Free Statement - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 00-cv-02325-MSK-MEH SIERRA CLUB, and MINERAL POLICY CENTER, Plaintiffs, v. CRIPPLE CREEK & VICTOR GOLD MINING COMPANY, ANGLOGOLD ASHANTI (COLORADO) CORPORATION, ANGLOGOLD ASHANTI NORTH AMERICA, INC., and GOLDEN CYCLE GOLD CORPORATION, Defendants; and Civil Action No. 01-cv-02307-MSK SIERRA CLUB, and MINERAL POLICY CENTER, Plaintiffs, v. CRIPPLE CREEK & VICTOR GOLD MINING COMPANY, ANGLOGOLD ASHANTI (COLORADO) CORPORATION, ANGLOGOLD ASHANTI NORTH AMERICA, INC., and GOLDEN CYCLE GOLD CORPORATION, Defendants. ______________________________________________________________________ ANGLOGOLD DEFENDANTS' CLOSING ARGUMENT ______________________________________________________________________

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Defendants Cripple Creek & Victor Gold Mining Company, AngloGold Ashanti (Colorado) Corporation, and AngloGold Ashanti North America, Inc. (the "AngloGold Defendants") respectfully submit the following closing argument for the Court's consideration. Ghosts On the second day of trial, the Court made this comment to Plaintiffs' counsel: "I think you're dancing with ghosts here." Now that all the evidence is in, that observation has proven clairvoyant. Solid, substantial, corporeal evidence that exceedances were "ongoing," that any AngloGold Defendant is the source of the water flows at issue, that Plaintiffs have standing, or that AngloGold Ashanti North America, Inc. is liable for anything simply never materialized. As the AngloGold Defendants warned in their

opening statement, without the experts Plaintiffs originally intended to present, all that is left are ghosts: · Ephemeral policies and conclusions of agency employees about different issues and different locations. · Witness observations that flows exist and pages and pages of water chemistry data ­ all formless without an expert to explain their significance. · Transparent assertions, unsupported by facts, that slight exceedances that have not reappeared for years were "ongoing" on November 27, 2000.

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Illusory "dismay" and "fear of the unknown" that no witness could tie to any Defendants' activities ­ let alone convincingly claim interfered with their use of the area.

This spectral evidence never took bodily form ­ never reached a preponderance of proof. What has instead taken concrete shape from the evidence is that a number of Plaintiffs' claims are now moot due to the issuance of two permits, the relinquishment of unpatented mining claims, and certain changes to site facilities. And despite Plaintiffs' promise in their opening statement, the substantial evidence is that what is "ongoing" is CC&V's compliance with its permits and care at its mine site. What is "ongoing" is responsible behavior in a highly regulated environment over the course of many years. And even after seven days of trial, Plaintiffs could not conjure a preponderance of proof to the contrary. Standing Before addressing the claims themselves, the AngloGold Defendants submit that the Plaintiffs have no right to bring them in the first place. As with their evidence on the claims themselves, the Plaintiffs' standing evidence is remarkable in its contrast to that found sufficient in reported case law. Elements Plaintiffs must prove that (1) they have suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable

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decision. Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180-81 (2000). An association like either Sierra Club or Mineral Policy Center only has standing to bring suit on behalf of its members if its members would otherwise have standing to sue in their own right, if the interests at stake are germane to the organization's purpose, and if neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343 (1977). Individuals who are not actually

"members" of an organization can be considered members for the purpose of standing if they possess all of the "indicia of membership." The critical indicia of membership are that the individuals alone elect those who run the organization, that they alone may serve in such positions, and that they alone finance its activities (including costs of lawsuits). Id. at 344-45. Finally, standing is a jurisdictional requirement and must exist with respect to each claim. Parker v. Scrap Metal, 386 F.3d 993, 1002 (11th Cir. 2004). Evidence 1. Mineral Policy Center. This Plaintiff's own Articles of Organization

specifically state that it shall have no members. (Exh. 520, § 4). They do not say that Plaintiff's purpose is to protect the environment from mining. (Hughes at 16:20-17:3).1

1

References to specific pages and lines of Bateman's testimony are to his testimony on 2/22. References to specific pages and lines of Burm's testimony are to his testimony on cross examination on 2/22. References to specific pages and lines of Fay's testimony are to her testimony on 2/21. References to specific pages and lines of Hughes' testimony are to his testimony on 2/22. References to specific pages and lines of Lewis' testimony are preceded by the particular date of his testimony. References to specific pages and lines of Maest's testimony are to her testimony on cross examination

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Rather, its stated purpose is research, information clearing house, educational meetings, and the like ­ not the prosecution of lawsuits like this. (Exh. 520 at Bates No. CCVRB-502). Its By-laws refer to "so-called members" who are prohibited from voting on any issue and prohibited from participating in any management of the affairs of the corporation. (Exh. 520 at Bates No. CCVRB-515; Hughes at 18:23-19:6). Its "so-called members" do not elect the directors, have no right to serve as directors or officers, and have no control or authority. (Hughes at 18:16-18 and 19:7-20:3; Fay at 26:1-7 and 28:1-11). Thus, there is insufficient evidence that Mineral Policy Center has what standing law recognizes as "members." standing. 2. Both Plaintiffs. There also is insufficient evidence that either of the Accordingly, Mineral Policy Center itself has no

Plaintiffs' members have suffered concrete, actual, particularized injury traceable to the actions of the AngloGold Defendants with respect to each claim in the case. The

reported case law is instructive about what kind of injuries courts recognize as sufficiently concrete, particular, and actual: Standing Case Comparison Case Friends of the Earth, Inc. v. Laidlaw Envt'l Serv. (TOC), Inc., 528 U.S. 167 · · Plaintiff Curtis Patterson Concrete, Particularized and Actual Injury · No longer fished at his boyhood fishing spot because of pollution. · Stopped walking, bird watching, picnicking and wading where she used to do so because of pollution.

on 2/21. References to specific pages and lines of Myer's testimony are to his testimony on cross examination on 2/16 and 2/17.

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(2000).

· · · ·

Pruitt Moore

Lee Sharp Shealy

Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149 (4th Cir. 2000).

· ·

Jones

·

McCullough

· Refrained from fishing, hiking and picnicking because of pollution. · Refrained from hiking, picnicking, camping, swimming, boating and driving because of pollution. · Home value reduced because of pollution. · Refrained from canoeing because of pollution. · Property value diminished because of pollution; swam less in, and ate fewer fish from, polluted lake. · Confidence in his company's ability to market canoeing company undermined and enjoyment of canoeing and swimming reduced because of pollution. · Less likely to scuba dive because of pollution.

