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Friends of Santa Fe County v. Lac Minerals, Inc.

ELR Citation: 26 ELR 20135
Nos. No. 94-0569 JB/LH/DJS, 892 F. Supp. 1333/(D.N.M., 07/12/1995)

The court holds that the current owners and operators of a gold mine may be held liable under the Federal Water Pollution Control Act (FWPCA) for acid mine drainage allegedly emanating from an overburden pile defendants placed in an arroyo, but they may not be held liable under the Resource Conservation and Recovery Act (RCRA). The court first dismisses all claims against a former owner and operator of the mine, and grants plaintiffs leave to amend their complaint if they discover evidence demonstrating that the company retains any present ownership interest in the mine. The court holds that the overburden pile from the mine is solid waste from the extraction of gold under 40 C.F.R. §261.4(b)(7). Because it is not hazardous waste, it is not subject to RCRA §§3004 or 3005. Overburden is exactly the type of high-volume, low-hazard waste that the U.S. Environmental Protection Agency (EPA) deemed eligible for exemption from hazardous waste status under §261.4(b)(7). Whether the acid mine drainage is the product of the extraction of ore or the removal of overburden is immaterial. Moreover, nothing in the legislative history or regulatory record suggests that overburden must be physically returned to the mine site to retain this exemption.

Next, the court holds that plaintiffs failed to show that defendants' original deposit of overburden in the arroyo constituted the discharge of fill material subject to FWPCA §404's permitting requirement. Defendants offered affidavits of mining supervisors and other employees to testify that defendants deposited the overburden in the arroyo for purposes of disposal, and not to replace the area with dry land or to change the bottom elevation. The affidavit from plaintiffs' counsel requesting more time to depose defendants is not sufficient to prevent summary judgment in defendants' behalf. The court then holds that plaintiffs' motion to strike the affirmative defenses of laches, estoppel, and statute of limitations presents disputed issues of substantive law that are best resolved in a concrete factual setting. The court holds that FWPCA §309(g)(6)(A)(ii) does not bar plaintiffs' citizen suit due to a state environmental agency's oversight activities, which include the imposition of remedial and monitoring obligations in a discharge plan, because the agency is not seeking penalties from defendants. Section 309(g)(6)(A)(ii)'s preclusive effect applies only when EPA, the U.S. Army Corps of Engineers, or a state is in the process of collecting or has already collected administrative penalties. The court abstains from entertaining plaintiffs' imminent and substantial endangerment claim under RCRA by authority of Burford v. Sun Oil Co., 319 U.S. 315 (1943), because this claim is little more than an indirect collateral attack on the state agency's discharge plan for the mine. In the alternative, the court notes that primary jurisdiction abstention would also be appropriate. Should the court entertain this claim, the court would have to assess whether the acid mine drainage poses an imminent and substantial endangerment to human health or the environment—an inquiry that can only be described as second-guessing the state agency—and fashion an appropriate remediation plan, which would constitute a serious drain of judicial resources and would largely duplicate the state agency's efforts. The court notes that its earlier holding that FWPCA §404 does not apply to defendants' disposal of overburden obviates the need to determine whether the applicable five-year statute of limitations bars the §404 claim. The court next holds that to the extent the affidavit of one of defendants' experts conflicts with earlier statements or reports regarding the presence of a hydrologic connection between the bedrock groundwater in the vicinity of the overburden pile and the surface water in the arroyo, any contradiction affects the opinion's weight, and not its admissibility.

Turning to plaintiffs' FWPCA claims, the court holds that plaintiffs have failed to demonstrate that defendants were continuing to discharge pollutants at the time plaintiffs filed their complaint. Migration of residual contamination resulting from previous releases is not an ongoing discharge within the meaning of the FWPCA. The court dismisses plaintiffs claims for alleged unpermitted discharges of acid mine drainage from the overburden pile, from the remediation and collection system, and from various seeps and springs at the mine site to the extent that plaintiffs rely on the deposition of the overburden pile as a factual predicate. The court rejects defendants assertion that the portion of the arroyo covered and diverted by the overburden pile is no longer a regulated water of the United States. Moreover, the fact that the arroyo is dry most of the year does not preclude its characterization as a regulated water, as long as water flows on some occasions. The court denies summary judgment on this issue to plaintiffs, however, because they failed to provide evidence to suggest that water originating in the arroyo near the overburden has, at least at some time in the past, eventually made its way to the Rio Grande and is likely to do so again. The court also denies summary judgment to plaintiffs on whether there is a hydrological connection between the groundwater and the surface waters, because the evidence leads to a different conclusion. The court then holds that seepages are not point-source carriers of pollutants, but are similar to stormwater, and therefore are not subject to the Act's permitting requirements. The court summarizes its rulings on the FWPCA §402 claim by holding that acid mine drainage constitutes a pollutant, that the overburden pile and the remediation system are point sources, and that defendants did not possess a discharge permit.

Counsel for Plaintiffs
Douglas W. Wolf
New Mexico Environmental Law Center
103 Cienega St., Santa Fe NM 87501
(505) 989-9022

Counsel for Defendants
Sarah M. Singleton
Montgomery & Andrews
325 Paseo De Peralta, P.O. Box 2307, Santa Fe NM 87504
(505) 982-3873