Adams Jr. et al v. Teck Cominco Alaska Inc. et al

Filing 136

Order on Motion for Partial Summary Judgment

UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA

ENOCH ADAMS, JR., LEROY ADAMS,
ANDREW KOENIG, JERRY NORTON,
DAVID SWAN, and JOSEPH SWAN,
Plaintiffs,
vs.
TECK COMINCO ALASKA, INC.,
Defendant.

NANA REGIONAL CORPORATION and
NORTHWEST ARCTIC BOROUGH,
Interveners-Defendants.

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3:04-cv-00049-JWS
ORDER AND OPINION
[Re:

Motion at Docket 72 and
Order for Status Report]

I. MOTION PRESENTED
At docket 72, plaintiffs Enoch Adams, Jr., Leroy Adams, Andrew Koenig, Jerry
Norton, and Joseph Swan1 move for partial summary judgment establishing defendant
Teck Cominco Alaska, Inc.’s liability for 1,951 violations of its National Pollution
Discharge Elimination System permits. At docket 100, defendant opposes the motion.
Plaintiffs’ reply is filed at docket 124. Oral argument was heard on June 15, 2006.

1

Plaintiff David Swan died on May 5, 2005.

II. BACKGROUND
Except as otherwise noted, the facts in this section are those alleged in plaintiffs’
complaint2 which were not denied in defendant’s answer.3 Plaintiffs are residents of the
village of Kivalina located near the mouth of the Wulik River in northwestern Alaska.
The Wulik River is the primary source of drinking water for Kivalina residents. Plaintiffs
subsistence fish in the Wulik River and its tributaries. Some of the plaintiffs also harvest
fish and marine mammals from the Chuckchi Sea near the mouth of the river.
Defendant Teck Cominco Alaska, Inc. (“Teck”) operates the Red Dog Mine, which is
located about fifty-five miles from the Chuckchi Sea on land owned by the Northwest
Arctic Native Association (“NANA”). Ore removed from the open pit mine is milled to
obtain zinc and lead concentrates. Throughout the year, the concentrates are trucked
over the DeLong Mountain Road to storage buildings about a mile from tidewater.
During the months when the Chuckchi Sea is free of ice, the concentrates are loaded
aboard ships for transport to smelters outside Alaska. The tidewater storage facilities
and other infrastructure at the port site are on NANA land. Teck operates the mine and
the port sites under an agreement with NANA.
Cyanide is used in the milling process at the mine. Tailings and process
wastewater resulting from the milling operation are impounded in a tailings pond, from
which treated wastewater is discharged into the Middle Fork of Red Dog Creek through
Outfall 001. Mining takes place year-round, but wastewater is discharged only during
the warmer periods, generally from May until early October. The mouth of the Wulik
River is downstream of Outfall 001.
Federal law prohibits discharge of pollutants from point sources except in
compliance with the provisions of the Clean Water Act (“CWA”).4 The discharge of

2

Doc. 10.

3

Doc. 6.

4

33 U.S.C. § 1311(a). Section 1 of Pub. L. 95-217 indicates that a set of federal water
pollution control statutes - statutes that include those of great relevance to this litigation - may
be cited as the “Clean Water Act of 1977.” For simplicity and because there have been
subsequent amendments, the court uses the term “Clean Water Act” to refer to this statutory