Here, the evidence falls far short of (1) establishing such injuries, (2) tracing them to the AngloGold Defendants, or (3) connecting them to each of Plaintiffs' claims: Fourmile Creek Springs (Claim 1) · No witness offered any evidence of injury attributable to the Fourmile Creek Springs. Kirby Hughes never mentioned any springs. Marilyn Fay testified she was concerned about "seepage," but she clarified on crossexamination that what she referred to as that "seepage" was actually the flow characterized by orange precipitate. (Fay at 13-15 and 30:18-31:7). It was undisputed throughout the trial that the orange flow associated with the precipitate is the flow covered by the Carlton Tunnel Permit ­ not the Fourmile Creek Springs flow. Thus, as discussed in the next paragraph, while Mrs. Fay claims injury from "the orange gook," none of her 6
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complaints relate to the Fourmile Creek Springs flow at issue in Claim 1. Accordingly, there is no evidence whatsoever of any injury in fact related to the Fourmile Creek Springs and, accordingly, Plaintiffs lack standing for Claim 1. Carlton Tunnel Permit (Claims 2-7) · Mrs. Fay still uses and enjoys this area, noting it is a "peaceful place." But she believes the flow associated with the orange precipitate injures her because (1) she "feels there is a risk there," (2) the risk is "a real concern . . . because I don't know what's in there," and (3) although she still enjoys the flora and fauna, it seems "significantly less" and "not as healthy as it should be." As a result, she "bets there is a risk of some stuff going on that's not good" (and adds that the "orange gook . . . reminds me that the environment is not being protected here"). (Fay at 12:20-16:5). · No evidence from any source connects any of the alleged ongoing exceedances of any permit limit to the "orange gook." · Mr. Hughes states simply that he has seen dead plants in the area, that he is "unhappy with the unsightliness" of the permitted flow, and that it is "potentially dangerous." (Hughes at 9:11-21). Roosevelt Tunnel (Claim 10) · Mrs. Fay still uses and enjoys this area, but she is distressed and angry that she does not know what is in the water and that it may be affecting the flora. (Fay at 17:15-19:1).

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·

Mr. Hughes says he is deterred from picnicking there because he does not know what is in the water. (Hughes at 10:17-11:5).

Moffat Tunnel Cribbing Wall (Claim 13) · Mrs. Fay is concerned about the flow seen there because she does not know what is in it, but she still uses and enjoys the area. (Fay at 19:19-25 and 33:15-19). · Mr. Hughes says he is deterred and "dismayed" because he is unaware what the flow contains. (Hughes at 11:17-12:6). Squaw Gulch Pond (Claim 14) · Mrs. Fay still enjoys the area but says her enjoyment of the area has diminished because there is "probably algae that causes discoloration in the water" or "[m]aybe it's the pollutants." She feels there is "a risk" to the pond because she does not know what is in the water. (Fay at 20:1621:20). · Mr. Hughes says he is deterred from enjoying the area because he is "fearful of what contaminants may be in the water." (Hughes at 13:3-12). Arequa Gulch (Claims 8, 9, 11, 12) · Mrs. Fay never testified that she recreated in the area, but she does not enjoy looking into this gulch "quite as often" because "cyanide conjures up an image of something very dangerous." (Fay at 22:1-23:13).

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Mr. Hughes says he never recreated in the area but is "fearful that there will be a release of compounds" there that may be "dangerous." (Hughes at 14:11-25).

Thus, the only injury these witnesses identified was their "fear of the unknown" and vague, slight aesthetic changes ­ more ghosts. Neither identified a single direct injury in fact. The closest either witness got to identifying such an impact was Mr. Hughes' testimony that although he does not fish he has not seen a fisherman in Fourmile Creek for years and therefore concludes that "aquatic life is way diminished." (Hughes at 31:7-17). Moreover, both witnesses acknowledged that the conditions they now complain of existed when they first began using these areas, that they still use and enjoy them, and that they have no factual basis for connecting their "fears of the unknown" to any specific activities of any of the AngloGold Defendants. (Fay at 30-43; Hughes at 20-27). Tellingly, both witnesses also acknowledged that it is the general mine expansion and potential legacy of the Valley Leach Facility ­ not the specific claims in this case ­ that cause their real concerns. (Hughes at 29:14-21; Fay at 11:1225). No reported decision has found standing on facts like these. These are simply not the kind of concrete, actual, particular injuries the cases recognize are required to meet the Plaintiffs' standing burden. Without more than the apparition of injury Plaintiffs presented at trial, they lack standing on Claims 2-14.

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Mootness The Court also should find that the AngloGold Defendants have met their burden of proving that Claims 1 and 3-13 are moot. Elements In order to prevail on their mootness defense, the AngloGold Defendants bear the burden of proving that (1) an event occurred after the claims were filed, and (2) that event makes it absolutely clear that the alleged violation could not reasonably be expected to recur. See Laidlaw, 528 U.S. at 189, citing United States v. Concentrated Phosphate Export Assn., Inc., 393 U.S. 199, 203 (1968); see also Mississippi River Revival v. City of Minneapolis, 319 F.3d 1013, 1016, n.3, 1017 (8th Cir. 2003) (allegations of "discharging without a permit" cannot reasonably be expected to recur once a permit is issued for that discharge). Evidence A. Claims 1 & 3-12

As the AngloGold Defendants argued in their Rule 52 motion, Claims 11 and 12 relate to the 1996 Permit for Arequa Gulch and the Teller County District Court stays of certain limits in that permit. The same is true for Claims 8 and 9. The event that has occurred that makes it absolutely clear that the alleged wrongful behavior asserted in these claims (discharging without a permit and/or violations of the 1996 Permit) could not reasonably be expected to recur is the issuance of the 2002 Permit. When the 2002 Permit became effective on February 1, 2003, the 1996 Permit automatically terminated by operation of law. See, e.g., Mississippi River, 319 F.3d 1013.

