32 ELR 20641 -- Sierra Club v. El Paso Gold Mines, Inc.

Sierra Club v. El Paso Gold Mines, Inc.

No. 01-PC-2163 (198 F. Supp. 2d 1265) (UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO April 11, 2002)

ELR Digest

The court denies a gold mining company's motion to dismiss and motions for summary judgment in a Clean Water Act (CWA) citizen suit action that an environmental group brought against the company for violating CWA § 303 by discharging pollutants without a national pollutant discharge elimination system (NPDES) permit. The company argued that the group's claim should be dismissed under the primary jurisdiction doctrine or Burford abstention. The court first holds that the primary jurisdiction doctrine does not apply to this case. Although the company's application for an NPDES permit is pending before the state, the current action does not require the court to set effluent standards or write a permit for the company, which are functions within the special competency of the state. Instead, the court must determine if the company has been discharging pollutants from a point source without an NPDES permit, and it is competent to do so. Moreover, a remedial order from the court would not interfere or conflict with state or U.S. Environmental Protection Agency (EPA) orders regarding the company's discharges. Similarly, the court holds that Burford abstention is not appropriate even though a state administrative proceeding regarding the company's application for a permit is proceeding. Under Burford abstention, a federal court sitting in equity must decline to interfere with proceedings of state administrative agencies if those proceedings are timely and subject to review. Here, there is no evidence of what action, if any, the state is taking on the company's NPDES permit application. Thus, based on the record, retaining jurisdiction over the citizen suit will not interfere with the proceedings or orders of an administrative agency.

The court next holds that the group complied with the CWA's notice requirements for citizen suits. The group met the CWA's notice requirements. Neither EPA nor the state had initiated actions against the company, and the group's 60-day notice letter meets CWA requirements even though it does not identify the exact pollutants that the company is discharging. Further, notice is deemed adequate when the alleged violator takes specific remedial action in response to the notice, thereby demonstrating an understanding of the alleged violation. Here, after the company received the group's CWA citizen suit notice, it applied for a permit. Last, the court holds that genuine issues of material fact exist as to whether the company owns the mining shaft from which pollutants are being discharged. Thus, the court denies the company's motion for summary judgment.

[Counsel not available at this printing.]