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pollutants may be authorized in accordance with National Pollution Discharge
Elimination System (“NPDES”) permits.5 In Alaska, NPDES permits are issued by the
federal Environmental Protection Agency (“EPA”). The EPA issued NPDES permit
number AK-03865-2 for the Red Dog mine site in 1985, reissued the permit in 1998,
modified the permit in July 2003, and administratively extended it when the permit
expired on August 28, 2003. The permit authorizes Teck to discharge 2.418 billion
gallons of effluent from the tailings pond via Outfall 001 each year. Eleven discharge
parameters are found in the permit which uses two limitation types–daily maximum
discharge limits and monthly average discharge limits.
The EPA issued NPDES permit number AK004064-9 for the port site, effective
January 29, 1999. The permit authorizes Teck to discharge treated wastewater from a
sewage treatment plant into the Chuckchi Sea via Outfall 001, and to discharge
drainage from the concentrate storage buildings into the Chuckchi Sea or onto the
tundra from Outfall 005. Under the terms of both the mine and port site NPDES
permits, Teck is required to file discharge monitoring reports (“DMR”) with the EPA.
Between the effective date of the 1998 mine site NPDES permit and the date
plaintiffs filed the underlying complaint, the EPA issued four Compliance Orders by
Consent (“COBCs”) extending Teck’s schedule for compliance with the 170 mg/l
monthly average and 196 mg/l daily maximum limits for TDS set out in the 1998 mine
site NPDES permit. The July 1999 COBC states that Teck shall achieve compliance
with the mine site permit limits for TDS by the beginning of the 2001 discharge season,
and that during the 1999 and 2000 discharge seasons, Teck shall limit TDS discharged
in its wastewater to maintain in-stream TDS concentrations at or below 1,500 mg/l at
Station 10 during the entire discharge season, and at 500 mg/L at Station 7 from July 25
through August 31.6

scheme.
5

33 U.S.C. § 1342(a).

6

1999 COBC at 3, doc. 72, exh. 73.

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The May 2000 COBC states that Teck shall achieve compliance with the permit
limit for TDS by the beginning of the 2001 discharge season, and that during the 1999
and 2000 discharge seasons, Teck shall limit TDS discharged in its wastewater so as to
maintain in-stream TDS concentrations at or below 1,500 mg/l at Station 10 during the
entire discharge season, and at 500 mg/l at Station 7 from July 25 through August 31.7
The May 2001 COBC requires Teck to comply with the TDS limits in the 1998 permit by
the beginning of the 2002 discharge season, and states that during the 2001 discharge
season, Teck shall maintain in-stream TDS concentrations at or below 1,500 mg/l at
Station 10 during the entire discharge season, and at 500 mg/l at Station 7 from July 25
through September 15.8
The May 2002 COBC requires Teck to come into compliance with the TDS limits
in its NPDES permit by August 2003, and states that during the 2002 and 2003
discharge seasons, Teck shall maintain in-stream TDS concentrations at or below 1,500
mg/l at Station 10 during the entire discharge season, and at 500 mg/l at Station 160
from July 25 through the end of the discharge season.9 The COBCs also collectively
state that Teck violated both the daily maximum and monthly average TDS effluent
limits contained in the 1998 NPDES permit during the months of September 1998, May
through October of 1999, May through October of 2000, and May through October of
2001, and state that Teck’s violations of the TDS limits in the NPDES permit constitute
violations of 33 U.S.C. § 1311(a).
Plaintiffs filed the underlying complaint on March 8, 2004. Plaintiffs’ complaint
alleges ten claims. Claims one through seven and ten, all of which allege violations of
33 U.S.C. § 1311(a), are pertinent to the motion presented herein. Claim one alleges
violations of the total dissolved solids (“TDS”) limit in the mine site NPDES permit.
Claim two asserts violations of cyanide limits in the mine site permit. Claim three
asserts violations of Whole Effluent Toxicity (“WET”) testing requirements in the mine

7

2000 COBC at 4, doc. 72, exh. 74.

8

2001 COBC at 4-5, doc. 72, exh. 75.

9

2002 COBC at 5, doc. 72, exh. 76.

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site permit. Claim four alleges unpermitted discharges to the tundra in violation of the
mine site permit. Claim five asserts self-monitoring and reporting violations of the mine
site permit. Claim six alleges unpermitted discharges from the port site and violations of
the total suspended solids (“TSS”) limit in the port site NPDES permit. Claim seven
alleges violations of the COBCs. Claim ten alleges self-monitoring and reporting
violations of the port site permit.
In their complaint, plaintiffs seek penalties for 2,309 violations of Teck’s mine and
port site NPDES permits and related COBCs. Plaintiffs now move for partial summary
judgment establishing Teck’s liability for 1,951 of those violations. Plaintiffs further
request the court to find Teck “subject to civil penalties of up to $27,500 for each of the
1,951 days of violation.”10
III. STANDARD OF REVIEW
Federal Rule of Civil Procedure 56(c) provides that summary judgment should be
granted when there is no genuine issue as to any material fact and when the moving
party is entitled to judgment as a matter of law. The moving party has the burden of
showing that material facts are not genuinely disputed.11 To meet this burden, the
moving party must point out the lack of evidence supporting the nonmoving party’s
claim, but need not produce evidence negating that claim.12 Once the moving party
meets its burden, the nonmoving party must demonstrate that a genuine issue of fact
exists by presenting evidence indicating that certain facts are disputed so that a factfinder must resolve the dispute at trial.13 The court must view this evidence in the light
most favorable to the nonmoving party, must not assess its credibility, and must draw all
justifiable inferences in favor of the nonmoving party.14

