Free Trial Brief - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Case No. 00-CV-2325-MSK-OES SIERRA CLUB and MINERAL POLICY CENTER, Plaintiffs, vs. CRIPPLE CREEK AND VICTOR GOLD MINING COMPANY, ANGLOGOLD ASHANTI (COLORADO) CORP. ANGLOGOLD ASHANTI NORTH AMERICA INC. and GOLDEN CYCLE GOLD CORPORATION Defendants. and Civil Action No. 01-CV-2307-MSK-OES SIERRA CLUB and MINERAL POLICY CENTER, Plaintiffs, vs. CRIPPLE CREEK AND VICTOR GOLD MINING COMPANY, et al., ANGLOGOLD ASHANTI (COLORADO) CORP. ANGLOGOLD ASHANTI NORTH AMERICA INC. and GOLDEN CYCLE GOLD CORPORATION Defendants.

PLAINTIFFS' TRIAL BRIEF

Plaintiffs submit this Trial Brief outlining legal authority addressing disputed legal issues expected to arise during the bench trial scheduled to commence on February 13, 2005.

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I. A.

LEGAL AUTHORITY RELATED TO STANDING

There is no legal support for Defendants' argument that Plaintiffs must prove as

an element of standing that they "followed [their] organizational requirements to authorize either of these lawsuits before filing them". See, tendered Pretrial Order, p. 7. See also, Order

Regarding Motions for Summary Judgment [# 220] dated March 18, 2005, p. 13, fn. 7. II. A. 1. a. GENERAL LEGAL AUTHORITY RELATED TO CWA LIABILITY LEGAL AUTHORITY ON DISCHARGE OF POLLUTANT STATUTORY AUTHORITY 33 U.S.C. §1362(12) (the term `discharge of pollutant'...means (A) any addition

of any pollutant to navigable waters from any point source...."). 2. a. REGULATORY AUTHORITY 40 C.F.R. § 122.2 (definition of "discharge of pollutant means...additions of

pollutants into waters of the United States from: surface runoff which is collected or channeled by man...."). 3. a. b. c. CASE LAW United States v. Earth Sciences, Inc., 599 F.2d 368, 374 (10th Cir. 1979). Sierra Club v. Abston Construction Co., Inc., 620 F.2d 41, 44-46 (5th Cir. 1980). Committee to Save Mokelumne River v. East Bay Utility District, 13 F.3d 305,

308-309 (9th Cir. 1993). ("The Act does not impose liability only where a point source discharge creates a net increase in the level of pollution. Rather, the Act categorically prohibits any discharge of a pollutant from a point source without a permit...[t]hus, the factual issue raised by defendants concerning historical level of pollution compared to the current level of pollution is 2

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not material to the resolution of the...claim and therefore does not preclude summary judgment on the issue of liability." Id. at 308-309). d. Washington Wilderness Coalition v. Hecla Mining Co., 870 F.Supp. 983, 987-989

(E.D. Wash. 1994). e. Sierra Club, et al. v. El Paso Gold Mines, Inc., 421 F.3d 1133, 1141-1146 (10th

Cir. 2005). ("addition can only mean that we look to whether the point source is actively adding pollutants to navigable waters." Id. at 1145 (emphasis added)). f. Beartooth Alliance v. Crown Butte Mines, 904 F.Supp. 1168, 1172-1173 (D.Mt.

1995). ("any reliance on historical pollution to evade current liability misapprehends the focus of the CWA." Id. at 1173). g. U.S. v. Law, 979 F.2d 977, 979 (4th Cir. 1992)("The origin of pollutants in the

treatment and collection ponds is therefore irrelevant. The proper focus is upon the discharge from the ponds...."). h. Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York, 273 F.3d

481, 489-494 (2nd Cir. 2001). ("When the water and the suspended sediment therein passes from the Tunnel into the Creek, an `addition' of a `pollutant' from a `point source' has been made to a `navigable water', and the terms of the statute are satisfied." Id. at 492). i. South Florida Water Management District v. Miccosukee Tribe of Indians, 541

U.S. 95, 104-105, 124 S.Ct. 1537, 1542-1543 (2004)("a point source need not be the original source of the pollutant, it need only convey the pollutant to `navigable waters,' which are, in turn, defined as `the waters of the United States'...[t]hat definition includes within its reach point sources that do not themselves generate pollutants." 541 U.S. at 105, 124 S.Ct. at 1543). 3

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j.