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There are two overarching reasons to follow Mississippi River in this case. First, given the WQCD's issuance of the 2002 Permit, this Court does not have to weigh in on matters of state law. The questions of whether the 1996 Permit was or was not

effective and of whether the judicial stay orders were or were not effective are now moot. Both questions relate solely to the 1996 Permit which terminated by operation of law when the 2002 Permit became effective on February 1, 2003. Thus, this Court's decision on these state law questions would be purely advisory and, given the lack of any state law on the issue, one of first impression. Second, if this Court were to address these questions now, there is a risk that the Court's advisory opinion on them could be inconsistent with the WQCD's interpretation of state law. Through its actions, the WQCD has demonstrated its understanding that the 1996 Permit and the judicial stay orders were effective, an interpretation of state law that Plaintiffs are asking this Court to invalidate. This Court should avoid the risk of an inconsistent advisory opinion. See Flast, 392 U.S. at 95. B. Claim 1

Similarly, issuance of the Fourmile Creek Springs Permit moots Claim 1. Even if Plaintiffs were able to prove that the Fourmile Creek Springs constitute a CWA point source discharge, the WQCD's issuance of a permit for those springs makes it absolutely clear that the alleged discharge without a permit could not reasonably be expected to recur. Mississippi River is directly on point because in that case the Court concluded that when, like here, a permit is issued after the citizen suit is filed, the claim of discharging without a permit is moot.

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C.

Claims 3-7 and 9

As discussed in Section E of the Evidence Section below, the AngloGold Defendants believe that, given the prohibition on citizen suits for wholly past violations, Plaintiffs' Amended Complaint is not entitled to relate back to the filing date of the original complaint. Nevertheless, if the Court finds relation back appropriate here,

Claims 3-7 and 9 are moot because CC&V has upgraded its facilities in Arequa Gulch and at the Carlton Tunnel to address another exceptional precipitation event should one occur in the future. As the monitoring data demonstrate, there have been no permit exceedances since these upgraded facilities were put in place. D. Claims 10 and 13

As explained in the Elements Section below, the El Paso case requires Plaintiffs to prove that the Defendants are the owners of the point source from which discharges occur from their land. Even if the "owners" language in El Paso can reasonably be interpreted to extend to the holders of unpatented mining claims, none of the Defendants retains that status any longer with regard to Claim 10 (Roosevelt Tunnel) or Claim 13 (Moffat Tunnel Cribbing Wall). Whatever interest CC&V had to the property upon which the Roosevelt Tunnel portal is located or to the property where the seep at the base of the Moffat Tunnel Cribbing Wall appears, that interest is now terminated. As described by Mr. Bateman, CC&V relinquished its claims in 2001. Thus, CC&V has no property interest in the point source and, as a result, it is absolutely clear that any alleged unpermitted discharge attributable to Defendants could not reasonably be expected to recur.

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As became apparent during the Rule 52 argument, the real question regarding mootness here is whether it applies to the claim or the remedy. Plaintiffs argue that mootness applies separately to each of the remedies requested (e.g., injunction and civil penalties), and cites a number of pre-Laidlaw cases in support of that proposition. Those cases are no longer controlling. To the extent they are inconsistent with Laidlaw, they have been overruled. As explained in Laidlaw, it is the case that is moot if the criteria are satisfied, not simply one of the available remedies. Specifically, the Court stated: Laidlaw also asserts. . . that the closure of its Roebuck facility. . . mooted the case. The facility closure, like Laidlaw's earlier achievement of substantial compliance with its permit requirements, might moot the case,. . . if one or the other of these events made it absolutely clear that Laidlaw's permit violations could not reasonably be expected to recur. Laidlaw, 528 U.S. at 193 (emphasis added). In support of that result, the Court explained that: Under § 1365(a), the district court has discretion to determine which form of relief is best suited, in the particular case, to abate current violations and deter future ones. . . . Denial of injunctive relief does not necessarily mean that the district court has concluded there is no prospect of future violations for civil penalties to deter. City of Mesquite, 455 U.S. at 289 (although the defendant's voluntary cessation of the challenged practice does not moot the case, "such abandonment is an important factor bearing on the question whether a court should exercise its power to enjoin the defendant from renewing the practice"). Id. at 171 (emphasis added). The clear import of this analysis is that if in Mesquite the case had been mooted, the court would have had no authority to impose any remedy. See also City of Erie v. Pap's A.M., 529 U.S. 277, 287 (2000) (when the Laidlaw mootness standard is satisfied, it is impossible for the court to grant any effectual relief).

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The Eighth Circuit confirmed this interpretation of Laidlaw in the context of the CWA. In Mississippi River, 319 F.3d 1013, the CWA violation alleged by the citizen plaintiff was, like Claim 11 here, that the defendants were discharging without a permit. When the permit was issued after the citizen suit complaint was filed, the citizen plaintiffs conceded that the claims for declaratory and injunctive relief were moot, but asserted that the civil penalty claim was not. The court disagreed, holding that all of the requested relief related to the claim of discharging without a permit had been mooted by issuance of the permit. Using the standard announced in Laidlaw, the court concluded that the alleged wrongful behavior ­ discharging without a permit ­ "cannot reasonably be expected to recur" once a permit is issued for that discharge. Mississippi River, 319 F.3d at 1017. The court recognized that the issued permit had an expiration date but "refuse[d] to speculate that [the defendant] will allow the resumption of discharges without a permit." Id. Importantly, the Mississippi River Court concluded that Laidlaw effectively overruled prior lower court cases which had concluded that CWA citizen suit claims for civil penalties were not mooted by defendant's subsequent compliance "by equating citizen suit claims for civil penalties and claims for injunctive relief for mootness purposes." Mississippi River, 319 F.3d at 1016 and n.3. The court also confirmed that the Laidlaw decision rejected the notion that civil penalties attach irrevocably to a violator at the time of the violation. Id. at 1016; but see Ecological Rights Foundation v. Pacific Lumber Co., 230 F.3d 1141, 1153 (9th Cir. 2000); San Francisco Baykeeper, Inc. v. Tosco Corp., Diablo Services, 309 F.3d 1153, 1160 (9th Cir. 2002), cert.

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dismissed, 123 S.Ct. 2296 (2003). (It should be noted, however, that the mootness discussion in Pacific Lumber is dicta because it was a general discussion on an alternative basis for affirming the lower court's decision. According to the court, it was not deciding the mootness issue.) Id. at 1153, 1154. One final note on mootness is appropriate. In their opening statement, Plaintiffs argued that mootness could not be resolved until the remedy phase of the case because the mootness defense "would require this Court to determine whether there was any effectual relief that the Court could grant. . . [but that] the relief aspect of this case,. . . is not before the Court right now." Transcript of Plaintiffs' Opening Statement at 21. This, however, would be fundamentally inconsistent with Article III jurisdiction. Article III, § 2 of the U.S. Constitution limits the judicial power of federal courts to "cases" or "controversies." This requirement prohibits a federal court from rendering advisory opinions, see North Carolina v. Rice, 404 U.S. 244, 246 (1971), and assures that federal courts will not intrude into areas committed to other branches of government. See Flast v. Cohen, 392 U.S. 83, 95 (1968). Because the case-or-

controversy requirement is a constitutional prerequisite to federal court jurisdiction, the Court must determine whether a case is moot before proceeding. See, e.g., Davidson, 236 F.3d at 1181-82. If the question to be adjudicated has been mooted by subsequent events, no justiciable controversy exists and the claims must be dismissed for lack of jurisdiction. See Flast, 392 U.S. at 95; see also Southern Utah Wilderness Alliance v. Smith, 110 F.3d 724, 727 (10th Cir. 1997).

