F I L E D
United States Court of Appeals
Tenth Circuit
October 21, 2005
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT Clerk of Court
SIERRA CLUB and MINERAL
POLICY CENTER,
No. 03-1105
Plaintiffs-Appellees,
v. (D. of Colo.)
EL PASO GOLD MINES, INC., (D.C. No. 01-PC-2163 (OES))
Defendant-Appellant.
MOUNTAIN STATES LEGAL
FOUNDATION,
Amicus Curiae for
Defendant-Appellant.
ORDER
Before MURPHY , McKAY , and TYMKOVICH , Circuit Judges.
Appellees’ petition for panel rehearing filed in this appeal is granted for the
sole and limited purpose of correcting the dates when water samples were taken
from the Roosevelt Tunnel portal. The relevant sentence (page 36) will now read:
Even the Plaintiffs’ strongest evidence—that water samples at the shaft
and the tunnel portal (samples taken by Cripple Creek & Victor Mining
Co.) both contain zinc and manganese—is less than convincing given
the uncertainties by which the data were collected.
The relevant footnote (footnote 8, page 36) will now read:
See supra note 2. The record contains only two water samples taken at
the El Paso shaft. Although zinc and manganese were detected, no
samples link water from the El Paso shaft to water at the Roosevelt
Tunnel portal.
In all other respects the petition for rehearing is denied.
The court now reissues a corrected version of the opinion, a copy of which is
attached to this order.
Entered for the Court
/s/ Douglas E. Cressler
Clerk of the Court
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F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
August 24, 2005
UNITED STATES COURT OF APPEALS PATRICK FISHER
Clerk of Court
TENTH CIRCUIT
SIERRA CLUB and MINERAL
POLICY CENTER,
Plaintiffs-Appellees,
v. No. 03-1105
EL PASO GOLD MINES, INC.,
Defendant-Appellant.
MOUNTAIN STATES LEGAL
FOUNDATION,
Amicus Curiae for
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 01-PC-2163 (OES))
Stephen D. Harris (with Connie H. King and James L. Merrill with him on the briefs)
Merrill, Anderson, King & Harris, LLC, Colorado Springs, Colorado for Defendant-
Appellant El Paso Gold Mines, Inc.
John M. Barth, Hygiene, Colorado (with Paul Zogg, Law Office of Paul Zogg,
Boulder, Colorado, and Roger Flynn and Jeff Parsons, Western Mining Action
Project, Boulder, Colorado, with him on the brief) for Plaintiffs-Appellees Sierra
Club and Mineral Policy Center.
Steven J. Lechner and William Perry Pendley, Mountain States Legal Foundation,
Lakewood, Colorado, on brief for Defendant-Appellant El Paso Gold Mines, Inc.
Before MURPHY , McKAY , and TYMKOVICH , Circuit Judges.
TYMKOVICH , Circuit Judge.
The Clean Water Act (“CWA” or “Act”) prohibits the discharge of
any pollutant from a point source unless authorized by a permit issued under the
National Pollutant Discharge Elimination System (“NPDES”). 33 U.S.C. §§ 1311(a),
1342. Under the Act, a “discharge of a pollutant” is defined as “any addition of any
pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12). The
Act also confers jurisdiction on the federal courts to hear citizen suits brought
against any person “alleged to be in violation of” the Act. 33 U.S.C. § 1365(a).
The Sierra Club and the Mineral Policy Center (“Plaintiffs”) filed a citizen suit
in federal district court against a land owner, El Paso Gold Mines, Inc., whose
abandoned mine shaft is allegedly discharging pollutants into Cripple Creek, a
navigable water under the Act. A magistrate judge, hearing the case by consent,
granted the Plaintiffs’ motion for summary judgment, and this appeal followed.
On appeal we must decide three questions regarding the application of the
CWA to the facts of this case: First, whether the alleged conduct in this case
amounts to a “wholly past violation,” Gwaltney of Smithfield, Ltd. v. Chesapeake Bay
Foundation, Inc., 484 U.S. 49, 64 (1987), thus stripping the district court of subject
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matter jurisdiction under § 1365(a); second, whether Congress intended to require
owners of inactive mines such as El Paso to obtain discharge permits under §§
1311(a) and 1342; and third, whether the Plaintiffs have met their burden of showing
that pollutants actually were discharged into Cripple Creek.
We agree with the magistrate judge on the first two issues, but hold that
genuine issues of material fact exist, and, therefore, summary judgment was
improperly granted. Accordingly, we reverse and remand the case for further
proceedings.
I. BACKGROUND
A. Relevant Facts
El Paso owns approximately 100 acres of land west of Colorado Springs,
between the towns of Cripple Creek and Victor, in Teller County, Colorado.
Founded in 1968, El Paso has never conducted any mining operations on its
property, although it may in the future. Located on this property is an inactive
gold mine, the El Paso mine, as well as a partially collapsed mine shaft known as
the El Paso shaft. The El Paso shaft is a vertical shaft—formerly an elevator
shaft used by miners to access various levels of the El Paso mine—that connects
the mine to the Roosevelt Tunnel. The Roosevelt Tunnel is a mine drainage
tunnel, six miles in length, that was constructed around 1910 to drain groundwater
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from the mines in the Cripple Creek Mining District. The Roosevelt Tunnel
underlies and connects to numerous properties, including El Paso’s.
Snow melt and groundwater make their way to the Roosevelt Tunnel
through a series of drainage tunnels and underground shafts, including the El Paso
mine shaft. Water also apparently enters and exits the tunnel through cracks and
fractures in the rock along the tunnel’s six-mile length. The tunnel ends at the
Roosevelt Tunnel portal, and here the tunnel discharges water into Cripple Creek,
which eventually empties into the Arkansas River. The El Paso shaft connects to
the Roosevelt Tunnel approximately two and half miles from the tunnel portal.
B. Proceedings in the District Court
In November 2001, the Sierra Club and the Mineral Policy Center filed a
citizen suit against El Paso in federal district court under the Clean Water Act,
codified at 33 U.S.C. § 1251 et seq. According to the Plaintiffs, El Paso violated
Section 402 of the Act, 33 U.S.C. § 1342, by discharging pollutants (namely, zinc
and manganese) from a point source into Cripple Creek without a valid permit. 1
1
In November 2000, the Plaintiffs filed a separate CWA citizen suit against
several active mining companies. See Sierra Club, et al v. Cripple Creek &
Victor Gold Mining, Co., Civ. No. 00-MK-2325 (OES) (D. Colo. Nov. 28, 2000).
In that case, the Plaintiffs allege the mining companies are liable for violations of
the CWA due to discharges occurring at the Roosevelt Tunnel and the Carlton
Tunnel (another mine drainage tunnel located in the Cripple Creek mining
district).