In The Matter Of General Motors Corporation, Cpc-Pontiac Fiero Plant, 1996

WL 455556 (E.P.A.) at 12-16 (Section IV. of the Ruling), E.P.A Office of the Administrator, Docket No. CWA-A-O-011-93, (June 28, 1996) (attached as Exhibit 2 to Plaintiffs' Brief Identifying Legal Authority Supporting Elements of Liability [#226] dated April 8, 2005). ("The significant ingredient in these cases--that the pollutants were first introduced into the navigable water by the respondent's discharge, regardless of how the pollutants got into the discharge--was present in J & L Specialty. Thus, contrary to Respondent's challenge, the Board's decision in J & L Specialty represents not a departure from, but rather a sound application of the past judicial cases. For the instant case, J & L Specialty supplies the controlling precedent. The instant case, like J & L Specialty, lacks any common navigable water from which Respondent's water is obtained initially and discharged into eventually. And, as in J & L Specialty, it was Respondent's discharge that for the first time introduced the three metals contained therein into navigable waters. Consequently, it is ruled that Respondent's discharge containing copper, lead, and zinc did constitute the `addition' of these pollutants to navigable waters." Id. at 16). B. 1. a. b. 2. a. b. c. LEGAL AUTHORITY POLLUTANTS STATUTORY AUTHORITY 33 U.S.C. § 1362(6) (definition of "pollutant"). 33 U.S.C. § 1362(13) (definition of "toxic pollutant"). REGULATORY AUTHORITY 40 C.F.R. § 122.2 (definition of "pollutant"). 40 C.R.R. § 122.2 (definition of "toxic pollutant"). 40 C.F.R. § 401.15 (list of Toxic Pollutants, #65 "zinc and compounds"). 4

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d. #3 "pH"). 3. a.

40 C.F.R. § 401.16 (list of Conventional Pollutants, #2 "total suspended solids",

CASE LAW Committee to Save Mokelumne River v. East Bay Utility District, 13 F.3d 305,

308-309 (9th Cir. 1993). ("acid mine drainage is a pollutant...." Id. at 308). b. Beartooth Alliance v. Crown Butte Mines, 904 F.Supp. 1168, 1172-1173 (D.Mt.

1995). ("This Court finds that acid mine drainage, which contains high concentrations of aluminum, cadmium, copper, zinc, iron, and sulfuric acid, is a pollutant within the CWA." Id. at 1173). c. In The Matter Of General Motors Corporation, Cpc-Pontiac Fiero Plant, 1996

WL 455556 (E.P.A.) at 4-11 (Section III. of the Ruling), E.P.A Office of the Administrator, Docket No. CWA-A-O-011-93, (June 28, 1996) (attached as Exhibit 2 to Plaintiffs' Brief Identifying Legal Authority Supporting Elements of Liability [#226] dated April 8, 2005). ("The [Clean Water] Act establishes generally that copper, lead, and zinc are `pollutants' within the meaning of the Act...." Id. at 7). C. 1. a. 2. a. 3. LEGAL AUTHORITY POINT SOURCE STATUTORY AUTHORITY 33 U.S.C. §1362(14) (definition of "point source"). REGULATORY AUTHORITY 40 C.F.R. § 122.2 (definition of "point source"). CASE LAW

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a.

United States v. Earth Sciences, Inc., 599 F.2d 368, 374 (10th Cir. 1979)("whether

from a fissure in the dirt berm or overflow of a wall, the escape of liquid from the confined system is from a point source. Although the source of the excess liquid is rainfall or snow melt, this is not the kind of general runoff considered to be from nonpoint sources under the [Clean Water Act]."). b. Sierra Club v. Abston Construction Co., Inc., 620 F.2d 41, 43-47 (5th Cir. 1980).

("surface runoff from rainfall, when collected or channeled by...miners in connection with mining activity, constitutes point source pollution." Id. at 47). c. Washington Wilderness Coalition v. Hecla Mining Co., 870 F.Supp. 983, 987-

989 (E.D. Wash. 1994). ("Thus, even though runoff may be caused by rainfall or snow melt percolating through a pond or refuse pile, the discharge is from a point source because the pond or pile acts to collect and channel contaminated water." Id. at 988; "In a letter from EPA region VIII, `point source' is defined to include `any seeps coming from identifiable sources of pollution (i.e., mine workings, land application sites, ponds, pits, etc.)." Id.). d. South Florida Water Management District v. Miccosukee Tribe of Indians, 541

U.S. 95, 105, 124 S.Ct. 1537, 1543 (2004) ("a point source need not be the original source of the pollutant, it need only convey the pollutant to `navigable waters,' which are, in turn, defined as `the waters of the United States'...[t]hat definition includes within its reach point sources that do not themselves generate pollutants."). e. American Mining Congress v. U.S. EPA, 965 F.2d 759, 767 (9th Cir. 1992)("All

point sources that discharge pollutants, including point sources that discharge pollutants from inactive mines, require a permit."). 6

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D. 1. a.

LEGAL AUTHORITY ON NAVIGABLE WATER STATUTORY AUTHORITY 33 U.S.C. §1362(7) (definition of "`navigable waters' means the waters of the

United States...."). 2. a. REGULATORY AUTHORITY 40 C.F.R. § 122.2 (definition of "waters of the United States or waters of the U.S.

means: ...(c) All other waters such as intrastate lakes, rivers, streams (including intermittent streams)...(e) Tributaries of waters identified in paragraph (a) through (d) of this definition...."). 3. a. CASE LAW United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 132-139 , 106

S.Ct. 455, 462-465 (1985). ("Congress chose to define the waters covered by the Act broadly. Although the Act prohibits discharges into `navigable waters,' ... the Act's definition of `navigable waters' as `the waters of the United States' makes it clear that the term `navigable' as used in the Act is of limited import." 474 U.S. at 133, 106 S.Ct. at 462). b. Quivera Mining Co. v. E.P.A., 765 F.2d 126, 129-130 (10th Cir. 1985)("Congress

intended to regulate discharges made into every creek, stream, river, or body of water that in any way may affect interstate commerce." Id. at 129 (quoting United States v. Earth Sciences, Inc., 599 F.2d 368, 375 (10th Cir. 1979)). c. United States v. Earth Sciences, Inc., 599 F.2d 368, 374-375 (10th Cir. 1979).