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There is no basis for Plaintiffs' suggestion that mootness determination has to await the remedy phase of this case. AngloGold Ashanti North America, Inc. ("AGANA") As a final preliminary matter, the Court should find Plaintiffs have failed to meet their burden of proving any basis whatsoever for liability on any claim against Defendant AGANA. Plaintiffs offered no evidence that AGANA is a permittee, and no evidence that it operates or acts anywhere at the site. More importantly, they also have presented insufficient evidence that AGANA is liable because it uses any other Defendant as its alter ego. In fact, of the ten factors recognized by the Tenth Circuit (applying Colorado law) to determine whether to pierce the corporate veil, only two apply here: AngloGold Ashanti (Colorado) Corporation is a wholly owned subsidiary of AGANA, and the two share some common officers. See Skidmore v. Canada Life Assur. Co., 907 F.2d 1026, 1027 (10th Cir. 1990). But there is no evidence that any of the other eight factors exists here. Thus, the Plaintiffs simply have not met their burden of establishing that the corporate form should be disregarded and AGANA held liable for any of the claims here. Discharge Without Permit (Claims 1, 10, 11, 13, 14) Even if they had standing and the above claims are not moot, Plaintiffs have not presented a preponderance of evidence that any of the AngloGold Defendants are discharging pollutants into navigable waters without a permit from point sources at

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Roosevelt Tunnel, Moffat Tunnel Cribbing Wall, Squaw Gulch Pond, or Fourmile Creek Springs. Elements In its interlocutory Pretrial Order, the Court concluded that these claims have the following elements: (1) the discharge, (2) of a pollutant, (3) to navigable waters, (4) from any point source, (5) without a permit, and (6) that such discharge was ongoing at the time the Plaintiffs' Complaint was filed. Again, the law defining these elements is instructive. Discharge or add means introducing from the outside world. National Wildlife Federation v. Gorsuch, 693 F.2d 156, 165, 174-83 (D.C. Cir. 1982); Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York, 273 F.3d 481, 491-92 (2nd Cir. 2001). Pumping or conveying water from one water body into another that is not South Florida Water

"meaningfully distinct" does not require a discharge permit.

Management District v. Miccosukee Tribe of Indians, 541 U.S. 95, 112 (2004). The flow of polluted water within a drainage from one segment to the next does not constitute the "discharge of a pollutant." Froebel v. Meyer, 217 F.3d 928, 937-38 (7th Cir. 2000), cert. denied, 531 U.S. 1075 (2001). And the release of polluted water from a storage

reservoir to the receiving water body below does not constitute the "discharge of a pollutant." Gorsuch, 693 F.2d at 175. Pollutant is defined in the CWA to "mean," as opposed to "include," dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water. 17
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See 33 U.S.C. § 1362(6). Water conditions are not pollutants, and given the wording of the statutory definition, the Gorsuch court explained that courts should be "cautious in adding new terms." Gorsuch, 693 F.2d at 171-72. It must also be noted that the CWA separately defines "pollutant" and "pollution." The latter is defined as: the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water. Thus, to the extent the water in a drainage has been altered by man in the past, those alterations would be "pollution" under the CWA, but the altered water is not a "pollutant" and the water flow is not the "discharge of a pollutant" that requires a permit. Finally, a parameter that is listed in EPA's regulations as a "toxic pollutant," like zinc, is only a CWA "pollutant" if it actually meets the statutory definition of a CWA "pollutant." The regulations cannot change the statutory definition of a "pollutant."

Instead, in its regulations EPA simply classifies types of CWA pollutants, with each type being addressed separately in the regulations. Thus, if zinc is in the water naturally and is not a "chemical waste," or one of the other statutorily defined "pollutants," it is neither a "pollutant" nor a "toxic pollutant" under the CWA. It may be "pollution" under the CWA, but not a "pollutant" regulated by the point source discharge permit requirements of the CWA. Navigable waters are addressed in only two U.S. Supreme Court cases. The first was United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985), in which the Court held that there must be a significant nexus between the water body at issue and a navigable-in-fact water body. The second was Solid Waste Agency of Northern Cook County v. Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC), which 18
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according to the dissent drew "a new [CWA] jurisdictional line" from that which had been expressed previously by the lower courts. We recognize that the majority of the

appellate courts have read SWANCC narrowly and limited its reach to the precise holding about isolated wetlands in that case. See U.S. v. Hubenka, No. 05-8006 (10th Cir. 2/21/06). However, the U.S. Supreme Court recently heard oral argument on the CWA navigable waters issue in two cases (one of them ­ Rapanos ­ is a case relied on by Plaintiffs). The AngloGold Defendants submit that the better interpretation of

SWANCC is found in Rice v. Harken Exploration Co., 250 F.3d 264, 268-69 (5th Cir. 2001), a Fifth Circuit case in which the court stated that under SWANCC "it appears that a body of water is subject to regulation under the CWA if the body of water is actually navigable or is adjacent to an open body of navigable water." Given the U.S. Supreme Court cases, and the interpretation addressed in the Rice case, the AngloGold Defendants submit that Plaintiffs must prove that the gulches and creeks in question must either be navigable-in-fact, or they must have a significant nexus to a navigable-in-fact water body. From a point source has been interpreted to mean the terminal end of an artificial system for moving water, waste, or other materials. See Froebel, 217 F.3d at 937-38, citing United States v. Plaza Health Laboratories, 3 F.3d 643, 646 (2nd Cir. 1993). One final comment on the elements is necessary. Defendants do not agree with Plaintiffs that one of the elements of these claims is the owner/operator status, if any, of the AngloGold Defendants. Plaintiffs' argument is not supported by the CWA. The