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The district court referred the case to a magistrate judge under 28 U.S.C. § 636(c).
In September 2002, following discovery, the parties filed cross-motions for
summary judgment pursuant to Federal Rule of Civil Procedure 56(c). El Paso
argued, first, that the court lacked subject matter jurisdiction over this citizen suit
because the Plaintiffs had failed to allege an ongoing violation of the Act.
Because it had never engaged in active mining, El Paso argued that it was not
“alleged to be in violation of” the Act, a required prerequisite for a citizen suit
under Section 505(a)(1), 33 U.S.C. § 1365(a)(1). The magistrate judge disagreed,
however, holding instead that this was not a case of “wholly past violations,”
Gwaltney, 484 U.S. at 64, but rather “the continuing migration of pollutants into
navigable water was occurring because of a past discharge from a point source.”
Sierra Club, et al v. El Paso Gold Mines, Inc., Civ. No. 01-PC-2163 (OES), slip
op. at 13 (D. Colo. Nov. 15, 2002) (“Order”). In addition, the magistrate judge
noted that “there is no evidence that El Paso’s intermittent or sporadic violations
of the CWA are not likely to recur.” Id. at 14. Thus, the magistrate judge held
that the court had subject matter jurisdiction under Section 505(a)(1)
notwithstanding the fact that El Paso had not contributed to the alleged pollution
through any of its own mining.
El Paso argued next that purely passive land owners cannot be liable for
discharges under Section 301(a), 33 U.S.C. § 1311(a), and therefore they were not
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required to obtain a discharge permit pursuant to Section 402, 33 U.S.C. § 1342.
This argument was based on the definition of “discharge,” which is “any addition
of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12)
(emphasis added). Because the word “addition” implies affirmative conduct by
the land owner, El Paso argued it could not, as a matter of law, be liable under the
Act. The magistrate judge again disagreed, favoring instead the Plaintiffs’
interpretation of the statutory language. According to the magistrate judge, “[t]he
key to liability under the CWA is the ownership or operation of a point source
which ‘adds’ pollutants to navigable waters,” and liability therefore attaches “not
on the activity which results in the point source discharge, but rather on the point
source discharge itself.” Order at 23–24.
Finally, El Paso argued the Plaintiffs had failed to put forth any evidence
establishing a hydrological connection between the El Paso shaft and the
Roosevelt Tunnel portal nearly two and half miles away. It was undisputed that
water samples taken at the shaft and the portal both contained zinc and
manganese. 2 But according to El Paso, there was no evidence linking the water
2
Water samples taken from the El Paso shaft in October 1994 show 4.1
milligrams of zinc per liter (mg/l). Samples taken from the El Paso shaft in
November 2000 show manganese of 27.9 mg/l . Samples collected at the
Roosevelt Tunnel portal between November 1995 and October 2000 show varying
amounts of zinc (between .05 and 3.46 mg/l) and manganese (between .0049 and
39.9 mg/l). This sampling data was collected by Cripple Creek & Victor Gold
(continued...)
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from the shaft to water discharged at the portal, and therefore the Plaintiffs had
failed to prove El Paso added pollutants to navigable waters. 3 In reviewing this
claim, the magistrate judge considered the expert testimonies proffered by the
parties. Although the experts disagreed in many respects, the magistrate judge
found the experts agreed that “some of the water flowing into the Tunnel from the
El Paso shaft reaches the Tunnel portal intermittently and flows into Cripple
Creek.” Id. at 29. Thus, the magistrate judge held that the Plaintiffs had
established the necessary hydrological link.
Having rejected each of El Paso’s arguments, the magistrate judge granted
summary judgment for the Plaintiffs. In a subsequent order, the magistrate judge
ordered El Paso to pay $94,900 in civil penalties, as well as attorneys’ fees and
costs. The magistrate judge also ordered El Paso to apply for an NPDES permit.
C. Parallel State Administrative Proceedings
Concurrent with the federal proceedings described above, the Colorado
Water Quality Control Division (“CWQCD”) was pursuing an administrative
action against El Paso based on the same facts giving rise to the citizen suit. On
(...continued)
2
Mining Co., whose property overlies portions of the Roosevelt Tunnel.
3
The magistrate judge found that Cripple Creek, which accepts Roosevelt
Tunnel’s discharge, is a “navigable water” under 33 U.S.C. § 1362(7). See Order
at 16–17. El Paso does not challenge this ruling on appeal, and we therefore
accept it as true for purposes of this opinion.
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July 25, 2002, the CWQCD issued a Notice of Violation/Cease and Desist Order,
alleging that El Paso’s “ongoing discharge of pollutants into the Roosevelt
Tunnel, and from the Roosevelt Tunnel into Cripple Creek constitutes an
unauthorized discharge of pollutants from a point source(s) into state waters.”
Aplt. App. I, at 242. The CWQCD’s case was referred to a state administrative
law judge for adjudication. Following discovery, cross-motions for summary
judgment, and oral argument, the ALJ issued an initial decision in December
2002, approximately one month after the magistrate judge had granted the
Plaintiffs’ motion for summary judgment in the federal case.
In the initial decision, the ALJ considered arguments similar to those
addressed by the magistrate judge. The ALJ concluded that the Colorado Water
Quality Control Act was applicable to point source owners such as El Paso. Thus,
as with the federal case, El Paso could be liable for pollutants running out of its
mine workings even though it was not currently mining the property. However,
contrary to the magistrate judge’s conclusion, the ALJ saw no evidence
establishing a hydrological connection between the El Paso shaft and the
Roosevelt Tunnel portal. The ALJ stated:
[CWQCD] has failed to prove that the zinc and manganese in the
water coming out of the Roosevelt Tunnel portal has its origin in the
El Paso Mine. Reliable measuring devices to determine the flow of
water in the Roosevelt Tunnel have not been used. This, along with
the dramatic drop in zinc and manganese concentrations from the El
Paso Shaft to the portal, casts sufficient doubt on whether any of the
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zinc and manganese tested at the portal is coming from the El Paso
Mine.
Aplt. Supp. App. at 203.
Nevertheless, despite the lack of evidence linking water from the shaft to
the tunnel’s portal, there was sufficient evidence that the El Paso shaft was
discharging pollutants into state waters from a point source. See Colo. Rev. Stat.
§ 25-8-501 (2004). The ALJ found that the water in the Roosevelt Tunnel
constituted “state waters” as defined in Colo. Rev. Stat. § 25-8-103(19) (2004),
and the evidence showed the El Paso shaft was discharging pollutants into those
waters. The state of Colorado and El Paso agreed to stay further administrative
proceedings until the federal court proceedings had ended. The ALJ’s initial
decision, therefore, has not been appealed.
