Amigos Bravos v. Environmental Protection Agency

No. 99-2346 (236 F.3d 621) (10th Cir. January 3, 2001)

ELR Digest

The court reverses a district court holding that collateral estoppel barred an environmental group's citizen suit against the U.S. Environmental Protection Agency (EPA) for failure to take corrective or enforcement action regarding a recognized illegal point source. In 1995, the group alleged that a corporation's national pollutant discharge elimination system (NPDES) permit did not allow it to discharge to a river pollutants leached from waste rock piles. The court in that case lacked subject matter jurisdiction over that matter because the group attacked EPA's decision to reissue the corporation's NPDES permit, and such a claim must be filed in the court of appeals. In the present case the group claims that the recognition by EPA in a 1998 report of the corporation's waste rock piles as an illegal point source triggered an EPA duty under Clean Water Act § 309(a)(3) to take action against the corporation. The district court, however, held that their claim was barred by collateral estoppel. The court first holds that collateral estoppel does not bar the group's claim in the present case. The issue in contention in the prior action concerned the group's allegations of a point source discharge that should have been taken into consideration by EPA in the corporation's NPDES permit. Here, the issue is whether EPA has a duty to take action once it discovers an illegal point source discharge. Although factuallyrelated, these two issues are not identical. Furthermore, as a matter of timing, the group did not have a full and fair opportunity to litigate the current issue in the prior action. The EPA report was issued over two years after initiation of the earlier action.

The full text of this decision is available from ELR (8 pp., ELR Order No. L-314).

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

Counsel for Defendants
John W. Zavitz, Ass't U.S. Attorney
U.S. Attorney's Office
625 Silver Ave. SW, Ste. 400, Albuquerque NM 87102
(505) 766-3341

[31 ELR 20364]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]