("the FWPCA navigable waters definition extended to waters nonnavigable in the traditional sense, and that definition was within Congress' constitutional powers under the commerce clause." Id. at 375). 7

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d.

Beartooth Alliance v. Crown Butte Mines, 904 F.Supp. 1168, 1173 (D. Mont.

1995)("[t]he term has been interpreted to include virtually any surface waters, navigable or not."). e. f. g. Treacy v. Newdunn Associates, 344 F.3d 407, 414-417 (4th Cir. 2003). U.S. v. Rapanos, 339 F.3d 447, 450-454 (6th Cir. 2003). U.S. v. Rapanos, 376 F.3d 629, 635-640 (6th Cir. 2004). ("It is well-settled that the

CWA covers more than what has come to be known as `navigable in fact waters,' i.e., waters that can be navigated in the traditional sense." Id. at 635). E. 1. a. LEGAL AUTHORITY ON ONGOING VIOLATION UNDER THE CWA STATUTORY AUTHORITY Federal Rule of Civil Procedure 15(c)(2) ("an amendment of a pleading relates

back to the date of the original pleading when...(2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading...."). 2. a. CASE LAW Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, 484 U.S. 49, 56-70,

108 S.Ct. 376, 381-388 (1987)("a good or lucky day is not a state of compliance. Nor is the dubious state in which a past effluent problem is not recurring at the moment but the cause of the problem has not been completely and clearly eradicated... it does not suffice to defeat subjectmatter jurisdiction that the success of the attempted remedies becomes clear months or even weeks after the suit is filed." 484 U.S. at 69, 108 S.Ct. at 387 (Scalia, J., concurring, joined by O'Connor, J. and Stevens, J.). 8

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b.

Chesapeake Bay Foundation v. Gwaltney of Smithfield, 844 F.2d 170, 170-172

(4th Cir. 1988). ("Citizen-plaintiffs may accomplish [proof of an ongoing violation] 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 recurrence in intermittent or sporadic violations. Intermittent or sporadic violations do not cease to be ongoing until the date when there is no real likelihood of repetition." Finally, the defendant must take "remedial actions" to "completely eradicate" the violations before the citizen suit was filed. Id. at 171-172). c. Chesapeake Bay Foundation, Inc. v. Gwaltney, 688 F.Supp. 1078, 1080 (E.D. Va.

1988), reversed on other grounds, Chesapeake Bay Foundation, Inc. v. Gwaltney of Smithfield, Ltd., 890 F.2d 690 (4th Cir. 1989) (on remand to the district court, the Gwaltney trial court found that ongoing violations existed despite the seasonal and intermittent nature of the violations (most violations occurred in winter)). d. Chesapeake Bay Foundation v. Gwaltney of Smithfield, 890 F.2d 690, 693-695

(4th Cir. 1989)(upholding the trial court's finding of ongoing violations for seasonal events and concluding that "the proper point from which to assess the likelihood of continuing violations is not the present, with its advantage of hindsight, but at the time of the original suit." Id. at 693694). e. Atlantic States Legal Foundation v. Tyson Foods, 897 F.2d 1128, 1133-1137 (11th

Cir. 1990). ("for purposes of assessing a plaintiff's allegations of ongoing violations, the court must always look to the date the complaint was filed" Id. at 1134).

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f.

Gilles v. United States, 906 F.2d 1386, 1389-1390 (10th Cir. 1990) ("The [original

and amended] complaints are grounded on the same nucleus of operative facts, and thus, within the meaning of Rule 15(c), the claim asserted in the amended complaint arose out of the same `conduct, transaction, or occurrence ...' This being the case, Rule 15(c) provides that the amendment `relates back to the date of the original pleading.'" Id. at 1390). g. h. Kaup v. First Bank System, Inc., 926 F.Supp. 155, 157-159 (D.Colo. 1996). Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133, 1139-1141 (10th Cir.

2005) (finding an "ongoing violation" where "here we have a man-made point source that delivers pollutants and continues to discharge them...." Id. at 1141). F. 1. a. b. c. 2. a. LEGAL AUTHORITY ON OWNERS AND OPERATORS UNDER CWA STATUTORY AUTHORITY 33 U.S.C. § 1311(e). 33 U.S.C. § 1311(g)(2). 33 U.S.C. § 1318(a). REGULATORY AUTHORITY 40 C.F.R. § 122.2 (definition of "owner or operator" means "the owner or

operator of any facility or activity subject to regulation under the NPDES program."). b. 40 C.F.R. § 122.2 (definition of "facility or activity means any NPDES point

source or any other facility or activity (including land or appurtenances thereto) that is subject to regulation under the NPDES program."). 3. CASE LAW

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a.

