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Amigos Bravos v. Molycorp, Inc.

Citation: 29 ELR 20303
No. 97-2327, 166 F.3d 1220/47 ERC 1641/(10th Cir., 11/13/1998)

The court holds that it lacks subject matter jurisdiction to review environmental groups' Federal Water Pollution Control Act (FWPCA) citizen suit against a mining company allegedly discharging pollutants from its waste rock piles into a river via groundwater seepage without a national pollutant discharge elimination system (NPDES) permit. The court first holds that the groups should have pursued their present claims during the 1993 permit renewal process. The court rejects the argument that the permitting process would not have provided the groups a proper basis for seeking judicial review of their claim that the company is violating the FWPCA. The U.S. Environmental Protection Agency's (EPA's) failure to include the waste rock pile discharges in the initial draft permit or accompanying fact sheet did not preclude the Agency from making a decision about the propriety of regulating these discharges. That the regulations provide for public comment and subsequent modification of the draft permit reflects an expectation that the initial draft permit and fact sheet may not consider everything that will ultimately be included in the final permit. If the groups are correct that the public comments raised substantial new questions that should have prompted EPA to take further action, the groups could have challenged the Agency's failure to take such action had they sought administrative and judicial review of the final permit decision. Moreover, the court's examination of the public comments and EPA's response thereto shows that the Agency considered the waste rock pile discharges. Further, because the issue of waste rock pile drainage was raised in the public comments, the groups could have challenged any failure to address this issue adequately had they sought review of the final permit decision.

In addition, the groups' argument that EPA did not take any action on the waste pile discharges because EPA neither issued, denied, nor required an NPDES permit for these discharges demonstrates that they misunderstand the procedural scheme. Once EPA took final action by issuing the NPDES permit, the decisions EPA made about the issues raised in the public comments became reviewable. Furthermore, the cases the groups cite to establish that judicial review would have been premature are inapposite because they involve no final agency action. And if the position EPA stated in response to the rock waste pile discharge comments conflicted with the position it had stated elsewhere in its responses to comments, the groups could have challenged this discrepancy through administrative and judicial review of the final permit decision. Because the groups failed to purse their present claims during the 1993 permit renewal process, the court holds that they may not now use the FWPCA's citizen suit provisions to challenge the mining company's discharge of pollutants from rock waste piles without an NPDES permit.

Counsel for Plaintiffs
Grove T. Burnett
Western Environmental Law Center
P.O. Box 1507, Taos NM 87571
(505) 751-0351

Counsel for Defendant
Amanda J. Ashford
Ashford & Thomas
500 Copper Sq. NW, Ste. 325, Albuquerque NM 87103
(505) 764-9211

Before Anderson and Tacha, JJ.