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"owner or operator" term does not appear in Sections 301 or 402 of the CWA which are at issue in this case. However, the Tenth Circuit has just recently concluded in the El Paso case that "point source owners can be liable under Sections 301(a) and 402 of the CWA for unpermitted discharges that occur from their land." Sierra Club v. El Paso Gold Mines, 421 F.3d 1133, 1146 (10th Cir. 2005) (emphasis added). We do not agree with the Tenth Circuit's analysis because we believe that the court's interpretation ignores the canon of statutory construction that when a term (owner/operator) is used in one section of the statute, Congress must have intended not to use that term in another section where some other term is used (person who discharges). certiorari is pending in that case. Nevertheless, even under the Tenth Circuit's construction, Plaintiffs first have to prove there is a point source discharge. Then, given the Court's narrow holding that "point source owners can be liable under Sections 301(a) and 402 of the CWA for unpermitted discharges that occur from their land," Plaintiffs must prove (a) that the Defendants own that point source, and (b) that CWA discharges from it are occurring from their land. Id. Thus, the El Paso case does not stand for the proposition, for example, that the owner of land within a gulch where water flows or is captured in a stock watering pond must obtain a point source discharge permit. Evidence A. Moffat Tunnel Cribbing Wall (Claim 13) A petition for

The evidence does not connect any of the AngloGold Defendants to the water that is occasionally observed at the base of the Moffat Tunnel Cribbing Wall. Here is

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where the Plaintiffs ­ missing their body of experts ­ have failed to help the Court and failed to meet their burden: they offer water quality data, but there is absolutely no basis in the record from which the Court can understand what that data means and then draw conclusions from it. Moreover, the data itself is limited. For example, without information on the chemical makeup of the rock, and expert testimony about how that rock could affect water quality if any precipitation actually infiltrated all the way through the rock, the Court has no basis in the record for concluding that the rock is adding anything to the natural flow of water. Thus, there is no basis for finding this is a

"discharge," or just the natural flow within the drainage. And, as explained above, water conditions are not pollutants. To the extent the water in the gulch where the Moffat Tunnel Cribbing Wall is located has been altered by man in the past, those alterations would be "pollution" under the CWA, but the altered water is not a "pollutant." Moreover, even if the Plaintiffs had given the Court the expert opinions necessary to find the rock behind the wall adds anything to the natural flow, that flow is not from a point source. As explained in El Paso Gold Mines at 1140-41, it is the dumping of the rock into a water channel that constitutes the discharge from a point source. Once that point source discharge (i.e., the dumping of rock) ceases, all that remains is "the migration, decomposition, or diffusion of the pollutants into a waterway," which does not constitute a point source discharge. Here, the dumping of rock into the channel ceased more than 100 years ago when construction of the Moffat Tunnel was completed. That discharge has ceased. Thus, even if the Plaintiffs had provided evidence that the rock

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wall adds anything to the water, that occurrence is no more than "the migration, decomposition, or diffusion of pollutants into a waterway," which is not a point source discharge. See id. Finally, even if the water flow at the base of the cribbing wall could be characterized as the discharge of a pollutant from a point source, Plaintiffs have not carried their burden of proving that the point source ­ the location where the water emerges at the base of the cribbing wall ­ is owned by any of the AngloGold Defendants or that the discharge is occurring from any of the AngloGold Defendants' land (as required under El Paso). The flow emerges from BLM land, not land owned by any of the AngloGold Defendants. Without any expert testimony about the source of the flow, Plaintiffs have not met their burden of proving that any of that flow comes from any of AngloGold Defendants' land. Without that expert testimony, what is left are these facts: the cribbing wall is far from active mining/the Affected Area of the mine, the two are separated by a natural geologic boundary that prevents flow between the two, and there is no operation of any kind conducted by any AngloGold Defendant near the cribbing wall. B. Squaw Gulch Pond (Claim 14)

Here again the Plaintiffs have failed to provide the evidence necessary for the Court to find that any of the AngloGold Defendants discharge pollution from this pond. General proximity between the pond and the seep downgradient is all the Plaintiffs provide to connect the two. They have left the Court without the expert testimony to actually connect the seep to the pond. The water quality data Plaintiffs likely will try to

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rely on is meaningless without expert explanation of its significance. For example, they have provided the Court with no way to know what it means that two constituent values are different, how much difference is significant, how much similarity is significant, or for which constituents. Without those tools, there is insufficient evidence from which to conclude the seep is actually coming from the pond. And here too, the facts are that no AngloGold Defendant operates in any way at this location, and it is outside the mine's Affected Area. Although Mr. Burm tried to save this claim by saying he saw water flow from the pond embankment, it is remarkable that he never produced a single photograph, sketch, video, map, or field note that showed that flow. But then, specters can be hard to capture: the photo that Dr. Maest claimed depicted that flow shows a nice stand of aspens but no sign of the pond, embankment, or their relationship to the flow. (Exh. 2, photo 0-21). Additionally, Plaintiffs have not proven the seep is the discharge of a pollutant. As explained above, water conditions are not pollutants. To the extent the water emerging as seep flow downgradient of the Squaw Gulch Pond is altered due to the natural makeup of the watershed, or has been altered by man in the past, those alterations would be "pollution" under the CWA, not a "pollutant." Moreover, the simple surface emergence of a spring, or ground water, from an upgradient watershed is not a point source discharge. In the words of the Tenth Circuit, "[g]roundwater seepage that travels through fractured rock would be nonpoint source pollution, which is not subject to NPDES permitting." El Paso Gold Mines, 421 F.3d at

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1141 n.4. And finally, even if the seep is actually coming from the Squaw Gulch Pond, it would not be a CWA point source discharge. The pond is not a process or waste water impoundment. Nor has it ever been used for water treatment. It is a simple stock watering pond. (See Exh. 530). As such, it does not introduce anything to Squaw Gulch "from the outside world." There is a long line of cases beginning with Gorsuch and Consumers Power holding that flows from ponds and reservoirs like the Squaw Gulch Pond into the drainage below do not need a NPDES permit. The U.S. Supreme Court has recently broadened that ruling of law to include the actual pumping of water from one water body to another that is not meaningfully distinct. See Micosukee Tribe of Indians of Florida v. South Florida Water Management District, 541 U.S. 95, 112 (2004). Even if the seep is actually coming from the pond, the water body to which the seep goes ­ Squaw Gulch ­ is not meaningfully distinct from the very same Squaw Gulch in which the Squaw Gulch Pond is located. C. Roosevelt Tunnel (Claim 10) unexplained water quality data, untested and

This tunnel is full of ghosts:

conflicting observations about flow (e.g., Mr. Klco's testimony that flow is continuous and his contemporaneous field notes that it is not) (Exh. 130), and maps showing surface interests but no connection between the tunnel and the AngloGold Defendants' property. Here, too, without evidence of the physical and chemical makeup of the rock surrounding the tunnel, actual measurements of flow and water quality at each of the seeps contributing water flow to the tunnel, a correlation of those water flows to lands