Committee to Save Mokelumne River v. East Bay Utility District, 13 F.3d 305,

306 (9th Cir. 1993) ("defendants owned and operated the Penn Mine facility...."). b. Sierra Club v. Abston Construction Co., Inc., 620 F.2d 41, 45 (5th Cir.

1980)("[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."). c. United States v. Earth Sciences, Inc., 599 F.2d 368, 374 (10th Cir. 1979)("the

regulatory provisions of the [Clean Water Act] were written without regard to intentionality, however, making the person responsible for the discharge of any pollutant strictly liable."). d. Beartooth Alliance v. Crown Butte Mines, 904 F.Supp. 1168, 1175 (D.Mont.

1995)("The CWA defines `owner or operator' as `any person owning or operating' a facility."). e. American Mining Congress v. U.S. EPA, 965 F.2d 759, 770 (9th Cir. 1992)("The

rule may frustrate the economic expectations of some inactive mine owners, who may need to install some treatment systems or implement storm water management practices in order to comply with the permit requirements."). f. g. U.S. v. Law, 979 F.2d 977, 979 (4th Cir. 1992). Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133, 1142-1145 (10th Cir.

2005) ("if the point source is `discharging,' the `person' who owns or operates the point source is liable under the Act." Id. at 1145). h. Phelps Dodge Corporation, et al v. U.S. Energy Corp. et al., Civil Action No. 02-

B-796, at p. 35 (D.Colo. 2005), (attached as Exhibit 3 to Plaintiffs' Brief Identifying Legal Authority Supporting Elements of Liability [#226] dated April 8, 2005)("the Clean Water Act 11

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and federal case law provide that legal responsibility for a discharge of pollutants lies with the owners of the property and those that control the discharge."). III. 1. a. LEGAL AUTHORITY ON COLLATERAL ESTOPPEL

STATUTORY AUTHORITY 33 U.S.C. § 1369(b)(2) (determinations made in issuing or denying a permit under

33 U.S.C. § 1342 "shall not be subject to judicial review in any civil or criminal proceeding for enforcement."). 2. a. CASE LAW Matosantos Commercial Corp. v. Applebee's Int'l, Inc., 245 F.3d 1203, 1208-

1209 (10th Cir. 2001) (the doctrine of collateral estoppel bars the relitigation of issues). b. This Court's Order Granting the Defendants' Motion for Summary Judgment on

the First Ten Claims for Relief and Concluding that the Claims are NOT Barred by the Doctrine of Res Judicata [#164] dated March 12, 2004, p. 15, fn. 11 (recognizing that Defendants may be barred from relitigating issues already resolved by the regulatory agencies). c. PIRG v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 77-78 (3rd Cir. 1990) cert.

denied, 489 U.S. 1109 (1991)(under 33 U.S.C. § 1369(b)(2) a party may not challenge permitting determinations in an enforcement action). d. Salida School District v. Morrison, 732 P.2d 1160, 1163 (Colo.

1987)(administrative determinations can bar re-litigation of issues under the doctrine of collateral estoppel).

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IV. 1. a.

ENFORCEABILITY OF STATE REQUIREMENTS IN PERMIT

CASE LAW Northwest Environmental Advocates v. Portland, 56 F.3d 979, 985-90 (9th Cir.

1995), cert. denied, 135 L.Ed. 2d 1069, 116 S.Ct. 2550 (1996)(citizen suit jurisdiction exists to enforce permit conditions based on state-established water quality standards). b. Parker v. Scrap Metal Processors, Inc., 386 F.3d 993, 1105-07 and fn. 15 (11th

Cir. 2004)(federal courts have jurisdiction to enforce violations of state-issued NPDES permit conditions, even if those conditions are stricter than those required by federal law). c. Environmental Protection Agency v. California, 426 U.S. 200, 223-224, 96 S.Ct.

2022, 2033 (1976). (citizens can sue permit holders for violation of either "conditions imposed in accordance with EPA promulgated effluent limitations and standards and...those imposed in accordance with more stringent standards and limitations established by a State pursuant to § 510 [of the Clean Water Act, 33 U.S.C. § 1370]." 426 U.S. at 224, 96 S.Ct. at 2033). V. 1. a. LEGAL AUTHORITY ON MODIFICATION OF FINAL PERMIT FEDERAL REGULATORY AUTHORITY 40 C.F.R. § 124.16(a)(1) ("If the permit involves a new facility or...new

discharger, the applicant shall be without a permit for the proposed new facility...source or discharger pending final agency action."). b. 40 C.F.R. § 124.60(a)(1)(1996) ("If a request for a formal hearing is granted

...regarding the initial permit issued for a new source, [or] a new discharger...the applicant shall be without a permit pending final agency action under § 124.91."). c. 40 C.F.R. § 122.63 (all modifications except "minor modifications" must be 13