D. Appellate Proceedings
Following appellate briefing and oral argument, we became concerned that
our decision may interfere with the state’s administrative processes. We therefore
ordered the parties to brief a number of additional questions regarding the status
of the state proceedings and the desirability of a stay of this appeal pending
finality by the state. In January 2005, we abated the case, noting in part that the
CWA manifests a “pro-federalism thrust” whereby states have the primary role in
administration and enforcement . See 33 U.S.C. §§ 1251(b), 1342(b) and (c).
Nevertheless, because these matters have been pending for some time, we stated
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that if the State of Colorado and El Paso were not able to lift the stay in the state
administrative matter and commence further proceedings or settle this matter
within ninety days of our order, we would lift our abatement and rule on the
merits.
The parties have informed us that the state proceedings have been stayed by
agreement of the parties. Settlement and mediation have also been unsuccessful.
We therefore agree with the parties that the underlying issues in this case will be
advanced by our resolution of this appeal.
II. ANALYSIS
A. Subject Matter Jurisdiction for “Wholly Past” Violations
We first address whether the magistrate judge erred in finding that subject
matter jurisdiction exists to hear this case. Section 505(a)(1) of the CWA grants
citizens the right to bring civil actions against any person “alleged to be in
violation of” effluent standards or limitations. 33 U.S.C. § 1365(a)(1). There has
been much debate in recent years regarding when a person is “in violation of” the
CWA, particularly with respect to whether the defendant must currently be
engaged in the polluting practice or, instead, whether jurisdiction lies for past
practices that have ceased by the time the suit is filed.
In 1987, the Supreme Court took a step toward resolving the confusion with
its opinion in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc.,
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484 U.S. 49 (1987). In Gwaltney, the Supreme Court held that Congress, by using
the present tense phrase “in violation,” did not intend to permit citizen suits based
on “wholly past violations” of the CWA. Instead, the Court reasoned that because
the language and structure of the citizen suit provision is “primarily forward-
looking” or preventative, id. at 59, the most natural reading of Section 505(a)(1)
requires “citizen-plaintiffs [to] allege a state of either continuous or intermittent
violation—that is, a reasonable likelihood that a past polluter will continue to
pollute in the future.” Id. at 57. Thus, to establish jurisdiction, citizen-plaintiffs
need only make good-faith allegations of continuous or intermittent violations.
Id. at 64. Defendants such as El Paso may then challenge the plaintiff’s
allegations by showing that any violations, i.e., discharges, have ceased and are
not likely to recur. “If the defendant fails to make such a showing after the
plaintiff offers evidence to support the allegation, the case proceeds to trial on the
merits, where the plaintiff must prove the allegations in order to prevail.” Id. at
66.
1.
Although it is now clear that citizen suits cannot be based on effluent
violations that occurred entirely in the past, other issues raised by Gwaltney
remain unresolved. One such issue is presented here: When is a CWA violation
“continuous or intermittent” such that it can be characterized as an ongoing
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violation rather than a wholly past violation? Answering this question is
particularly difficult in cases such as this where the conduct that gave rise to the
violation has ceased, but the effects continue.
Some courts, interpreting the CWA and Gwaltney expansively, have held
that the continuing migration of pollutants from past discharges is sufficient to
establish jurisdiction under Section 505(a)(1). See Umatilla Waterquality
Protective Ass’n v. Smith Frozen Foods, Inc., 962 F. Supp. 1312, 1322 (D. Or.
1997) (holding “a discharge of pollutants is ongoing if the pollutants continue to
reach navigable waters, even if the discharger is no longer adding pollutants to
the point source itself”); Werlein v. United States, 746 F. Supp. 887, 897 (D.
Minn. 1990) (holding pollutants from past discharges that are released over time
by infiltration of contaminated soil is “ongoing pollution”), class. cert. vacated by
793 F. Supp. 898 (D. Minn. 1992).
Other courts, before and after Gwaltney, have reached the opposite
conclusion, holding that the migration of residual contamination from prior
discharges is not an ongoing violation. See Connecticut Coastal Fishermen’s
Ass’n v. Remington Arms Co., 989 F.2d 1305, 1313 (2d Cir. 1993) (“The present
violation requirement of the Act would be completely undermined if a violation
included the mere decomposition of pollutants.”); Pawtuxet Cove Marina v. Ciba-
Geigy Corp., 807 F.2d 1089, 1094 (1st Cir. 1986) (dismissing citizen suit because
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the alleged polluter had ceased operations by the time of the suit); Hamker v.
Diamond Shamrock Chem. Co., 756 F.2d 392, 397 (5th Cir. 1985) (dismissing
complaint because it “alleges only a single past discharge with continuing effects,
not a continuing discharge”); Aiello v. Town of Brookhaven, 136 F. Supp. 2d 81,
121 (E.D.N.Y. 2001) (holding CWA does not allow citizen suit against a past
polluter “for the ongoing migrating leachate plume”); Wilson v. Amoco Corp., 33
F. Supp. 2d 969, 975–76 (D. Wyo. 1998) (concluding “that migration of residual
contamination from previous releases does not constitute an ongoing discharge”),
factual background stated in 989 F. Supp. 1159 (D. Wyo. 1998); Friends of Santa
Fe County v. LAC Minerals, Inc., 892 F. Supp. 1333, 1354 (D.N.M. 1995)
(finding no ongoing discharge from pile of waste rock on surface); Brewer v.
Ravan, 680 F. Supp. 1176, 1183 (M.D. Tenn. 1988) (dismissing citizen suit based
on allegations made against a permanently closed manufacturing plant).
2.
According to El Paso, we lack jurisdiction to hear this case based on this
latter set of cases. The El Paso shaft, the argument goes, is merely a conduit
through which pollutants from past discharges are alleged to flow. If this were
simply a case about the continuing migration of contaminants from a past
discharge, El Paso’s argument might have some appeal. But contrary to El Paso’s
characterizations, more is at issue here. Instead, as recognized by the magistrate
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judge, the Plaintiffs in this case have alleged “an ongoing discharge of pollutants
from a point source into navigable waters.” Order at 13 (emphasis added). This
factual distinction renders the cases cited by El Paso inapplicable.
