operates a gold mine and milling operation in Lead, South Dakota. It discharges waste water containing tailings, heavy metals, and suspended solids into Gold Run Creek, a tributary of Whitewood Creek.

On September 3, 1976 the Environmental Protection Agency (EPA) issued a final National Pollutant Discharge Elimination System (NPDES) permit to Homestake which permitted it to continue discharging under specified conditions. The permit was subject to the time limitations and requirements of Section 301 of the Clean Water Act, specifically 33 U.S.C. §§ 1311(b)(1)(A) and (C). The pertinent statutory language provides:

(b) In order to carry out the objective of this chapter there shall be achieved

(1)(A) not later than July 1, 1977, effluent limitations for point sources . . . which shall require the application of the best practicable control technology currently available . . .

(C) not later than July 1, 1977, any more stringent limitation, including those necessary to meet water quality standards . . . established pursuant to any State law or regulations . . . or any other Federal law or regulation, or required to implement any applicable water quality standards . . . .

Subsection (b)(1)(A) relates to achievement of effluent limitations through the use of the best practicable control technology (BPT), while subsection (b) (1)(C) concerns, Inter alia, achievement of more stringent limitations necessary to meet state water quality standards. South Dakota has established more stringent water quality standards for Whitewood Creek, which the state has designated as a cold water marginal fishery. See 33 U.S.C. § 1370.

Homestake did not meet the July 1, 1977 deadlines. In lieu of immediately seeking civil penalties, EPA enforcement officials entered into negotiations with Homestake with a view toward establishing a timetable for compliance to be embodied in a consent decree. When finalized the decree provided that until December 4, 1977 Homestake could discharge waste water into Gold Run Creek under pre-July 1, 1977 conditions stated in the NPDES permit. Effective December 4, 1977 Homestake's waste water discharge was to contain substantially no tailings, and effective April 2, 1978 Homestake was required to meet all effluent conditions set in the permit. To meet the December deadline it was necessary for Homestake to complete a tailings pond. Homestake was required to install a final waste water treatment system in order to satisfy the April 1978 deadline. Stipulated civil penalties of up to $10,000 per day were provided in the event of noncompliance. For its part, EPA agreed not to seek statutory penalties for Homestake's violations of Section 301 for the period subsequent to July 1, 1977 until the date of entry of the decree.

The decree contemplated modification of its provisions "where circumstances, statutory or regulatory amendments, and the interest of justice so warrant." By its terms, the decree was to "terminate" on July 1, 1978.

The decree was agreed to by the parties early in October 1977 and together with the complaint was initially filed with the district court on January 17, 1978. Following mandatory publication in the Federal Register and a thirty-day public comment period, 28 C.F.R. § 50.7, the consent decree was signed by the court on March 10, 1978. One week later, March 17, 1978, Homestake filed its Rule 60(b) motion together with a motion for a stay of proceedings to enforce the consent decree under Rule 62(b), F.R.Civ.P. The district court order sustaining the Rule 60(b) motion was entered on August 3, 1978.

On December 27, 1977 the Clean Water Act of 1977 was enacted. ² The Act amended Section 309 in part by adding subsections (a)(5) and (a)(6). As codified, Section 309(a)(5)(B) provides:

(B) The Administrator may, if he determines (i) that any person who is a violator of, or any person who is otherwise not in compliance with, the time requirements under this chapter or in any (NPDES) permit issued under this chapter, has acted in good faith, and has made a commitment (in the form of contracts or other securities) of necessary resources to achieve compliance by the earliest possible date after July 1, 1977, but not later than April 1, 1979; (ii) that any extension under this provision will not result in the imposition of any additional controls on any other point or nonpoint source; (iii) that an application for a permit under section 1342 of this title was filed for such person prior to December 31, 1974; and (iv) that the facilities necessary for compliance with such requirements are under construction, grant an extension of the date referred to in section 1311(b)(1)(A) (Section 301(b) (1)(A)) of this title to a date which will achieve compliance at the earliest time possible but not later than April 1, 1979.

33 U.S.C.A. § 1319(a)(5)(B). By its terms Section 309(a)(5)(B) authorizes an extension of the July 1, 1977 deadline to April 1, 1979 for good faith dischargers under defined circumstances.

Homestake's Rule 60(b) motion was predicated on the enactment of Section 309(a)(5)(B). In an accompanying memorandum filed in the district court, Homestake argued that the 1977 Act constituted a subsequent statutory change and noted that the company had submitted a request for a Section 309(a)(5)(B) extension to the EPA by a letter dated February 7, 1978. This request was denied in a letter from the EPA's Regional Administrator at or about the same time Homestake filed its motion. In line with agency policy on the applicability of the 1977 Act, the letter stated:

(W)ith respect to Homestake's request for a 309(a)(5)(B) extension, EPA cannot grant such an extension for Homestake since that provision of the Clean Water Act is specifically applicable only to extensions for compliance with "BPT" limitations, not limitations based on water quality standards.

The letter evinces no consideration of the four qualifying criteria set forth in the statute.

The relevance of the distinction between BPT limitations and water quality standards in the context of this case merits some explanation. Homestake's NPDES permit reflects limitations mandating elimination of the direct discharge of mill tailings and waste water treatment. The permit contains both BPT-based limitations and limitations necessary to meet state water quality-based standards. As we understand the record, Homestake has in fact been utilizing a tailings pond since December 4, 1977 in compliance with the consent decree, and this is the aspect of the decree primarily governed by BPT limitations. Thus Homestake's vulnerability to sanctions under the consent decree presently extends to a failure to meet the April 2, 1978 waste water treatment requirements. For the most part these were directed at meeting the more stringent limitations necessary to attain state water quality-based standards applicable by virtue of Homestake's discharge into a tributary of Whitewood Creek. ³ Because water quality-based standards predominate in Homestake's permit, any extension available to Homestake would work an extension of the Section 301(b)(1)(C) time period for more stringent limitations based on water quality standards. ⁴

Homestake argued that EPA had erroneously interpreted Section 309(a)(5)(B) to limit the availability of an extension to BPT-based permits only. As Homestake viewed it, the statutory language was ambiguous in its reference to granting extensions "of the date referred to in section 1311(b)(1)(A)" which pertains to BPT effluent limitations. Homestake maintained that the provision was...