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subject to public notice and comment). 2. a. STATE REGULATORY AUTHORITY 5 CCR 1002-61.6(d) (when a polluter challenges an NPDES permit for a new

discharge, the polluter is without a permit during the pendency of the appeal and thus the polluter is not authorized to discharge pollutants under the challenged permit). b. 5 CCR 1002-61.7(e)(1) (the WQCD may only agree to a stay of a "renewal"

permit and does not have the legal authority to stay a "new" permit). c. The State regulations may not be less stringent that the federal regulations. 40

C.F.R. § 123.25(a). See also, Pennsylvania PIRG v. P.H. Glatfelter Co., 128, F.Supp. 2d 747, 749 (M.D. Pa. 2001). 3. a. CASELAW Pennsylvania Public Interest Research Group v. P.H. Glatfelter Co., 128

F.Supp.2d 747, 758-59 (M.D. Pa. 2001)("[a]s the 1989 Adjudication modified Defendant's 1984 Permit, it was necessary that proper modification procedures be followed. Modifications to permits must comport with the same procedures as the issuance of an original permit. 40 C.F.R. § 123.25(a)(22 & (25)."; "Because DEP in that case had not followed proper modification procedures before entering into the consent agreement, the court found that the defendants' obligations had not been altered." citing Proffitt v. Lower Bucks County Joint Mun. Auth., 1987 WL 28350 (E.D.Pa. 1987) rev'd on other grounds 877 F.2d 57 (3d Cir. 1989)). b. Sierra Club v. Young Life Campaign, Inc., 176 F.Supp.2d 1070, 1080-1081 (D.

Colorado 2001). (Before granting a petition to modify a permit, "CDPHE would be required to comply with the procedural and substantive requirements for modifying an NPDES permit, 14

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including providing a meaningful opportunity for public comment." Id. at 1080; "Young Life has an absolute duty to comply with its NPDES permit....This duty remains regardless of oral or written representations by the permitting agency allegedly excusing compliance with permit requirements." Id. at 1081). c. Student Public Interest Research Group v. Monsanto Co., 600 F.Supp. 1479, 1486

(D.N.J. 1985)(request for permit modification does not stay requirement). d. United States v. Smithfield Foods, Inc., 191 F.3d 516, 523-524 (4th Cir. 1999) cert.

denied 531 U.S. 813 (2000) ("because [the defendants] did not follow the procedures required for modification of a permit, and none of the Board's Special Orders and letters were issued in accordance with the permit modification procedures" the permit terms governed effluent discharge standards). e. Citizens for a Better Env't-California v. Union Oil Co. of California, 83 F.3d

1111, 1119-1120 (9th Cir. 1996)("federal courts are not precluded from addressing the issue of whether the CDO [cease and desist order] effectively modified the NPDES compliance date." Id. at 1119; "federal and state regulations govern the modification of NPDES permits. It is not disputed that these regulations were not followed in this case. These regulations, both procedural and substantive, ensure that the standards embodied in an NPDES permit cannot be evaded with the cooperation of compliant state regulatory authorities." Id. at 1120). f. Proffitt v. Rohm & Hass, 850 F.2d 1007, 1012 (3rd Cir. 1988)("we do not read the

regulations to permit dispensing with public notice when an amendment effects a substantial change in the terms of a permit."). g. Proffitt v. Lower Bucks County Joint Mun. Auth., 1987 WL 28350, *1-*3 (E.D. 15

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Pa. 1987) (consent order "could not properly modify the permit limits since the proper regulatory steps were not taken to effectuate the modification." Id. at *2; States and permittees should not be allowed "to contract that public participation away" in a consent order and agreement altering original permit limits. Id.). h. Public Interest Research Group v. Yates Indus., Inc., 757 F.Supp. 438, 445

(D.N.J. 1991) ("Mere verbal representations by officials that certain portions of a permit will not be enforced, without formal modification in the permit, will not excuse the holder from the terms of that permit."). i. Culbertson v. Coats American, Inc., 913 F.Supp. 1572, 1579 (N.D. Ga.

1995)(modification order between polluter and a state does not effectively modify NPDES permit). j. Russian River Watershed Protection v. Santa Rosa, 142 F.3d 1136, 1143 (9th Cir.

1998)("establishment of a method of compliance with an NPDES permit does not constitute a modification of the permit."). k. United States v. Ohio Edison Co., 725 F.Supp. 928, 932-933 (N.D. Ohio 1989)

(letters between polluter and state do not modify permit to prevent EPA enforcement). l. Public Interest Research Group of N.J. v. New Jersey Expressway Auth., 822

F.Supp. 174, 184-185 (D.N.J. 1992)("Since the MOU's [memorandum of understanding's] effluent limitations were less stringent than those in the permit, it cannot constitute an actual modification...." Id. at 185). m. Baker v. General Motors Corp., 522 U.S. 222, 232, 118 S.Ct. 657, 663 (1998)(the

full faith and credit statute at 28 U.S.C. § 1738 does not apply unless there has been a final 16

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judgment entered by a state court). VI. 1. a. COLORADO ADMINISTRATIVE PROCEDURE ACT STATUTORY AUTHORITY Colorado Administrative Procedures Act, C.R.S. § 24-4-106(2), C.R.S. § 24-4-

105(15)(a), and the Colorado Water Quality Control Act, C.R.S. § 25-8-404(1) (all administrative processes must be exhausted before filing for judicial review). 2. a. REGULATORY AUTHORITY 40 C.F.R. § 123.30 (under federal law, the public has a right to intervene in state

judicial proceedings related to NPDES permits). 3. a. CASELAW Colorado Dept. of Public Health v. Bethell, 60 P.3d 779, 784 (Colo.App.

