South-Western Legal Studies in Business

Passive Land Owner May Be Liable for Pollution Discharges
Description Appeals court held that the owner of land that contained an abandoned mine shaft that may contribute pollution to a river may be liable for the pollution and for not having a discharge permit, even though the land owner never engaged in mining.
Topic Environmental Law
Key Words Clean Water Act; Discharges; Violations; Permits; Mining
C A S E   S U M M A R Y
Facts El Paso owns 100 acres of land it bought in 1968 near Cripple Creek, Colorado. El Paso has engaged in no mining activity on the land. The land contains a collapsed mine shaft built in 1910. The shaft is connected to a six-mile long drainage tunnel that is connected to other old mines. The tunnel drains into Cripple Creek. The Sierra Club sued El Paso for violating the Clean Water Act (CWA) by discharging pollutants (zinc and manganese) from a point source, the mine shaft, into Cripple Creek without a discharge permit. The district court awarded summary judgment for plaintiff. El Paso was ordered to pay $94,000 in civil penalties, pay attorneys’ fees for the Sierra Club, and to apply for a discharge permit. El Paso appealed.
Decision

Reversed in part. To establish a violation of the CWA provision prohibiting discharge of pollutants without a permit, a plaintiff must prove that defendant 1) discharged 2) a pollutant 3) into navigable waters 4) from a point source 5) without a permit. El Paso could be liable under the CWA for discharges from the abandoned mine shaft even though it never conducted any mining operations. Successor owners of a point source of discharges are subject to permitting requirements. Point source owners can be liable for discharge of pollutants occurring on their land, whether or not they acted in some way to cause the discharge. However, summary judgment was not appropriate here as there is a question of fact whether the mine shaft owned by El Paso is the source of pollutants flowing through the tunnel. That must be shown at trial for El Paso to be liable.

Citation Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133 (10th Cir., 2005)

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