The ongoing migration cases relied on by El Paso all involve an identifiable
discharge from a point source that occurred in the past, whether it be a spill,
Wilson, 989 F. Supp. at 1163, the accidental leakage at a chemical plant, Hamker,
756 F.2d at 394, the discharge of lead shot and clay targets at a firing range,
Remington Arms, 989 F.2d at 1309, or dumping of waste rock at a mine, LAC
Minerals, 892 F. Supp. at 1337. At the time of suit, the discharging activity from
a point source in all of these cases had ceased; all that remained was the
migration, decomposition, or diffusion of the pollutants into a waterway. In
contrast, this case does not involve the mere migration, decomposition, or
diffusion of pollutants from an identifiable discharge that occurred sometime in
the past. That the mine shaft itself is a point source is not reasonably contestable.
Here, the discharge from the point source is occurring now, and is not the result
of some past discharge that occurred on the surface of El Paso’s property. The
Act defines “point source” as, among other things, “any discernible, confined and
discrete conveyance, including but not limited to any . . . tunnel [or] conduit . . .
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from which pollutants are or may be discharged.” 4 33 U.S.C. § 1362(14). The
magistrate judge concluded that the El Paso shaft was a “point source” as defined
by the Act, and El Paso does not challenge this determination on appeal. Thus,
since plaintiffs have alleged the contemporaneous discharge from a point
source—the El Paso shaft—which flows through other conveyances to navigable
waters, CWA jurisdiction is established.
Admittedly, our conclusion is largely driven by the unique facts of this
case. As alleged by Plaintiffs, the hydrology of the El Paso shaft and Roosevelt
Tunnel is such that pollutants continually flow through the rock and mine
workings until they reach the shaft, where they are then discharged into the
4
This section reads, in its entirety,
The term “point source” means any discernible, confined and discrete
conveyance, including but not limited to any pipe, ditch, channel, tunnel,
conduit, well, discrete fissure, container, rolling stock, concentrated animal
feeding operation, or vessel or other floating craft, from which pollutants
are or may be discharged. This term does not include agricultural
stormwater discharges and return flows from irrigated agriculture.
The CWA also regulates nonpoint source discharges. See 33 U.S.C.
§§ 1288, 1329. Nonpoint source pollution is not statutorily defined, although it is
commonly understood to be pollution arising from dispersed activities over large
areas that is not traceable to a single, identifiable source or conveyance. See
League of Wilderness Defenders/Blue Mts. Biodiversity Project v. Forsgren, 309
F.3d 1181, 1184 (9th Cir. 2002). Groundwater seepage that travels through
fractured rock would be nonpoint source pollution, which is not subject to NPDES
permitting. Thus, absent the El Paso shaft, which is undoubtedly a point source,
this case would implicate a different set of issues altogether.
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tunnel. The Roosevelt Tunnel, in fact, was originally constructed for the very
purpose of draining groundwater from the rock and lowering the water table so
that early twentieth century miners could more easily access the desired mineral
veins. The shaft and tunnel are therefore working as originally intended, with the
unfortunate byproduct being that water which is discharged from the shaft
apparently contains some pollutants. The origin of these pollutants is not
precisely known, but El Paso has yet to put forth any evidence to rebut the
allegation that pollutants are currently discharging and will continue to discharge
in the future.
This would be a far different case if there were no point source connection
from El Paso’s property into the Roosevelt Tunnel. If the Plaintiffs complained
only that the pollutants migrated from surface waste piles through the ground to
the tunnel, or seeped into the tunnel from naturally occurring mineral deposits in
the ground, El Paso’s argument as a passive landowner would have considerable
force. But here we have a man-made point source that delivers pollutants and
continues to discharge them into the Roosevelt Tunnel. These facts distinguish
this case from those involving the migration of pollutants from prior discharges.
In sum, the discharge of pollutants at the El Paso shaft is alleged to be
recurring and ongoing, and El Paso has not shown any facts that suggest
otherwise. Thus, finding the Plaintiffs have made “a good-faith allegation of
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continuous or intermittent violation,” Gwaltney, 484 U.S. at 64, we hold that the
magistrate judge did not err in asserting subject matter jurisdiction over this case.
In our view, the Plaintiffs have sufficiently alleged that El Paso is “in violation
of” effluent standards or limitations under Section 505(a)(1), 33 U.S.C.
§ 1365(a)(1).
B. Liability Under § 402(a) of the CWA for “Discharge” of a Pollutant
As noted, Section 301(a) of the CWA states that “the discharge of any
pollutant by any person shall be unlawful,” unless authorized by an NPDES
permit. 33 U.S.C. § 1311(a). The CWA sets forth guidelines for the NPDES
permits for the discharge of pollutants in Section 402, 33 U.S.C. § 1342. To
establish a violation of these sections, a plaintiff must prove that the defendant
(1) discharged (2) a pollutant (3) into navigable waters (4) from a point source (5)
without a permit. See Nat’l Wildlife Fed’n v. Gorsuch, 693 F.2d 156, 165 (D.C.
Cir. 1982).
1.
In granting the Plaintiffs’ motion for summary judgment, the magistrate
judge found that each of these elements had been proved. On appeal, El Paso and
amicus curiae Mountain States Legal Foundation focus our attention on the first
required element, i.e., that the defendant “discharge” a pollutant. As defined by
the CWA, the term “discharge of a pollutant” means the “addition of any
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pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12)
(emphasis added). As explained below, we agree with Plaintiffs that El Paso can
be liable under Sections 301(a) and 402 for the “discharge” occurring at the El
Paso shaft.
The Plaintiffs cite ample authority from case law for the proposition that
discharges from inactive mines can violate the CWA. See Comm. to Save
Mokelumne River v. East Bay Mun. Util. Dist., 13 F.3d 305, 308 (9th Cir. 1993)
(holding that the collecting and channeling of surface runoff from inactive mine is
“discharge of pollutants”); American Mining Congress v. EPA, 965 F.2d 759,
764–66 (9th Cir. 1992) (holding EPA regulation requiring discharge permit for
stormwater runoff from inactive mine is reasonable); Beartooth Alliance v. Crown
Butte Mines, 904 F. Supp. 1168, 1172–74 (D. Mont. 1995) (holding defendants
liable for discharges from inactive mine). Administrative regulations and an EPA
policy statement provide further support for this view. See 40 C.F.R
§ 122.26(b)(14)(iii) (stating “active or inactive mining operations” are among the
industrial activities that require a stormwater discharge permit under 33 U.S.C.
§ 1342(p)); EPA Region VIII policy statement, Ref. 8WM-C (Dec. 22, 1993)
(stating “discharges from abandoned mine adits are point sources which require a
traditional NPDES permit”).