2002)(all administrative processes must be exhausted before filing for judicial review). b. Burlington Resources Oil & Gas v. Colorado Oil and Gas Conservation

Commission, 986 F.Supp. 1351, 1353-54 (D.Colo. 1997)(there must be strict compliance with the requirement to exhaust administrative remedies and failure to do so before seeking judicial relief is a jurisdictional defect). c. Bd. of Med. Examiners v. Court of Appeal ("Med. Examiners"), 920 P.2d 807,

814 (Colo. 1996)(court did not have jurisdiction to stay an interim agency order under C.R.S. §24-4-106(8)). VII. LEGAL AUTHORITY ON STAY OF INITIAL DISCHARGE PERMIT 1. a. STATUTORY AUTHORITY Colorado Water Quality Control Act, C.R.S. § 25-8-406 (state may only stipulate 17

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to a stay of a "renewal" permit, not a new permit). b. Colorado Water Quality Control Act, C.R.S. § 25-8-501(2) ("Until modified

pursuant to this article, final permits shall be governed by their existing limitations."). b. Federal Clean Water Act, 33 U.S.C. § 1251(e)("Public participation in the

development, revision, and enforcement of any regulation, standard, effluent limitation, plan or program established by the Administrator or any State under this chapter shall be provided for, encouraged, and assisted by the Administrator and the States."). c. 40 C.F.R. §123.25(a)(25), (28), (29)("All State [NPDES] Programs...must be

administered in conformance with" the federal regulations governing public notice [40 C.F.R. §124.10], public comments [40 C.F.R. §124.11] and permit modification [40 C.F.R. §124.5]). 2. a. REGULATORY AUTHORITY Colorado Discharge Permit System Regulations, 61.5 (2) & (3) (state NPDES

permit regulations require public notice and comment) and 61.7(1)(f) (state may only stay "renewal" permit). VIII. LEGAL AUTHORITY ON VIOLATIONS OF CWA DURING A PERMIT APPEAL 1. a. REGULATORY AUTHORITY 40 C.F.R. § 124.16(a)(1) and 5 CCR 1002-61.6 (d)(when a polluter challenges an

NPDES permit for a new discharge, the polluter is without a permit during the pendency of the appeal and thus the polluter is not authorized to discharge pollutants under the challenged permit). 2. CASE LAW 18

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a.

Train v. Natural Resources Defense Council, Inc., 421 U.S. 60, 92, 95 S.Ct. 1470,

1488 (1975) (judicial review of environmental regulations "is carried out on the polluter's time, not the public's, for during its pendency the original regulations remain in effect, and the polluter's failure to comply may subject him to a variety of enforcement procedures."). IX. 1. a. LEGAL AUTHORITY ON DEFERENCE TO AGENCY

CASE LAW Huddleston v. Bd. Of Equal., 31 P.3d 155, 160 (Colo. 2001)(any interpretation by

a state agency that is contrary to the plain language of a statute or regulation is not entitled to any deference). b. Orsinger Outdoor Advertising, Inc. v. Department of Highways, 752 P.2d 55, 66

(Colo. 1988)(an agency's reasonable interpretation of the meaning of an ambiguous statutory or regulatory provision within its expertise is entitled to weight). X. 1. a. CASE LAW Beartooth Alliance v. Crown Butte Mines, 904 F.Supp. 1168, 1174-1176 (D. LEGAL AUTHORITY ON MOOTNESS DEFENSE

Mont. 1995). ("To be in compliance with the CWA, it is necessary not only to apply for, but also to have a permit." Id. at 1174; "Because civil penalties remain an issue, this case is not moot." Id. at 1176). b. Powell v. McCormack, 395 U.S. 486, 496-97, 89 S.Ct. 1944, 1951 (1969).

("Where several forms of relief are requested and one of these requests subsequently becomes moot, the Court has still considered the remaining requests." 395 U.S. at 496 n.8, 89 S.Ct. at 1951 n.8; "[T]he remaining live issues supply the constitutional requirement of a case or 19

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controversy" 395 U.S. at 497, 89 S.Ct. at 1951). c. Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528

U.S. 167, 173-74, 120 S.Ct. 693, 700 (2000)("The appellate court erred in concluding that a citizen suitor's claim for civil penalties must be dismissed as moot when the defendant, albeit after the commencement of the litigation, has come into compliance."). d. Church of Scientology of Cal. v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 449

(1992)(A case should only be dismissed as moot if the subsequent event "makes it impossible for the court to grant `any effectual relief whatever....'"). e. Friends of the Earth v. Chevron Chemical, 900 F.Supp. 67, 71-73 (E.D. Tex.