10

Motion at 36, doc. 72.

11

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

12

Id. at 325.

13

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).

14

Id. at 255; Soldano v. United States, __F.3d__, 2006 WL 1897081 (9th Cir. 2006).

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IV. DISCUSSION
Plaintiffs move for partial summary judgment establishing defendant’s liability for
1,951 violations of its mine and port site NPDES permits. Plaintiffs allege that all of the
violations are confirmed by defendant’s self-monitoring reports. Defendant opposes the
motion on several grounds, including standing, subject matter jurisdiction, regulatory
mootness, and failure to allege a violation. The court addresses the issues of standing
and subject matter jurisdiction before addressing the alleged permit violations.
A.

STANDING
Defendant first argues that plaintiffs lack individual standing to proceed on the

merits of their lawsuit. “[T]o satisfy Article III’s standing requirements, a plaintiff must
show (1) it has 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 decision.”15 “[T]he threshold
question of citizen standing under the CWA is whether an individual can show that she
has been injured in her use of a particular area because of concerns about violations of
environmental laws, not whether the plaintiff can show there has been actual
environmental harm.”16 “[E]nvironmental plaintiffs adequately allege injury in fact when
they aver that they use the affected area and are persons ‘for whom the aesthetic and
recreational values of the area will be lessened’ by the challenged activity.”17
Here, plaintiffs each filed a declaration detailing the injuries suffered because of
defendant’s alleged violations. Plaintiff Enoch Adams declares that he no longer
obtains drinking water from the Wulik River because of defendant’s discharges into the
Middle Fork Red Dog Creek, a tributary to the Wulik River; he is concerned about the

15

Friends of the Earth v. Laidlaw, 528 U.S. 167, 180-181 (2000) (citing Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-561 (1992)).
16

Ecological Rights Foundation v. Pacific Lumber Co., 230 F.3d 1141, 1151 (9th Cir.

2000).
17

Laidlaw, 528 U.S. at 183 (quoting Sierra Club v. Morton, 405 U.S. 727, 735 (1972)).

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risks of eating contaminated fish; he has noticed changes in the bearded seal
population around Kivalina since defendant’s port site opened; he is “afraid of what kind
of contamination the fish, caribou, ugruk, and belugas may have as a result of drinking
the contaminated water that contains the discharge from the mine”; and he “cannot
enjoy this beautiful area as much knowing there are contaminants in the River from
Teck Cominco’s violations.”18 The remaining plaintiffs present evidence to similar
effect.19 Plaintiffs’ sworn statements are sufficient to establish injury in fact.
“The issue in the causation inquiry is whether the alleged injury can be traced to
the defendant’s challenged conduct, rather than to that of some other actor not before
the court.”20 Plaintiffs have presented evidence that defendant has discharged
pollutants in violation of NPDES permits, the pollutants discharged by defendant are
toxic, and the discharge flows into waters that plaintiffs use for drinking, subsistence
fishing, and recreation. Plaintiffs also allege, and defendant does not dispute, that
defendant is the only “industrial polluter in the Wulik River watershed.”21 Here, as in
Ecological Rights Foundation, ”[i]t requires no attenuated chain of conjecture” to link
defendant’s alleged illegal conduct to plaintiffs’ diminished enjoyment of the Wulik
River.22
Similarly, plaintiffs have satisfied the “fairly traceable” requirement by showing
that defendant discharges pollutants that contribute to the kinds of injuries alleged in the
geographic area around the village of Kivalina.23 The redressability component focuses
on a plaintiff’s injury and the judicial relief sought. On summary judgment, a plaintiff

18

Declaration of Enoch Adams, Jr. at 4, attached to doc. 72.