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But these authorities, which merely establish a rule that inactive or
abandoned mining sites are not entirely exempt from NPDES regulation, do little
to advance the Plaintiffs’ argument. El Paso’s argument on appeal is more
nuanced. El Paso, as the successor owner to the mining company that constructed
the mine shaft point source, argues that it has never conducted any mining
operations on its property; characterizing itself therefore as a purely “passive
landowner.” El Paso then argues it cannot be liable for the “discharge” (i.e.,
addition) of any pollutants. In other words, the issue is not the inactive status of
the El Paso mine, but whether the definition of “discharge” requires some
affirmative conduct by El Paso. As the magistrate judge recognized, this
distinction renders inapplicable the cases cited by Plaintiffs because the
defendants in those cases had engaged in active mining operations at some point
or participated in the construction of a point source on their property.
2.
Our task, then, broadly defined, is to discern whether Congress intended
successor owners of a point source to be subject to Section 402’s NPDES
permitting requirements. “As in all statutory construction cases, we begin with
the language of the statute.” Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450
(2002). If the statutory language is not ambiguous, and “the statutory scheme is
coherent and consistent,” our inquiry is at an end. Id. (quotation omitted).
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However, if the language of the statute is ambiguous, meaning it can be
reasonably understood in two or more different senses, United States v. Quarrell,
310 F.3d 664, 669 (10th Cir. 2002), we must dig further. “The plainness or
ambiguity of statutory language is determined by reference to the language itself,
the specific context in which that language is used, and the broader context of the
statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997). The
process of statutory construction has been described as “a holistic endeavor,”
taking into account, at a minimum, the “statute’s full text, language as well as
punctuation, structure, and subject matter.” United States Nat'l Bank v. Indep.
Ins. Agents of Am., 508 U.S. 439, 455 (1993).
We begin, therefore, with the statute’s text: Unless authorized by an
NPDES permit, “the discharge of any pollutant by any person shall be unlawful.”
33 U.S.C. § 1311(a). The “discharge of a pollutant,” as noted, means the
“addition of any pollutant to navigable waters from any point source.” 33 U.S.C.
§ 1362(12). The Act does not otherwise define the term “addition,” and the
legislative history is silent on the matter. See Catskill Mts. Chapter of Trout
Unlimited v. City of New York, 273 F.3d 481, 493 (2d Cir. 2001). “Addition” is
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defined by Webster’s New International Dictionary (2002) as “the act or process
of adding.” 5
El Paso argues the plain meaning of the word “addition” requires
affirmative conduct by some actor before liability attaches. Amicus argues
further that Congress made unlawful the addition of any pollutant from any point
source “by any person.” 33 U.S.C. § 1311(a) (italics added). This additional
language, argues amicus, shows Congress only meant to penalize active conduct
by “persons” that results in a discharge of pollutant, not purely passive owners of
a point source. The Plaintiffs, on the other hand, emphasize the determiner “any.”
Because “discharge” is defined as “any addition of any pollutant to navigable
waters from any source,” 33 U.S.C. § 1362(12), the Plaintiffs argue the focus of
the Act is not on who does the discharging, but rather the fact of discharge.
5
Thus, read together, the Act requires the following:
“the discharge” (§ 1311)
[defined as the “addition” (§ 1362(12))]
[meaning the “act or process of adding” (Webster’s)]
“of any pollutant” (§ 1362)(12))
“to navigable waters” (§ 1362)(12))
“from any point source” (§ 1362(12))
[defined as “any . . . channel, tunnel, conduit, well,
discrete fissure” (§ 1362(14))]
“of any pollutant” (§ 1311)
“by any person” (§ 1311)
“shall be unlawful.” (§ 1311).
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Our task in answering this question is made easier by considering the
context of the statute. See United States v. Nichols, 184 F.3d 1169, 1171 (10th
Cir. 1999) (when interpreting statutory language, “appellate courts must examine
the . . . language in context, not in isolation”). When viewed as a whole, it is
apparent the liability and permitting sections of the Act focus on the point of
discharge, not the underlying conduct that led to the discharge. See, e.g., 33
U.S.C. § 1311(e) (stating that effluent limitations established by this section
“shall be applied to all point sources or discharge of pollutants”); id. at
§ 1342(a)(1) (stating the EPA may “issue a permit for discharge of any
pollutant”); see also id. at § 1251(a)(3) (stating “it is the national policy that the
discharge of toxic pollutants in toxic amounts be prohibited”). Furthermore, as
the magistrate judge noted, the Act consistently refers to the obligations of the
“owners and operators” of a point source, suggesting that successor land owners
such as El Paso are covered by the Act’s provisions if they are responsible for a
functional point source. See, e.g., id. at § 1311(g)(2) (providing that “owner or
operator” of a point source may apply for modification of permit requirements);
id. at § 1318(a) (stating that EPA shall require the “owner or operator” of a point
source to establish and maintain records and perform other monitoring duties).
Thus, in our view, the Act’s language does not exempt successor
landowners from liability under Sections 301(a) and 402 for point source
-22-
discharges occurring on their land. Although we agree the term “addition”
implies affirmative conduct, such a requirement is satisfied by the
contemporaneous introduction of polluted water from El Paso’s property, through
a point source owned and maintained by El Paso, to a navigable stream, Cripple
Creek.
Regulations promulgated by the EPA provide some interpretative support.
The phrase “addition of any pollutant” is defined as “surface runoff which is
collected or channelled by man; discharges through pipes, sewers, or other
conveyances owned by a . . . person which do not lead to a treatment works; and
discharges through pipes, sewers, or other conveyances, leading into privately
owned treatment works.” 40 C.F.R. § 122.2 (emphasis added); see also EPA
Notice, 55 Fed. Reg. 35248-01 (Aug. 28, 1990) (stating drainage from abandoned
mines can be point source pollution where the owner can be found; otherwise, it
is nonpoint source pollution). While not a substitute for the CWA’s plain
language, this regulation reinforces the view that ownership of a point source will
trigger liability. Moreover, in a regulation requiring NPDES permits for
stormwater runoff from inactive mines, the EPA defines inactive mines as
“mining sites that are not being actively mined, but which have an identifiable
owner/operator.” 40 C.F.R. § 122.26(b)(14)(iii) (emphasis added). Again, the
focus here is on ownership of the point source, not the discharge-causing conduct.
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Significantly, El Paso points to no regulations, and we have found none, which
support the view that successor landowners not currently mining their property are
exempt from liability where a point source is still discharging pollutants.
3.