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the AngloGold Defendants own, and expert testimony explaining what all these variables mean about the portal water's source, the Plaintiffs have not met their burden of proving where the water at the portal is actually coming from. Yet, this is precisely the connection that the Tenth Circuit said was required in the El Paso case from the same plaintiffs for the same tunnel but against a different defendant: to the extent that any of the AngloGold Defendants are adding any pollutants to the Roosevelt Tunnel, "Plaintiffs have the burden of establishing that pollutants. . . actually make their way to the Roosevelt Tunnel portal where they are then discharged into navigable waters." El Paso Gold Mines, 421 F.3d at 1146. Without such proof, Plaintiffs have failed to show the AngloGold Defendants are discharging pollutants from the Roosevelt Tunnel. In addition, Plaintiffs have not proven (as required by El Paso) that the AngloGold Defendants own the point source here. Instead, the evidence is that for several years they held an unpatented lode claim in the area of the portal, but that they relinquished that claim in 2001. (Bateman 2/22/06 at 3:11-4:8). The AngloGold Defendants have found no case extending "owners" to include holders of unpatented lode claims. And like the above locations, there is no evidence whatsoever that any AngloGold Defendant operates within the tunnel or at its portal, which is miles from the Affected Area. D. Fourmile Creek Springs (Claim 1)

During the November 2005 Pretrial Conference, Plaintiffs made it clear that Claim 1 was limited to the alleged water coming from the Carlton Tunnel Ponds. They were not separately alleging that the springs were coming from the rock fill area itself.

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Nevertheless, even if Plaintiffs now argue that the springs are coming from the rock fill, they have offered no evidence to connect the quality and quantity of the Fourmile Creek Springs to the rock fill. There is no evidence of the hydrology within the rock fill or the chemical makeup of the rock. Nor did Plaintiffs meet their burden of connecting the Carlton Tunnel Ponds to the Fourmile Creek Springs. All they offered were two things: the fact that the ponds are close to the springs, and the statement by Mr. Myers that the ponds "leak like a sieve." As Mr. Myers explained, however, the ponds did not appear to be contributing to the springs until January 1996 when a fifth pond was added and the four existing ponds were scraped out. (Myers 2/16/06 at 12:13-18). That work did create increased spring flow temporarily. But in March 1996 bentonite was added to stop the "sieve effect" created by the 1996 construction activities. (Id. at 18:7-19:7). And, after the bentonite was added, the spring flows returned to the baseline condition of limited spring flow. (Id.). Significantly, every single witness to this spring flow confirmed that nowhere in its path does it leave any of the distinctive orange trace that the pond water does. In other words, contrary to Plaintiffs' arguments, the evidence appears to indicate that the springs have not come from the ponds since several months after the 1996 construction activities. The water quality data appears to support this point. Exh. 565 shows that 18 of the parameters are different and five are different by orders of magnitude. For example, the pond water has .58 mg/l of aluminum, while the concentration of aluminum in the

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springs is .0058. More to the point, however, Plaintiffs have not given the Court the tools necessary to determine what this superficial comparison of parameters means. That degree of difference appears to indicate the water is from different sources, but there certainly is no evidence that explains how such water quality data indicates the source is the same. These glaring omissions of expert testimony cannot now be

remedied by Plaintiffs' counsel's arguments about the data's meaning. Instead of expert assistance, the Plaintiffs offer the factual observations of witnesses like Dr. Maest, who insisted the springs came "cascading" "from" the waste rock, "halfway up the hillside." But ghosts again proved hard to record, even with the "eyeball method." She offered no sketch, no map, no test, no measurement, no field note, no photograph. In fact, the photograph she used as an example showed none of the white discoloration she claimed was there, and depicted water that was something less than "cascading." (Exh. 2, photo 17HH; Maest Cross at 10:1-11:3). On these facts, Plaintiffs have not shown the AngloGold Defendants are discharging from a point source. The simple surface emergence of a spring, or ground water, from an upgradient watershed is not a point source discharge regulated by the NPDES permit provisions of the CWA. As the Tenth Circuit stated in El Paso Gold Mines, 421 F.3d at 1141 n.4, "[g]roundwater seepage that travels through fractured rock would be nonpoint source pollution, which is not subject to NPDES permitting." Similarly, whatever flow is coming from the rock is migration, decomposition, or diffusion from rocks placed there decades ago by someone other than the AngloGold Defendants.

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Without more proof than "the ponds leaked ten years ago and they are uphill of the springs," the Plaintiffs simply have not met their burden to show this is a point source discharge ­ and not just natural, baseline flow that travels through fractured rock. E. Arequa Gulch (Claim 11)

This "discharge without a permit" claim is different from the others. Here, the dispute is whether CC&V had a permit. In other words, was the 1996 Cresson Project Permit CC&V operated under actually effective, or did its administrative appeal of that permit somehow render it void? As discussed above, this claim was mooted by the unchallenged issuance of the 2002 Permit, so there is no need for the Court to explore this untested domain of Colorado state law. If it chooses to do so, however, the dispositive and undisputed facts that show CC&V did have an effective 1996 Permit are as follows: · The WQCD prepared preprinted DMRs for the 1996 Permit as if that permit was effective, and CC&V as the permittee submitted completed DMRs under the 1996 Permit as if that permit was effective. · The sections of the DMRs for the 1996 Permit specifying the permit limits that were preprinted by the WQCD incorporate the terms and conditions of the judicial stay orders entered by the Teller County District Court. · The WQCD conducted site inspections at the Cresson Project specific to the 1996 Permit as if that permit was effective, and issued inspection reports noting CC&V's compliance with the 1996 Permit.

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·

The "Performance History" section of the WQCD's Rationale for the 2002 Permit is based on an effective 1996 Permit with permit limits that reflect that judicial stay orders entered by the Teller County District Court.