19

See Declarations of Leroy Adams, Jerry Norton, Andrew Koenig, and Joseph Swan,
attached to doc. 72.
20

Ecological Rights Foundation, 230 F.3d at 1152.

21

Doc. 72 at 12.

22

Ecological Rights Foundation, 230 F.3d at 1152.

23

Natural Resources Defense v. Southwest Marine, 236 F.3d 985, 995 (9th Cir. 2000)
(citation and internal quotation marks omitted).

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must establish that it is “likely, as opposed to merely speculative, that the injury will be
redressed by a favorable decision.”24 In this matter, plaintiffs seek injunctive relief, civil
penalties, and costs. Plaintiffs must demonstrate standing separately for each form of
relief sought.25 “A plaintiff who seeks injunctive relief satisfies the redressability
requirement by alleging a continuing violation” of an applicable standard.26 Here,
plaintiffs allege and have provided evidence that defendant is continuing to violate its
NPDES permits. Because plaintiffs seek an injunction to halt those continuing
violations, plaintiffs satisfy the redressability requirement for injunctive relief.27
Similarly, civil penalties and costs redress violations in a citizen suit by deterring
future violations and limiting defendant’s economic incentive to delay attainment of
permit limits. To the extent civil penalties encourage a defendant to discontinue current
violations and deter defendant from committing future violations, civil penalties afford
redress to citizen plaintiffs who are injured or threatened with injury as a consequence
of ongoing unlawful conduct.28 The civil penalties plaintiffs seek in this matter carry with
them a deterrent effect that make it likely, as opposed to merely speculative, that the
penalties will redress injuries “by abating current violations and preventing future
ones.”29
For the reasons stated above, plaintiffs have satisfied Article III’s requirements
and have standing to bring this action.

24

Laidlaw, 528 U.S. at 181.

25

Id. at 185.

26

Southwest Marine, 236 F.3d at 995.

27

Id.

28

Laidlaw, 528 U.S. at 186.

29

Id. at 187.

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B.

SUBJECT MATTER JURISDICTION
Defendant next argues that the court does not have jurisdiction over the alleged

violations because plaintiffs cannot establish that the violations were ongoing as of
March 8, 2004, the date plaintiffs filed their complaint. The Clean Water Act “‘does not
permit citizen suits for wholly past violations:’ rather, the statute ‘confers jurisdiction over
citizen suits when the citizen-plaintiffs make a good-faith allegation of continuous or
intermittent violation.’”30 Citizen-plaintiffs are not required to “prove their allegations of
ongoing noncompliance before jurisdiction attaches under § 505.”31
Claims one through seven and ten of plaintiffs’ complaint each contain
allegations that the violations at issue are “ongoing to this day or are capable of
repetition,” and that “without the imposition of appropriate civil penalties and the
issuance of appropriate equitable relief,” defendant will continue to violate its NPDES
permits. Based on the court’s review of the record, it appears that plaintiffs’ allegations
of continuous or intermittent violations are based on a good-faith belief, formed after
reasonable inquiry into the facts. Because plaintiffs have made the requisite good-faith
allegations, plaintiffs have satisfied the threshold requirement for jurisdiction.32
To prevail at trial, a citizen-plaintiff must prove ongoing violations.33 “[A] citizen
plaintiff may prove ongoing violations ‘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.’”34 The Ninth Circuit has “confirmed that ‘[i]ntermittent or sporadic
violations do not cease to be ongoing until the date when there is no real likelihood of
30

Southwest Marine, 236 F.3d at 998 (quoting Gwaltney of Smithfield, Ltd. v.
Chesapeake Bay Foundation, Inc., 484 U.S. 49, 64 (1987)).
31

Gwaltney, 484 U.S. at 64.

32

Southwest Marine, 236 F.3d at 998.

