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United States v. Earth Sciences, Inc.

ELR Citation: 9 ELR 20542
Nos. Nos. 77-1302, -1303, 599 F.2d 368/13 ERC 1417/(10th Cir., 05/23/1979)

The Tenth Circuit overrules the dismissal of an enforcement suit brought against a leachate gold mining operation, holding that not all mining activities are exempt from regulation as point sources of pollution under the Federal Water Pollution Control Act (FWPCA). The district court erred in assuming that because mining activities are listed under 33 U.S.C. §1314(f) as nonpoint sources to which no regulatory program currently applies, they are categorically exempt from all point source regulation. To the extent that discharges from mining and other activities listed in §1314(f) involve point sources, they are subject to regulation under the Act. Both the language and intent of FWPCA would be contravened by exempting any identifiable point source. Defendant's contention that the discharge is not from a point source because it did not originate from a ditch, pipe, or other device intended to be used as a conduit fails since the court finds that any dischargefrom the "self-contained" leaching system is from a point source for the purposes of the FWPCA. In addition, although the stream involved in this case is not navigable in fact, the court holds it to be a "navigable water" because of its use for agricultural irrigation, the products of which are sold in interstate commerce. Congress intended to exercise its constitutional powers to the broadest extent possible, as indicated by the sweeping definition of "navigable waters," by regulating discharges into any body of water that may in any way affect interstate commerce. Finally, the court rejects, as inconsistent with the Act's strong enforcement policy, the argument that the language of the FWPCA, which authorizes the Environmental Protection Agency (EPA) to issue compliance orders "or" to commence civil actions, prohibits EPA from bringing a civil penalty action after having previously utilized administrative remedies to prevent further discharges. Legislative history supports the conclusion that Congress intended both remedies to be available despite the ambiguity inherent in the literal language of the Act.

Counsel for Plaintiff
Edmund B. Clark; James W. Moorman, Ass't Attorney General; Michael A. McCord
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2701

Counsel for Defendant
Richard Holme
Davis, Graham & Stubbs
2600 Colorado Nat'l Bldg., Denver CO 80202
(303) 892-9400

Counsel for Amici Curiae
Ronald J. Wilson
810 18th St. NW, Washington DC 20006
(202) 628-3160

J.D. McFarlane, Attorney General; Gregory J. Hobbs, Ass't Attorney General
State Services Bldg., 1525 Sherman St., Denver CO 80203
(303) 892-3611

Edward M. Weber, Ass't Attorney General
210 State Capitol, Cheyenne WY 82002
(307) 777-7841

Joined by Seth and Doyle, JJ.