Washington Wilderness Coalition v. Hecla Min. Co.

• Citation: 870 F. Supp. 983
• Decision Date: 21 October 1994
• Docket Number: No. CS-94-233-FVS.,CS-94-233-FVS.
• Court: U.S. District Court — Eastern District of Washington
• Parties: WASHINGTON WILDERNESS COALITION, a Washington Corporation, Okanogan Highlands Alliance, a Washington corporation, and Atlantic States Legal Foundation, Inc., Plaintiffs, v. HECLA MINING COMPANY, a Delaware Corporation, Defendant.

870 F. Supp. 983

WASHINGTON WILDERNESS COALITION, a Washington Corporation, Okanogan Highlands Alliance, a Washington corporation, and Atlantic States Legal Foundation, Inc., Plaintiffs, v. HECLA MINING COMPANY, a Delaware Corporation, Defendant.

No. CS-94-233-FVS.

United States District Court, E.D. Washington.

October 21, 1994.

COPYRIGHT MATERIAL OMITTED

Michael D. Axline, Deborah N. Mailander, Western Environmental Law Center, Eugene, OR, Richard A. Smith, Seattle, WA, for plaintiffs Washington Wilderness Coalition, a Washington nonprofit corp., Okanogan Highlands Alliance, a Washington nonprofit corp., Atlantic States Legal Foundation, Inc., a New York nonprofit corp.

Jerry K. Boyd, Paine Hamblen Brooke Coffin Miller, B. Mark Hausman, Paine Hamblen Coffin & Hampton, Spokane, WA, Mark Wielga, Elizabeth H. Temkin, Scott W. Hardt, Ballard Spahr Andrews & Ingersoll, Denver, CO, for defendant Hecla Min. Co., a Delaware corp.

ORDER DENYING DEFENDANT'S MOTION TO DISMISS PLAINTIFFS' CAUSE OF ACTION UNDER THE CLEAN WATER ACT

VAN SICKLE, District Judge.

BEFORE THE COURT is Defendant's motion to Dismiss Plaintiffs' First Cause of Action, which arises under Section 301 of the Clean Water Act, 33 U.S.C. § 1311 ("CWA"). (Ct.Rec. 9). Plaintiffs are represented by Michael Axline, Deborah Mailander and local counsel Richard Smith; Mark Wielga, Elizabeth Temkin and local counsel B. Mark Hausman represent Defendant. Having reviewed the record and considered the arguments of counsel, the Court enters this Order to memorialize its ruling denying defendant's motion.

Background

This case concerns Hecla Mining Company's Republic, Washington facility, which is a placer mine for gold and silver ore. In extracting gold and silver from ore, raw material is processed in a liquid solution containing cyanide and other chemical agents. This generates a significant amount of wastewater, which Hecla, pursuant to a state waste discharge permit¹, pumps from its mill into a 38 acre tailings impoundment ("Aspen Pond").

Plaintiffs' complaint alleges three sources of water pollution: (1) the Aspen Tailing Pond; (2) Tailing pond # 1; and (3) Tailing pond # 2. The Aspen Tailing Pond was allegedly constructed without an impermeable line. Plaintiffs allege that some chemicals and heavy metals bypass a water collection system installed by Hecla, and seep through the pond into waters of the United States.

Tailing ponds # 1 and # 2 are filled with dirt, and are no longer used in mining operations. Plaintiffs allege that inactive tailings in the ponds "seep and leach" contaminated waste water, some of which is intercepted and pumped into the Aspen pond, but some of which escapes and enters the waters of the United States.

In their first cause of action, Plaintiffs claim that Hecla is violating Section 301 of the CWA, by discharging pollutants into navigable waters without a National Pollutant Discharge Elimination System ("NPDES") permit. Plaintiffs' second cause of action, not the subject of the instant motion, is for CERCLA violations.

Standards

Hecla moves to dismiss the CWA claim on two grounds: (1) lack of subject matter jurisdiction, and (2) failure to state a claim. Fed. R.Civ.P. 12(b)(1) & (6). In challenging subject matter jurisdiction, Hecla suggests that a citizens suit is not authorized under the CWA to enforce state water quality standards, which operate in lieu of federal standards in Washington. Hecla further questions the sufficiency of Plaintiffs' allegations of pollution from a "point source" into "navigable waters" of the United States.

When ruling on a motion to dismiss, whether for lack of subject matter jurisdiction or for failure to state a claim, the court accepts all factual allegations as true and draws all reasonable inferences in favor of Plaintiffs. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). The complaint will not be dismissed unless it appears to a certainty that Plaintiffs can prove no set of facts which would entitle them to relief. Elias v. Connett, 908 F.2d 521 (9th Cir.1990).

Discussion

1. Subject Matter Jurisdiction.

Federal jurisdiction over citizens suits to enforce the CWA is grounded in Section 505, which authorizes private litigation "(1) against any person ... who is alleged to be in violation of (A) an effluent standard or limitation under this chapter." 33 U.S.C. § 1365(a)(1). Hecla argues that Plaintiffs have not shown violation of an "effluent limitation", since they challenge Hecla's failure to obtain a limitation-setting permit in the first place. Hecla further asserts that citizens suits under the CWA are not authorized when a state NPDES permit process operates in lieu of the EPA-administered process.