33

Community Association for Restoration of the Environment v. Henry Bosma Dairy, 305
F.3d 943, 953 (9th Cir. 2002).
34

Sierra Club v. Union Oil Co., 853 F.2d 667, 671 (9th Cir. 1988) (quoting Chesapeake
Bay Foundation, Inc. v. Gwaltney of Smithfield, Ltd., 844 F.2d 170, 171-72 (4th Cir. 1988)).

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repetition.’”35 In assessing the likelihood of repetition, the court may consider “whether
remedial actions were taken to cure violations, the ex ante probability that such
remedial measures would be effective, and any other evidence presented during the
proceedings that bears on whether the risk of defendant’s continued violation had been
completely eradicated when citizen-plaintiffs filed suit.”36 Violations can also be deemed
ongoing if in comparing self-reported exceedances before a complaint was filed and
afterwards, the same parameter is exceeded.37
Defendant alleges that plaintiffs have failed to offer evidence of ongoing TDS,
cyanide, and WET limit violations, monitoring and reporting violations, and unpermitted
discharge violations. The court will consider whether plaintiffs have met their burden of
establishing ongoing violations in its discussion of each category of violations.
C.

VIOLATIONS OF THE MINE SITE NPDES PERMIT
Defendant’s mine site permit establishes discharge limits for eleven parameters

and contains two types of limitations: a daily maximum discharge limit and a monthly
average discharge limit. Plaintiffs move for partial summary judgment establishing
defendant’s liability for violations of the TDS daily maximum and monthly average limits,
cyanide daily maximum and monthly average limits, WET daily maximum and monthly
average limits, and monitoring and reporting requirements. The alleged violations are
based solely on self-monitoring reports Teck has submitted to the EPA. The court
considers each category of alleged violations below.

35

Henry Bosma Dairy, 305 F.3d at 953 (quoting Chesapeake Bay Foundation, 844 F.2d

at 172).
36

Union Oil, 853 F.2d at 667 (quotation and citation omitted) (emphasis in original).

37

Sierra Club v. Union Oil Co. of California, 716 F.Supp. 429, 433 (N.D. Cal. 1989).

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1.

618 Violations of the Total Dissolved Solids Daily Maximum Limit38

Teck’s 1998 mine site NPDES permit sets a daily maximum limit for TDS of 196
mg/l at Outfall 001. The 196 mg/l daily maximum limit for TDS was in effect from March
1999 through March 8, 2004, the date plaintiffs filed their complaint. Plaintiffs allege
that defendant admitted 108 violations of the daily maximum TDS limit in its answer in
this litigation, and admitted “329 violations in the KRPC litigation and an additional 181
violations to the U.S. EPA, for a total of 618 violations of the daily maximum discharge
of TDS.”39
In July 2003, the EPA modified Teck’s mine site NPDES permit. The July 2003
modification of Teck’s mine site permit sets in-stream limits for TDS concentrations
during Arctic Grayling spawning season and for the remainder of the discharge season.
The 2003 permit also states that “[i]n addition to the above limitations the TDS
concentration at Outfall 001 shall not exceed 3,900 mg/l.”40 The 2003 permit
modification of the TDS limits became effective on June 15, 2004, with the exception of
the limits during grayling spawning period.41
Defendant first opposes plaintiffs’ motion for partial summary judgment on the
alleged violations of the daily maximum TDS limit on the grounds of regulatory
mootness. Defendant suggests that “an anticipated change” to its mine site NPDES
permit renders plaintiffs’ claim for violations of the daily maximum TDS limit moot.
Defendant specifically alleges that the anticipated “2006 permit will set TDS limits at
1500 mg/l in-stream Red Dog Creek during the entire discharge season and contain no
end of pipe limit.”42

38

In their motion for summary judgment, plaintiffs alleged four violations of the TDS daily
maximum in May 1999. Defendant pointed out that plaintiffs did not allege the four May 1999
violations in their complaint; consequently, plaintiffs withdrew the four May 1999 violations.
39

Reply at 44, doc. 124.

40

2003 Modified Permit at 8, doc. 72, exh. 71.

41

Opposition at 21, doc. 100.