1995)(rejecting mootness argument based on a more lenient permit). f. Ecological Rights Foundation v. Pacific Lumber Co.("Pacific Lumber"), 230

F.3d 1141, 1153 (9th Cir. 2000)("we cannot say that the controversy as regards Pacific Lumber's violations of the 1992 General Permit are no longer live even if the plaintiffs have not properly claimed violations of the 1997 General Permit, as long as effective relief is possible....Monetary penalties can serve their general deterrent function as well now that Pacific Lumber's discharges are regulated under a new, stricter permit as they could under the old permit. The underlying statutory rule appellants seek to enforce in this case precludes any discharges except in compliance with an applicable permit. 33 U.S.C. § 1311(a). There is no basis for believing that the bare fact of a new stricter permit makes future permit violations any less likely, deterrence any less necessary, or the deterrent effect of civil penalties any less potent. We must conclude that civil penalties, if appropriate on the merits, would serve their deterrent purpose in this case."). 20

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g.

Natural Resources Defense Council v. Texaco Refining & Marketing, Inc., 2 F.3d

493, 503 (3rd Cir. 1993)("If penalty claims could be mooted, polluters would be encouraged to delay litigation as long as possible, knowing that they will escape liability even for postcomplaint violations, so long as violations have ceased at the time the suit comes to trial."). h. City of Erie v. Pap's A.M ("Pap's A.M."), 529 U.S. 277, 287 (2000) and Pacific

Lumber, 230 F.3d at 1153 (post-complaint events did not render the case moot despite the fact that the party ceased operating the facility in question and sold the building in question which had been then converted to another use). i. San Francisco Baykeeper, Inc. v. Tosco Corp. ("Tosco"), 309 F.3d 1153, 1159-

1160 (9th Cir. 2003) cert. denied 123 S.Ct. 2296 (2003)(rejecting the mootness defense in a CWA case because liability for civil penalties attach at the time of the violation and post complaint actions do not moot penalties). j. In re Southdown, 144 F.Supp.2d 935, 943-944 (S.D. Ohio 2001) (also rejecting

the mootness defense in a CWA case). XI. 1. INAPPLICABILITY OF UPSET DEFENSE

REGULATORY AUTHORITY

a. 40 C.F.R. § 122.41(n)(3) (federal regulations only allow upset defense for "technology based effluent limitations" not water quality based effluent limitations). 2. a. CASELAW Sierra Club v. Union Oil, 813 F.2d 1480, 1490 (9th Cir. 1987) (upset is an

affirmative defense to a citizen suit; and upset defense inapplicable where defendants' facilities not designed to handle heavy rainfall), remanded on other grounds, 485 U.S. 931 (1988), 21

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remanded and reinstated, 853 F.2d 667 (9th Cir. 1988). b. U.S. v. Gulf States Steel, Inc., 54 F.Supp. 2d 1233, 1247 (N.D. Ala. 11999) (upset

is an affirmative defense; and events that are long standing, continuous, or recur every year at the same time, such as seasonal weather patterns, are not considered exceptional and therefore the upset defense is not applicable). c. Chesapeake Bay Foundation v. Bethlehem Steel Corp., 652 F.Supp. 620, 630

(D.Md. 1987)(upset provision does not provide relief where there is a pattern of violations). d. Student PIRG v. P.D. Oil & Chemical, 627 F.Supp. 1074, 1086 (D.N.J.

1986)(defendant bears the "burden.... to demonstrate that each of its violations satisfy all requirements" for the "affirmative defense" of upset). e. State of Oklahoma v. E.P.A., 908 F.2d 595, 613 (10th Cir. 1990)(EPA's upset

regulation is inapplicable to water quality based effluent limits), overruled on other grounds, Arkansas v. Oklahoma, 503 U.S. 91 (1992). XII. EVIDENTIARY ISSUES A. 1. a. Discharge Monitoring Reports Are Admissions. REGULATORY AUTHORITY 40 C.F.R. § 122.41(l)(4)(i) ("Monitoring results shall be reported on a Discharge

Monitoring Report (DMR)...." 2. a. CASE LAW Student PIRG of New Jersey, Inc. v. Monsanto Co. 600 F.Supp. 1479, 1485

(D.N.J. 1985)(discharge monitoring reports ("DMRs") are admissions because they are prepared by the permittee). 22

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b.

Sierra Club v. Union Oil Co., 813 F.2d 1480, 1492 (9th Cir. 1987), vacated and

remanded on other grounds, 485 U.S. 931, remanded and reinstated, 853 F.2d 667 (9th Cir. 1988)(DMRs are conclusive, irrebuttable proof of a permittees violations--permittees are not allowed to impeach the date and information contained in their DMRs). c. Or. State Pub. Interest Research Group v. Pac. Coast Seafoods Co., 361 F.Supp.