Hecla's first argument has no support in the language of the CWA. Section 1365(f) defines "effluent limitation" to include "an unlawful act under subsection (a) of section 1311." Section 1311(a), in turn, makes it unlawful to discharge any pollutant except in compliance with the NPDES permit required in Section 1342. Thus, a citizens suit to enforce an "effluent limitation" can be based on allegations that the defendant is discharging without an NPDES permit. Plaintiffs cite several cases in which citizens have brought suit to require the issuance of a permit. E.g. Sierra Club v. Abston Constr. Co., Inc., 620 F.2d 41 (5th Cir.1980); United States v. Earth Sciences, Inc., 599 F.2d 368, 370 (10th Cir.1979); Hawaii's Thousand Friends v. Honolulu, 806 F.Supp. 225, 229 (D.Hawaii 1992). The only court to address the question directly concluded: "obtaining a permit is itself an important effluent limitation, and private attorneys general may enforce that limitation via citizens suits." Hudson River Fishermen's Ass'n v. Westchester Cty., 686 F.Supp. 1044, 1050 (S.D.N.Y.1988).

Hecla suggests that the Ninth Circuit would limit the scope of citizens suits to enforcement of permit limitations. Citing Northwest Environmental Advocates (NWEA) v. Portland, 11 F.3d 900 (9th Cir. 1993). In NWEA, the court noted that "effluent limitations" are "end-of-pipe limitations and permit violations", and that citizens suits are not authorized to establish general water quality standards. Id. at 908. The court did not suggest that a permit must be in place before a citizens suit may be brought; rather, it distinguished between suits to enforce discharge limitations that would be the subject of a permit and those to enforce general water quality standards. There is no question in this case that Plaintiffs' challenge is to discharge limitations subject to NPDES permit. This clearly falls within the jurisdictional sweep of the CWA.

Hecla's second argument is that the CWA does not provide jurisdiction for citizens suits when a state NPDES permit program operates in lieu of the federal program. This argument is based on 33 U.S.C. § 1342(c), which suspends the issuance of federal NPDES permits once a state permit program acceptable to EPA is in place. Washington has had an EPA-approved permit program since 1973. See 39 Fed.Reg. 26,061 (July 16, 1974).

The courts addressing whether citizens suits are available in a state with its own permit process are divided on the issue. Some hold that private suits are not authorized, on the theory that federal enforcement is suspended entirely by a state permit program. E.g. City of Heath, Ohio v. Ashland Oil, Inc., 834 F.Supp. 971 (D.Ohio 1993) (no citizen suit under similar RCRA state permit program) (citing Dague v. City of Burlington, 935 F.2d 1343, 1353 (2d Cir.1991)); Thompson v. Thomas, 680 F.Supp. 1 (D.D.C. 1987). These cases treat federal and state programs as separate universes, and conclude that citizens suits are authorized only under a state provision.

Other courts emphasize the unity of purpose behind state and federal CWA programs, and hold that citizens may enforce effluent limitations regardless of whether the EPA or a state agency issues the NPDES permits. E.g. Lutz v. Chromatex, Inc., 725 F.Supp. 258, 261 (M.D.Pa.1989); United States v. Hooker Chem. & Plastics, 749 F.2d 968 (2d Cir.1984); McClellan Ecological Seepage Situation ("MESS") v. Weinberger, 707 F.Supp. 1182, 1190-91 (E.D.Cal.1988). This conclusion is suggested by the definition of "effluent limitation" in section 1362(11), which includes "any restriction established by a state or the EPA Administrator."

With respect to identical state enforcement provisions of the Resource Conservation and Recovery Act ("RCRA"), the EPA itself has taken the position that citizen's suits may be brought in states that have received authority to operate permit programs in lieu of the federal program. Lutz v. Chromatex, Inc., 725 F.Supp. 258, 261 (M.D.Pa.1989) (citing EPA statement in 45 Fed.Reg. 85016 (Dec. 24, 1980)). MESS points out that state permit programs are essentially part of federal law, since they must be approved by the EPA, and must comport with stringent federal requirements. 707 F.Supp. at 1190-91; see also, 40 C.F.R. § 122.1 et seq. (setting forth program criteria for NPDES permits, applicable to both EPA and state administered programs). Several mandatory federal standards are expressly recognized as "effluent limitations" in the citizens suit provision of the CWA. 33 U.S.C. § 1365(f) (referencing standards in 33 U.S.C. §§ 1311, 1312, 1316, 1317, 1343; 33 U.S.C. § 1342(b)(1)(A)).

Hecla asserts that the state program for issuance of NPDES permits is intended to supplant all other methods of CWA enforcement. The court is not persuaded. Section 1342(c), which suspends the federal permit program upon approval of a state program, simply guarantees that the state will be the sole entity issuing NPDES permits. The EPA retains full authority to carry out its other duties under the CWA, and to supervise state programs to ensure compliance with federal guidelines. As to private action, the CWA generally authorizes citizens suits unless the responsible government agency...