El Paso does, however, cite some case authority for its position. The
Seventh Circuit was faced with a case involving CWA liability for pollutants (silt
and sediment) caused by the removal of a 150-year-old dam. In Froebel v. Meyer,
217 F.3d 928 (7th Cir. 2000), the court considered whether a landowner,
Waukesha County, could be liable under Section 404 of the CWA. Although the
county was not involved in the dam’s removal, it owned the property on which the
dam was located at the time plaintiff filed suit. Id. at 932. The plaintiff’s theory
was that the opening in the dam during demolition became a point source that
channeled silt laden water downstream. They argued that Waukesha County
needed a permit for the river’s now unimpeded flow. Id. But the County had
nothing to do with the dam’s construction, operation, or demolition. The Seventh
Circuit stated that the definition of “discharge” under Section 404 “strongly
suggest[s] that a Section 404 permit is required only when the party allegedly
needing a permit takes some action, rather than doing nothing whatsoever.” Id. at
938. Thus, the court dismissed the case against the county on the grounds that
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“[plaintiff’s] claim would essentially require Waukesha County to seek a permit
to do nothing but continue to own the land.” Id. at 939.
Although this case offers some support to El Paso’s interpretation of the
CWA, we find it unpersuasive for three reasons. First, the portion of the Froebel
opinion relied on by El Paso interprets Section 404 of the CWA, not Section 402,
which is at issue in this case. It is true that the court in Froebel was construing
the word “discharge,” which applies to both CWA sections. But whereas Section
402 addresses the “discharge of any pollutant,” Section 404 addresses “discharge
of dredged or fill material.” 33 U.S.C. § 1344(a). This latter phrase is defined as
“any addition of dredged material . . . including redeposit of dredged material
other than incidental fallback” into navigable waters. 33 C.F.R. § 323.2(d)(1).
The requirement that the alleged violator introduce the pollutants into the water is
made clearer by the terms “dredged” and “redeposit,” words that do not appear in
Section 402. In fact, in Froebel the dredged material was already in the navigable
waters.
Second, whereas Section 402 focuses on the point source and its ownership,
Section 404 emphasizes the “activity” giving rise to the discharge of dredged
material, which further distinguishes the two sections. See, e.g., 33 U.S.C.
§ 1344(e)(1) (stating the EPA may issue permits for “any categories of activities
involving discharges of dredged or fill material”); id. at § 1344(f)(2) (must obtain
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permit for discharge incidental to “any activity” altering the use of navigable
waters). Waukesha County engaged in no “activity” whatsoever.
And finally, the term “discharge of any pollutant” that appears in Section
402 must be understood as defined elsewhere in the Act. See 33 U.S.C. §
1362(12) (“the addition of any pollutant to navigable waters from any point
source”). The introduction of “point source” into the statutory scheme to define
“discharge” and give context to “addition” can only mean that we look to whether
the point source is actively adding pollutants to navigable waters. And if the
point source is “discharging,” the “person” who owns or operates the point source
is liable under the Act. In this respect, our holding is not inconsistent with
Froebel. There, in fact, the court specifically held that the county was not liable
under Section 402 because the removed dam was not a point source. Froebel, 217
F.3d at 937 (holding that removed dam was not a “point source” because that term
“connotes the terminal end of an artificial system for moving water, waste, or
other materials”). Here, in contrast, El Paso has conceded that the shaft is a point
source.
Thus, we do not find Froebel persuasive in this Section 402 case. The
better view is that point source owners such as El Paso can be liable for the
discharge of pollutants occurring on their land, whether or not they acted in some
way to cause the discharge. See Sierra Club v. Abston Constr. Co., 620 F.2d 41,
-26-
45 (5th Cir. 1980) (noting in dicta that “[n]othing in the Act relieves miners from
liability simply because the operators did not actually construct those
conveyances, so long as they are reasonably likely to be the means by which
pollutants are ultimately deposited into a navigable body of water”). This is a
case where if you own the leaky “faucet,” you are responsible for its “drips.”
Our own circuit precedent supports this view. In United States v. Earth
Sciences, Inc., 599 F.2d 368 (10th Cir. 1979), we considered whether the
unintentional discharge of pollutants from a gold leaching operation violated the
CWA. We found that it did. See id. at 374. In reaching this conclusion, we
noted that the Act was intended to broadly regulate the introduction of pollutants
to streams and rivers. Exempting point source owners without a clear exemption
from Congress from the requirement to obtain NPDES permits for discharges
occurring on their land would undermine a primary objective of the Act. 33
U.S.C. § 1251(a)(1) and (3) (declaration of Congress’s goals and policies).
In sum, we hold that point source owners can be liable under Sections
301(a) and 402 of the CWA for unpermitted discharges that occur from their land
even if they are not actively mining their property. The magistrate judge,
therefore, did not err in holding that El Paso could be liable for discharges
occurring at the El Paso shaft.
C. Hydrological Connection Between El Paso Shaft and Roosevelt
Tunnel Portal
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The final issue before us focuses on fact questions. Did the magistrate
judge err in granting summary judgment for the Plaintiffs by finding that the
undisputed facts established a hydrological connection between the El Paso Shaft
and the Roosevelt Tunnel portal?
We review the grant of summary judgment de novo, applying the same
standard as the district court. Ward v. Utah, 398 F.3d 1239, 1245 (10th Cir.
2005). Summary judgment is appropriate “if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” Fed. R. Civ. Pro. 56(c). When
applying this standard, we view the evidence and draw all reasonable inferences
therefrom in the light most favorable to the nonmoving party. Simms v.
Oklahoma ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d
1321, 1326 (10th Cir. 1999) (citations and quotation omitted).
The language of the CWA requires a connection or link between discharged
pollutants and their addition to navigable waters. See 33 U.S.C. §§ 1311(a),
1362(12). As applied here, Plaintiffs have the burden of establishing that
pollutants, discharged from the El Paso shaft, actually make their way to the
Roosevelt Tunnel portal where they are then discharged into navigable waters
-28-
(Cripple Creek, and, ultimately, the Arkansas River). 6 El Paso argues there were
dueling expert opinions regarding the source and path of the pollutants, and, thus,
the magistrate judge erred in concluding that Plaintiffs had established the
necessary hydrological connection. Plaintiffs counter that any factual
uncertainties created by the experts were not material to the issue of El Paso’s
liability under the CWA, and therefore the magistrate judge correctly concluded
there were no genuine issues of material fact. We summarize the relevant
evidence below.
1. Plaintiffs’ Evidence
Plaintiffs’ expert geologist, Kenneth Klco, filed an expert report opining
that “at least some of the water that is conveyed from [El Paso’s] property, mine,
the El Paso shaft, and related underground workings into the Roosevelt Tunnel is
discharged into Cripple Creek at the portal of the Roosevelt Tunnel.” Aplt. App.