·

The allegations in the EPA Consent Agreement and the CDPHE Consent Order are based on an effective 1996 Permit with permit limits that reflect the judicial stay orders entered by the Teller County District Court. "Ongoing" Violation of Permit Claims (Nos. 2-9 and 12)

These claims conjure ghosts that appeared fleetingly, seven to eleven years ago, never in any repeating pattern, never seen again at the same time or in the same form, gone without a trace, and never "ongoing" as of November 27, 2000 (let alone May 2002 when the Amended Complaint was filed). Again, some background on the legal elements is helpful. Elements (1) There is a CWA "discharge" requiring a CWA permit (e.g., discharge of a

pollutant to navigable waters from a point source); (2) (3) (4) A state permit was issued to the Defendants; With an effluent limit for the particular parameter in question; and There was an ongoing violation of the effective limit for that parameter at

the time the Complaint or Amended Complaint was filed. CWA "discharge" requiring a CWA permit. CWA citizen suits are limited to ongoing violations of the CWA or a permit issued pursuant to the CWA. If a permit is required under the CWA but is issued by a state with delegated authority, all of the

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terms and conditions in the state-issued permit must be complied with even if they are more stringent than required under the CWA. See Parker, 386 F.3d at 1105-07 and n. 15. However, if the permit is issued only because state law requires such a permit (e.g., a permit for discharges to non-navigable waters), the permit is not a permit issued pursuant to the CWA and, therefore, there is no jurisdiction for CWA citizen suits. Because neither Arequa Gulch nor Fourmile Creek is a "navigable water," any discharges to them do not qualify as CWA "discharges" requiring CWA permits. The cases Plaintiffs refer to do not support a contrary result. For example, in Northwest Environmental Advocates v. Portland, 56 F.3d 979 (9th Cir. 1995), the discharges were to the Columbia River near Portland Oregon, a river that is obviously navigable. See also Parker, 386 F.3d at 993 (after explaining that the "effluent

limitations" in the CWA apply to state issued NPDES permit conditions, the court went on to evaluate if there was an actual discharge to navigable waters which would have required a CWA NPDES permit); Environmental Protection Agency v. California, 426 U.S. 200 (1976) (Court merely stating that conditions imposed in accordance with EPA promulgated effluent limits and standards and those imposed in accordance with more stringent standards and limitations established by the State were fair game for CWA citizen suits. The case does not stand for the proposition that if the discharge does not qualify as a NPDES point source discharge there is CWA citizen suit jurisdiction). Ongoing Violation. Ongoing violation may be proven either (1) by proving

violations that continue on or after the date the complaint is filed, or (2) by adducing evidence from which a reasonable trier of fact could find a continuing likelihood of a

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recurrence in intermittent or sporadic violations. As the Court noted during trial, to evaluate these issues it looks to consistency, continuity, or similarity of violations as reflected by evidence of the nature of the violation, its scope and extent, its frequency, its constancy, and its degree. (Lewis 2/15/06 at 154:9-23). Further, this "ongoing violation" test is applied on a parameter-by-parameter basis. See Gwaltney, 890 F.2d at 697-98. Finally, the AngloGold Defendants submit that Plaintiffs have to prove that the permit violations were ongoing at the time they filed their Amended Complaint (i.e., May 6, 2002). Given the unique nature of citizen suits, "relation back" to the original

complaint filing date is not appropriate. The critical difference between CWA citizen suits and other legal actions is that CWA jurisdiction is predicated on an "ongoing" violation at the time the claim is filed. Timing is critical because citizen plaintiffs cannot sue for wholly past violations. Gwaltney, 484 U.S. at 64. As a result, when Plaintiffs claimed there was an ongoing violation on May 6, 2002, that claim was an altogether different claim than their earlier claim that there was an ongoing violation on November 27, 2000. The operative facts for their May 6, 2002 claim had to be occurring on May 6, 2002 for the Court to have jurisdiction of it. Thus, the amendment cannot relate back because it arises out of a new set of conduct and occurrences: violations that were alleged to be ongoing at May 6, 2002. See Stroh Die Casting, 116 F.3d at 820-21 (when a complaint is amended, the violations must be ongoing on the date of the amended complaint).

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The cases Plaintiffs rely on for their relation back argument are not on point. For example, in Atlantic States v. Tyson Foods, 897 F.2d 1128 (11th Cir. 1990), the violations of the permit continued after the Amended Complaint was filed, and there were actual "ongoing" violations at the time the Amended Complaint was filed. As such, there was no question that CWA jurisdiction existed on the date of the Amended Complaint. See also Gilles, 906 F.2d 1386 (10th Cir 1990) (restating Rule 15, and referring to negligent care that occurred in the past); Kaup v. First Sank Sys., Inc., 926 F. Supp. 155 (D. Colo. 1996) (relation back appropriate because the new claim stemmed from the same conduct in the past). Finally, there is no support for Plaintiffs' apparent assertion that one of the elements of their "ongoing" claims is owner/operator status. There is no reported case that addresses owner/operator liability in the context of permit violations. The El Paso case addressed owner/operator status only in the context of an alleged unpermitted discharge. Further, the case law makes it clear that it is the holder of the permit that is subject to an enforcement action for failure to comply with the conditions of the permit. See Gwaltney, 484 U.S. at 52-53; see also Public Interest Research Group of New Jersey, Inc. v. Hercules, Inc., 50 F.3d 1239, 1242 (3rd Cir. 1995) (the CWA provides that private citizens may commence civil actions in certain situations against a permit holder who fails to comply with the CWA); Sierra Club v. Electronic Controls Design, Inc., 909 F.2d 1350, 1352 n.1 (9th Cir. 1990) (the holder of a state NPDES permit is subject to federal, state, and citizen enforcement action for failure to comply); Sierra Club v. Simkins Industries, Inc., 847 F.2d 1109, 1111 (4th Cir. 1988) (a violation of a

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NPDES permit, whether issued by state or federal officials, is a violation of the CWA exposing the permit holder to liability under the citizen suit provisions of the CWA). Evidence First, for the reasons set forth above, Plaintiffs have not met their burden to show Fourmile Creek and Arequa Gulch are "navigable waters;" therefore, the two permits at issue remain state-issued permits. violations of CWA permits. Second, CC&V is the only permittee here. (See Exh. 237.) Even if there were ongoing violations of the two permits, there is no basis for holding either of the other two AngloGold Defendants liable. Third, and most importantly, the Plaintiffs have not met their burden of showing the exceedances were "ongoing": Claim 2 ­ Exh. 702 · The Carlton Tunnel Permit flow limit was exceeded only six of the last 124 months reported. The last exceedance was almost seven years ago Accordingly, Plaintiffs have not proven ongoing

(June 1999), and it was just barely over the permit limit. The five before that too were slight, and all were in the fall and winter of 1995-1996, more than ten years ago. For ten years the flow has been consistently under the permit limit. (Lewis 2/16/06 at 164:14-166:14). · There is no pattern of repetition (seasonal or otherwise) to these slight, remote exceedances.

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·

The State determined that the sole exceedance in over ten years was the result of an extraordinary precipitation event. (Exh. 546). (Lewis 2/16/06 at 166:15-168:5).