2d 1232, 1240-41 (D. Or. 2005) ("DMRS are also judicial admissions and the defendant may not impeach its own reports by showing sampling error."). B. 1. a. Judicial orders or opinions in unrelated proceedings are hearsay. CASELAW Herrick v. Garvey, 298 F.3d 1184, 1191 (10th Cir. 2002) ("The [judicial opinion]

is hearsay It is an out-of-court written statement by a judge now offered to prove the truth of the matter asserted... It is therefore inadmissible unless it falls within one of the hearsay exceptions" and "Only one hearsay exception might possible apply ... the exception for public records and reports.... Rule 803(8) was not intended to allow the admission of findings of fact by courts. Rule 803(8) is limited to investigations: `A judge in a civil trial is not an investigator, rather a judge.'"). C. 1. a. The admission of sampling results is governed by Rule 901. STATUTORY AUTHORITY Fed. R. Evid. 901(a) ("The requirement of authentication or identification ... is

satisfied by evidence sufficient to support a finding that the matter in questions is what its proponent claims.").

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b.

Fed. R. Evid. 901(b) ("By way of illustration only ... the following are examples

of authentication or identification conforming with the requirements of this rule...(9) Process or System. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.") 2. a. CASELAW U.S. v. Lauder, 409 F.3d 1254, 1264-65 ("Properly framed, the admissibility of

the fingerprint cards is governed by the evidentiary rules regarding foundation and authentication, not Daubert.... Daubert generally does not ... regulate the underlying facts or data that an expert relies on when forming her opinions...." And "Absent some specific objection to the technology underlying the digital equipment, a court is not required to take testimony as to how the equipment works. If the party opposing the exhibit has doubts as to whether the matter in question is what its proponent claims, the proper objection would arise under Rule 901, not Rule 702/Daubert."). XIII. CORPORATE ISSUES a. Bebo Construction Co. v. Mattox & O'Brien, P.C., 998 P.2d 475, 477 (Colo. Ct.

App. 2000)("A joint venture is a partnership formed for a limited purpose, and the acts of one joint venturer are binding upon the other joint venturers if those acts pertain to matters within the scope of the joint venture and the joint venture had authority to act....Therefore, just as with partners in a partnership, joint ventures are jointly liable for the obligations of the venture."). b. Natural Resource Defense Counsel v. Texaco Refining & Marketing, Inc., 719

F.Supp. 281 (D. Del. 1989), vacated and remanded, 906 F.2d 934 (3rd Cir. 1990), relief granted, 800 F.Supp. 1 (D. Del. 1992) aff'd in part, rev'd in part, and remanded, 2 F.3d 493 (3rd Cir. 24

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1993) consent decree enforced, 20 F.Supp.2d 700 (D.Del. 1998) (Defendant is liable because it is a partner in the joint venture). XIV. CORPORATE PARENT LIABILITY a. United States v. Best Foods, 524 U.S. 51, 118 S.Ct. 1876 (1998). (Under Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), which, like Clean Water Act, imposes liability for any "owner or operator," "a corporate parent that actively participated in, and exercised control over, the operations of the facility itself may be held directly liable in its own right as an operator of the facility." 524 U.S. at 55, 118 S.Ct. at 1881; "nothing in the statute's terms bars a parent corporation from direct liability for its own actions in operating a facility owned by its subsidiary" 524 U.S. at 64, 118 S.Ct. at 1886; "an operator is simply someone who directs the workings of, manages, or conducts the affairs of a facility." 524 U.S. at 66, 118 S.Ct. at 1887; "a parent can be held directly liable when the parent operates the facility in the stead of its subsidiary or alongside the subsidiary in some sort of joint venture." 524 U.S. at 71, 118 S.Ct. 1889; and evidence of direct liability includes when the parent becomes "directly involved in environmental and regulatory matters through the work of ...." a parent employee and when that employee became "heavily involved in environmental issue" at the facility. 524 U.S. at 72, 118 S.Ct. at 1890). DATED this 3rd day of February 2006.

Respectfully Submitted, s/ Jeffrey C. Parsons Jeffrey C. Parsons Roger Flynn 25

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Western Mining Action Project 2260 Baseline Road, Suite 101A Boulder, CO 80302 303) 473-9618 John M. Barth Attorney at Law P.O. Box 409 Hygiene, CO 80533 (303) 774-8868 Randall M. Weiner, Atty. No. 23871 1942 Broadway, Suite 408 Boulder, Colorado 80302 Tel: 303-938-3773 Fax: 303-442-6622 [email protected]

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CERTIFICATE OF SERVICE I, the undersigned, hereby certify that a copy of the foregoing Plaintiffs' Trial Brief was filed electronically with the Clerk of the Court on February 3, 2006 and was then forwarded electronically to the following persons via the ECF system: Eugene J. Riordan Vranesh and Raisch P.O. Box 871 Boulder, CO 80306-871 [email protected] Don Sherwood 10861 West 28th Place Denver, CO 80215 [email protected] Robert C. Troyer Hogan and Hartson One Tabor Center 1200 17th Street, Suite 1500 Denver, CO 80202 [email protected] s/ Jeffrey C. Parsons ____________________ Jeff Parsons Craig Carver Carver, Kirchhoff, Schwartz, McNab & Bailey, P.C. Hudson's Bay Centre 1600 Stout Street, Suite 1700 Denver, CO 80215

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