III, at 1366. Klco based his conclusion on site inspections and his review of
various documents, maps, and photographs of El Paso’s property. In June 2001,
for example, Klco conducted an exterior inspection of El Paso’s property, noting
that the El Paso shaft was surrounded by a large waste rock pile and that the
6
We stress, again, that it is the combination of the El Paso shaft, a point
source, and the Roosevelt Tunnel, another point source, that establishes the
connection to a navigable stream. This system of infrastructure distinguishes our
case from the migration and seepage cases.
-29-
property contained “extensive mining disturbances.” Id. at 1367. On this
occasion, he also observed discharge from the Roosevelt Tunnel into Cripple
Creek, which he described as “continuous.” Id. In August 2001, Klco again
inspected the interior of the Roosevelt Tunnel. His expert report states that he
entered the tunnel from the portal and walked the stretch of the tunnel to a point
past the El Paso shaft. Klco observed water continuously flowing from the El
Paso shaft area all the way to the portal, and when he reached the shaft, he saw
water “raining down” from the shaft and related underground workings. Id. at
1368. Beyond the El Paso shaft, Klco observed that the tunnel turned to the
northwest and there was no longer a continuous flow of water, although there was
intermittent pooling of water on the tunnel floor.
In his deposition, Klco explained further that he observed several instances
of water seeping into the tunnel via the ribs or roof of the tunnel in the stretch
between the portal exit and the El Paso shaft intersection. He also stated that
these seeps are potential sources of pollution because water can pick up
pollutants—including zinc and manganese—as it travels through faults and
fractures in the rock. Additionally, Klco acknowledged that pollutants, once
deposited into the tunnel, may not reach the portal because some water exfiltrates
into the tunnel floor. Water and pollutants may also be lost due to evaporation
and dilution. In his estimation, however, “better than half” of the water and
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pollution discharged at the portal originate on El Paso’s property. Aplt. App. II,
at 666–67.
The Plaintiffs hired two other experts as well. Robert Burm, an
environmental engineer, opined that “the El Paso shaft and the related
underground workings serve as conduits that convey water from [El Paso’s]
property to the Roosevelt Tunnel. In turn, the water is then drained by the
Roosevelt Tunnel and is finally discharged into Cripple Creek.” Id. I, at 262.
Ann Maest, an aqueous geochemist, rendered a similar opinion: “[I]t is my
opinion that at least some of the metals and other contaminants being discharged
into Cripple Creek from the Roosevelt Tunnel are generated from the El Paso
Mine, El Paso shaft, and related underground workings.” Id. IV, at 1483. Both of
these experts based their conclusions on Klco’s examination of the tunnel, as well
as other inspection reports, maps, and diagrams.
Among the significant documents the Plaintiffs’ experts relied on was an
inspection report by Tom Boyce, a CWQCD inspector who inspected the
Roosevelt Tunnel in May 1995. According to Boyce’s report, water flowed
continuously from the El Paso shaft to the portal, but it fluctuated numerous times
from lows of approximately two gallons per minute to highs of approximately 15
gallons per minute. Along the two and a half mile stretch from the portal to the
El Paso shaft, Boyce observed there were “dozens” of seeps and “water was
-31-
infiltrating in areas of high porosity and likewise being regenerated by seepage
from the walls and ceiling of the tunnel.” Id. III, at 1423. He also observed that
water continued to flow from beyond the El Paso shaft at the same rate and
frequency as below the shaft, although the seeps seemed to decrease. 7 Plaintiffs
also relied on a January 1995 letter authored by John Hardaway, the
environmental affairs manager from a neighboring mine who had conducted
numerous inspections of the Roosevelt Tunnel. According to Hardaway, “the first
sign of continuous flow toward the portal in the Roosevelt Tunnel usually occurs
at about the tunnel’s intersection with the El Paso Mine shaft.” Id. at 1414.
2. El Paso’s Evidence
El Paso’s expert, Robert Brogden, is a hydrologist and groundwater
geologist. He opined that the Roosevelt Tunnel and its surroundings comprise
complex geology that is poorly understood based on current data. He thus
criticizes the Plaintiffs’ experts for drawing conclusions with respect to the origin
and flow of pollutants at the Roosevelt Tunnel portal based on incomplete
information. He states, for example, that “pinpointing an exact source or sources
of water that flows from the portal is difficult because of the lack of data that
7
John Hardaway, who accompanied Boyce on the May 1995 inspection,
filed an affidavit in which he disagreed with Boyce’s observation that water
continued to flow from above the El Paso shaft. According to Hardaway, the
water they encountered above the shaft was due to backed up water coming from
the shaft.
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adequately describe the geology and hydrology of the area, and the actual
movement of ground water. . . . Considerably more data are required before any
quantitative conclusions can be drawn as to the exact sources of water flowing
from the portal.” Aplt. App. II, at 797. Thus, Brogden does not opine there is no
hydrological connection between the El Paso shaft and tunnel portal; rather, he
asserts that the Plaintiffs’ experts have no basis to conclude that such a
connection exists.
According to Brogden, the geology of the Cripple Creek area is
characterized by two distinct units, the “diatreme” and “country rock.” The
diatreme, which dominates the region, is a mass of rock composed of volcanic
breccia. Because the diatreme is relatively permeable, water flows easily and
rapidly through open spaces in the rock. Country rock, on the other hand, is made
of granite and other dense forms of rock. Unlike the diatreme, water does not
flow freely through the country rock; instead, water only flows through fractures
and faults where the rock has been broken. The El Paso shaft is cut into country
rock, and the Roosevelt Tunnel cuts through areas of both kinds of rock.
Brogden opined that water discharged from the portal originates from
surface precipitation that inflitrates the ground and then moves downward through
fractures and faults in the country rock. As water moves downward along the
fault lines, it intersects with the El Paso shaft and Roosevelt Tunnel at numerous
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points. Thus, the Roosevelt Tunnel receives inflow along most of its length, and
this water originates from a number of properties that overlie the tunnel.
Furthermore, according to Brogden, water in the tunnel infiltrates into the tunnel
floor before reaching the portal (especially those portions of the tunnel
comprising the diatreme). Accordingly, “water probably enters and leaves the
Roosevelt several times between the El Paso Mine shaft and the portal,” and “it is
likely that a large part of the water (at some times, all of the water) that flows
from the portal is derived from water that infiltrates into the tunnel between the
El Paso Mine shaft and the portal.” Id. at 795. In sum, some of the water that
may enter the tunnel from the El Paso shaft or upward from it, seep out of the
tunnel into the groundwater, never reaching the portal exit.
