Sierra Club v. Lujan

No. 89-B-76 (D. Colo. May 24, 1990)

The court holds that the Department of the Interior and the Bureau of Land Reclamation are liable for 6,333 violations of the Federal Water Pollution Control Act (FWPCA) at the Leadville Drainage Tunnel in Lake County, Colorado. The tunnel drains a number of inactive mines and discharges into the East Fork of the Arkansas River. The court holds that it has jurisdiction and that plaintiffs have standing. The court also holds that defendants have violated FWPCA § 301(a) consistently since 1975 by discharging pollutants from the tunnel in violation of the effluent limitations in its national pollutant discharge elimination system permit and by violating the permit's monitoring and reporting requirements.

[On the same day, the court approved a consent decree between the environmental groups and the Department of the Interior. The decree requires defendants to build a water treatment plant and to meet acid mine drainage limits. A previous decision in this litigation is published at 20 ELR 20650.]

Counsel for Plaintiffs
Adam Babich
Cornwell & Blakey
1225 17th St., Ste. 2650, Denver CO 80202
(303) 295-2500

Counsel for Defendants
Richard B. Stewart, Ass't Attorney General
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

William Pharo, Ass't U.S. Attorney
1961 Stout St., Denver CO 80294
(303) 844-2081

J. Steven Rogers, Margaret Kane Harrington
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2741

[21 ELR 20121]

Order Regarding Plaintiffs' Second Motion for Partial Summary Judgment

In this citizen enforcement action under the Clean Water Act, plaintiffs allege that defendants' discharges from the Leadville Drainage Tunnel (the tunnel), in Lake County, Colorado, have violated and continue to violate effluent limitations set by National Pollutant Discharge Elimination System (NPDES) Permit Number CO-0021717 (the permit). Additionally, plaintiffs allege that defendants have violated and continue to violate the permit by failing to take "composite samples" when monitoring discharges from the tunnel and by failing intermittently to submit timely discharge monitoring reports.¹ Plaintiffs, in their Second Motion for Partial Summary Judgment, request judgment and a declaration that defendants are liable for violations of the Clean Water Act, that defendants' violations are continuing, that plaintiffs have standing to prosecute this action and that this Court has jurisdiction. Defendants, despite the denials in their Answer, now admit to the continuing Clean Water Act violations that are the subject of this Order, admit that plaintiffs have standing and admit that this Court has jurisdiction over the action. Federal Defendants' Memorandum in Opposition to Plaintiffs [Second] Motion for Partial Summary Judgment at 2-3.

Upon consideration of materials submitted by the parties and the applicable law, this Court has determined that there are no genuine issues of fact material to plaintiffs' Motion and that plaintiffs are entitled to judgment on the issues of liability, standing and jurisdiction as a matter of law. Accordingly, the Court hereby finds, concludes, orders and declares the following pursuant to the Clean Water Act, 33 U.S.C. §§ 1251-1387, and the Declaratory Judgment Act, 28 U.S.C. § 2201(a):

1. This Court has jurisdiction over the parties and the subject matter of this action.

2. Plaintiffs have standing to prosecute this action.

3. Defendants United States Department of the Interior (DOI) and United States Bureau of Reclamation (BOR) have violated the Clean Water Act § 301(a), 33 U.S.C. § 1311(a), consistently since 1975 by discharging pollutants from the tunnel in violation of effluent limitations set by the permit and failing to comply with the permit's monitoring and reporting requirements. Defendants Manuel Lujan, Secretary of the Interior, and D. Dale Duvall, Commissioner of Reclamation, have been in violation of the Act since they assumed their respective positions as officers of the United States whose official duties include causing their agencies to comply with the Clean Water Act. 33 U.S.C. § 1323(a).

4. Defendants DOI and BOR are liable for at least six thousand, three hundred and thirty-three (6333) violations of the Clean Water Act between January 13, 1984² and May 12, 1989, including:

* One thousand, nine hundred and forty-six (1946) days of continuous violation of the permits' effluent limitations for iron, zinc and cadmium (a total of five thousand, eight hundred and thirty-eight (5838) violations);

* Twenty-three (23) violations of the permit's effluent limitation for copper; eleven (11) violations of the permit's limitation for silver;

* Four hundred and forty-eight (448) violations (over sixty-four (64) months) of the permits' requirement that the tunnel's discharge be monitored monthly for each of seven (7) parameters by taking composite samples; and

* Thirteen (13) violations of the permit's requirement that discharge monitoring reports be postmarked by the 28th day of the month following each reporting period.

5. All the violations referred to in paragraphs 3 and 4 are continuing and all defendants shall be liable for future violations as they occur.

6. Plaintiffs' Second Motion for Summary Judgment, as modified by plaintiffs' Reply Memorandum (filed June 22, 1989), is GRANTED.

1. Plaintiffs also have alleged that defendants have violated and continue to violate an administrative order issued by the United States Environmental Protection Agency (EPA) pursuant to the Clean Water Act. Because defendants have admitted the validity of plaintiffs' other allegations of Clean Water Act violations, plaintiffs have withdrawn their allegations with respect to violations of the EPA Order as cumulative.

2. Plaintiffs' Second Amended Complaint requests injunctive relief to address continuing violations and civil penalties for violations since January 13, 1984.