Claim 3 ­ Exh. 706 · The Carlton Tunnel Permit 30-day average TSS limit was last exceeded ten years ago (March 1996) and only exceeded three times in the 124month reporting history of that Permit. All three exceedances were less than ten mg/l over the Permit's 30-mg/l limit. All three occurred in the time frame of the pond scraping and construction work described above. Since then, TSS has been consistently below the permit limit by approximately 20 mg/l (or two-thirds) on average for ten years. Even during the heavy rains in 1999, there was nothing even close to an exceedance of this limit. There is no pattern of exceedance here. Claim 4 ­ Exh. 707 · The Carlton Tunnel Permit limit for seven-day average TSS flow was exceeded twice in the Permit's history, and the most recent was nine years and ten months ago. That exceedance was a fraction over the Permit limit. In the almost ten years since, there has been a consistent pattern of compliance at about thirty to thirty-five mg/l below the 45-mg/l Permit limit. Even the heavy precipitation of 1999 never brought the TSS within 15 mg/l of this limit. There is a pattern of constant compliance, and no indication of ongoing exceedance.

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Claim 5 ­ Exh. 703 · The Carlton Tunnel Permit 30-day average zinc limit was exceeded only twice in 124 reporting months: once in August 1998, and once in June 1999. In other words, the last exceedance was almost seven years ago, 17 months before the Complaint was filed, and about three years before the Amended Complaint was filed. Even when the ponds were stirred up by the baffle system installation, CC&V did not exceed this limit. Other than during that installation, the 30-day zinc average has been well below the Permit limit since the heavy rains of the summer of 1999. · The last exceedance here was slight, almost seven years old, and declared by the State to be the result of that heavy precipitation. Since then CC&V installed the baffle system, and the zinc declined even farther below the Permit limit. The only pattern here has been compliance. Claim 6 ­ Exh. 704 · The other zinc limit in the Carlton Tunnel Permit (Daily Maximum) reveals the same pattern of compliance: - - - - - three total exceedances, the last in June 1999; all three were slight; none has occurred in almost seven years; the last two occurred during the heavy precipitation of 1999; even the baffle installation did not cause another exceedance;

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-

since then the zinc has been even farther below the Permit Limit; and

-

no pattern of zinc exceedance, seasonal or otherwise, has ever manifested itself.

Claim 9 ­ Exh. 701 · There were five exceedances of the Arequa Gulch 1996 Permit cyanide limit ­ all between September 1998 and August 1999, and four of the five were during the "upset" period of precipitation identified by the State. (Exh. 546.) None has occurred since, and no seasonal or other pattern of exceedance has ever emerged. Since the last exceedance in 1999 and before the Amended Complaint was filed in May 2002, CC&V activated its temporary pumpback system and installed baffles in the sediment pond in Arequa Gulch. Since then there has rarely even been water flow there, let alone a cyanide level anywhere close to the Permit limit. (Lewis 2/16/06 at 90:24-91:6). Claim 7 ­ Exh. 705 · There has never been a confirmed WET test failure. In the ten years of quarterly sampling since 1996, there have been only five initial failures of the WET testing criteria. In each of those instances, CC&V performed additional testing as required by the Carlton Tunnel Permit to verify the validity of the initial WET test. All of those verification tests passed the

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WET test criteria; none of the initial WET test failures were ever confirmed. · The only pattern that emerges here is that there has never been a confirmed failure. There is no seasonal pattern, no quarterly pattern, no pattern tied to events, no equal intervals between initial failures. A comment or two is appropriate here about WET. As the Court heard from Mr. Lewis, WET testing is different than the typical testing for parameters like metals, pH, and cyanide. It relies on the health of a particular organism which, as with all organisms begs the question of whether the test species was sick to begin with and would have died regardless of the water quality. At least one court has acknowledged these

inherent uncertainties. In Edison Electric Institute v. Environmental Protection Agency, 391 F.3d 1267, 1272 (D.C. Cir. 2004) the D.C. Circuit explained that: It is worth pausing here before we examine petitioners' other attacks on the WET test methods. There is an important distinction between the validity of a test method and the validity of a particular result from the test when it is used to determine compliance with permit conditions. Even by EPA's calculations, WET tests will be wrong some of the time, which is why EPA warned against using a single test result to institute an action for a civil penalty. See 67 Fed. Reg. at 69,968. Nothing we have written thus far, and nothing we write in the balance of this opinion forecloses consideration of the validity of a particular test result in an enforcement action. See 33 U.S.C. § 1369(b)(2). That issue is not before the Court; the case involves only the validity of the WET test methods. Exhibit 593 in this case is a copy of the EPA memo that further explains the enforcement policy.

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The last confirmed exceedance of a limit in either permit occurred over a year before Plaintiffs filed their original Complaint on November 27, 2000, and almost 3 years before Plaintiffs filed their Amended complaint on May 6, 2002. Prior to Plaintiffs'

action, the state permitting agency had already investigated those exceedances and had determined that they were caused by an exceptional upset condition. (See Exh. 546). There have been no exceedances of any permit limit for over 6 years. On these facts, Plaintiffs are unable to satisfy the first prong of the "ongoing" test ­ there have been no confirmed post-Complaint (either original or amended) violations. And no court has ever held that permit violations are ongoing for WET on the basis of initial WET test failures that have never been confirmed. As for the second prong, Plaintiffs' sole argument is the general possibility that another exceptional upset event may occur in the future and when that exceptional event occurs, there may be another exceedance. The problem with this argument is twofold. First, no court has found an "ongoing violation" based on the possibility that an exceedance may occur if an upset condition or exceptional event recurs in the future. These exceptional events are simply not the kind of "intermittent or sporadic" violations that the courts are talking about. And second, Plaintiffs have not offered any expert testimony that would enable a reasonable trier of fact to conclude that the facilities now in place are not capable of handling an exceptional event that might occur in the future. This is not a case of CC&V having a "good or lucky day" when Plaintiffs filed their claim. This is also not a case where there was a long history of repeated violations

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before the complaint was filed, let alone after.

There is, instead, a long history of

compliance which distinguishes these facts from all of the "ongoing violation" cases: Ongoing Violation Case Comparison Case Allen County Citizens for the Env't v. BP Oil Co., 762 F. Supp. 733 (N.D. Oh. 1991), aff'd, 996 F.2d 1451 (6th Cir. 1992) (unpublished). Russian River Watershed Prot. Comm. v. City of Santa Rosa, 142 F.3d 1136 (9th Cir. 1998). Frilling v. Honda of Am. Mfg., Inc., 101 F. Supp. 2d 841 (S.D. Oh. 1998) Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield, Ltd., 890 F.2d 690 (4th Cir. 1989) Violati