To further support Brogden’s conclusions, El Paso points to a July 2001
memo authored by CWQCD personnel. Although the memo notes “the primary
source of water entering the Roosevelt Tunnel is the El Paso shaft where it
intersects the Roosevelt,” it ultimately concludes, consistent with Brogden’s
report, that “more work needs to be done before the responsible parties can be
identified.” Id. I, at 90. And further:
The full extent of the underground mine workings probably has not
been mapped, and the effects of the workings on the hydrology is
uncertain because of the limited information. More information is
needed about the underground working of the El Paso Mine and any
other mines connected to the El Paso along with ownership.
-34-
Id. at 91.
El Paso also relies on water sampling data taken from the El Paso shaft in
October 1994. The sampling data shows that zinc concentrations in the water
decreased dramatically as water flowed towards the portal. Within the first 4,000
feet from the shaft, zinc levels decrease from 4.1 mg/l to .0009 mg/l, representing
a 98.85% decrease in less than a quarter of the distance between the shaft and the
portal. Approximately half way between the shaft and portal, zinc levels then
increased to .916 mg/l. This data, according to El Paso, underscores the complex
geology and hydrology of the Roosevelt Tunnel and casts doubt on the Plaintiffs’
assertion that pollutants discharged at the portal originate at the El Paso shaft.
3. Genuine Issues of Material Fact
In granting Plaintiffs’ motion for summary judgment, the magistrate judge
found that “[t]he experts agree that some of the polluted water conveyed to the
Tunnel by means of the El Paso shaft is discharged at the Tunnel portal on an
intermittent basis.” Order at 31. Accordingly, the magistrate judge concluded the
evidence was sufficient to demonstrate that El Paso was discharging pollutants
into a navigable water from a point source without an NPDES permit.
El Paso argues on appeal that the magistrate judge did not view the facts
favorable to the non-moving party, and we agree. Viewed in the proper light, the
Plaintiffs have failed to establish the absence of fact issues necessary to show a
-35-
hydrological connection. Although, as the magistrate judge recognized, the
experts agree that at least some of the water from the El Paso shaft reaches the
portal, there is no agreement regarding whether pollutants coming from the shaft
are ever discharged at the portal. It may not be a difficult leap to presume that if
water makes the two and a half mile journey, then so do pollutants. But this
ignores the evidence showing dramatic declines in zinc levels as water flows from
the El Paso shaft toward the portal. It further fails to take into account the
apparently complex process of infiltration and exfiltration that occurs along the
length of the Roosevelt Tunnel. Even the Plaintiffs’ strongest evidence—that
water samples at the shaft and the tunnel portal (samples taken by Cripple Creek
& Victor Mining Co.) both contain zinc and manganese—is less than convincing
given the uncertainties by which the data were collected. 8 Viewed in the light
most favorable to the nonmoving party, then, there is a genuine issue of material
fact regarding the source of pollutants discharged at the portal, and summary
judgment was not appropriate.
Our standard for summary judgment bears repeating. At the summary
judgment stage, non-movants such as El Paso are given “wide berth to prove a
8
See supra note 2. The record contains only two water samples taken at
the El Paso shaft. Although zinc and manganese were detected, no samples link
water from the El Paso shaft to water at the Roosevelt Tunnel portal.
-36-
factual controversy exists.” Jeffries v. Kansas Dep’t of Soc. & Rehab. Servs., 147
F.3d 1220, 1228 (10th Cir. 1998) (quotation omitted). Our role is to assess
“whether the evidence presents a sufficient disagreement to require submission to
a jury or whether it is so one-sided that one party must prevail as a matter of
law.” Id. at 1228. In this case, the evidence as a whole is not so one-sided that
Plaintiffs are entitled to prevail as a matter of law. Nor is this a case where the
non-moving party has raised only a “scintilla” of evidence in hopes of creating a
factual dispute. See Simms, 165 F.3d at 1326. Rather, El Paso has presented
compelling and unrebutted evidence that pollutants enter and exit the Roosevelt
Tunnel at numerous places along the two and a half mile route from the El Paso
shaft to the portal. Whether such evidence stands up under cross-examination or
is sufficient to allow El Paso to escape liability is for the trier of fact to decide.
Furthermore, we cannot ignore the larger context of this litigation.
Although we do not rely on the findings of the ALJ in the related CWQCD
proceedings, we note his observations about the factual complexity of the tunnel
geology. Following evidentiary hearings, which included direct expert testimony
and cross-examination by both sides, the ALJ found that “[CWQCD] has failed to
prove that the zinc and manganese in the water coming out of the Roosevelt
Tunnel portal has its origin in the El Paso Mine.” Aplt. Supp. App. at 203.
Particularly relevant to the ALJ’s conclusion was the revelation that reliable
-37-
measuring devices and other scientific tools have never been used to determine
the flow of water in the Roosevelt Tunnel. The ALJ noted, for example, that
although CWQCD employees discussed placing recording weirs in the Roosevelt
Tunnel in order to determine how much water was coming down the El Paso
shaft, no such device was ever used. Expert testimony also established that a
flume—which has never been used—would be another method of recording
accurate flows. Nor has any party ever conducted a dye tracing test in order to
determine the path of water in the tunnel. 9 The ALJ also noted that CWQCD’s
expert “does not have objective scientific data to explain why the zinc levels drop
so dramatically from the shaft to the portal.” Id. at 201. As noted above, the
Plaintiffs’ experts in this case are similarly silent on this point. 10
Finally, El Paso has asked us to take judicial notice of a recent ruling by
the district court in parallel litigation brought by the Plaintiffs against several
active mining companies. See Sierra Club, et al v. Cripple Creek & Victor Gold
Mining, Co., supra note 1. In a hearing held pursuant to Federal Rule of
Evidence 702, the district court ruled that Kenneth Klco’s expert opinions were
9
Counsel for Plaintiffs conceded at oral argument that dye testing, properly
conducted, could establish with a high degree of certainty whether pollutants from
the El Paso shaft are ultimately discharged at the portal.
10
On cross-examination, CWQCD’s expert testified that the declining
levels could be due to dilution of the water by addition of more water into the
tunnel or that the zinc could be precipitating out of the water due to changes in
pH or changes in the amount of dissolved oxygen.
-38-
inadmissible because “Mr. Klco lacks the qualifications to express the opinions
and he has not used a sufficiently reliable methodology to formulate them.” The
opinions offered by Klco in the parallel litigation were essentially identical to
those offered here. Nonetheless, our conclusion is based upon our own evaluation
of the record before us, and we therefore decline to take judicial notice of the
district court’s ruling.
III. CONCLUSION
For the aforementioned reasons, we REVERSE and REMAND to the
district court for further proceedings consistent with this opinion.
-39-
Sierra Club v. El Paso Gold Mines, Inc.
Court: Court of Appeals for the Tenth Circuit
Date filed: 2005-08-24
Citations: 421 F.3d 1133
Copy Citations