42

Affidavit of Mark Thompson Regarding TDS at 4, doc. 100, exh. 1.

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Defendant’s argument of regulatory mootness based on an anticipated change in
the NPDES permit is premature. In seeking to have a claim dismissed as moot, the
defendant’s burden “is a heavy one.”43 “The defendant must demonstrate that it is
‘absolutely clear that the allegedly wrongful behavior could not reasonably be expected
to recur.’”44 Defendant cannot meet its burden here because Teck is currently operating
under the 2003 NPDES permit, which states that in addition to the in-stream limits for
TDS, the daily maximum TDS concentration at Outfall 001 shall not exceed 3,900 mg/l.
Moreover, even if the court assumes the renewed permit will moot plaintiffs’ claims for
injunctive relief related to violations of the daily maximum TDS limits, the court could still
impose civil penalties for violations that have already occurred provided the violations
are ongoing or capable of repetition.45
Defendant next argues that plaintiffs have not satisfied their burden of
demonstrating that Teck’s alleged violations of the daily maximum TDS limit are
ongoing. Plaintiffs allege that Teck’s violations of the daily maximum TDS limit in the
1998 permit were ongoing through June 14, 2004, and that Teck has also violated the
3,900 mg/l limit since plaintiffs filed this suit. In support, plaintiffs provide evidence that
Teck violated the 196 mg/l daily maximum limit for TDS at Outfall 001 in May 2004 and
in half of June 2004,46 and violated the new 3,900 mg/l limit for TDS at Outfall 001 in
August and September of 2004.47
Defendant does not deny the alleged violations of the 196 mg/l daily maximum
limit for TDS, nor its violations of the 3,900 mg/l limit. Rather, defendant argues that the
3,900 mg/l limit contained in the 2003 NPDES permit was “improperly derived and not

43

Gwaltney, 484 U.S. at 66 (quoting United States v. W.T. Grant Co., 345 U.S. 629, 633

(1953)).
44

Id. (quoting United States v. Phosphate Export Assn. Inc., 393 U.S. 199, 203 (1968)).

45

Laidlaw, 528 U.S. at 192-193.

46

May 2004 DMR, doc. 72, exh. 87; June 2004 DMR, doc. 124, exhs. 282 and 294.

47

August 2004 DMR, doc. 72, exh. 84, September 2004 DMR, doc. 72, exh. 85.

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based on any requirement of the Clean Water Act.”48 The propriety of the 3,900 mg/l
limit is not before this court. Moreover, defendant could have appealed the 3,900 mg/l
limit for Outfall 001 in the 2003 modified permit, but did not.
Defendant also argues that plaintiffs do not have standing to allege the August
2004 and September 2004 violations of the 3,900 mg/l TDS limit because they did not
provide notice of these alleged violations. Defendant’s argument is unavailing because
plaintiffs do not seek to establish defendant’s liability for the alleged TDS violations in
August and September of 2004. Rather, plaintiffs cite the August and September 2004
DMRs as evidence that “[d]espite having its TDS limits raised by a factor of 20” from
197 mg/l to 3,900 mg/l at Outfall 001, Teck continues to violate the limits for TDS at
Outfall 001. 49
Defendant has admitted the alleged violations of the daily maximum limit for
TDS. Plaintiffs have alleged sufficient facts, about which there is no genuine issue, that
violations of the daily maximum TDS limit were ongoing after plaintiffs filed their
complaint. It follows that plaintiffs’ motion for partial summary judgment is granted as to
the 618 violations of the daily maximum limit for TDS.
2.

618 Violations of the Monthly Average Total Dissolved Solids Limit50

Mine site permit condition I(A)(1) sets a monthly average discharge limit of 170
mg/l per day for TDS. Plaintiffs allege that defendant admitted in its answer in this
litigation that Teck violated the monthly average TDS limit in June 1999, August 1999,
September 1999, May through September of 2000, June through October of 2001, May
through October of 2002, and May through August of 2003, and that Teck admitted in its
answer in the KRPC litigation that it violated the monthly average TDS limit in October
1999, October 2000, and May 2001. Accordingly, plaintiffs move for summary judgment

48

Doc. 100 at 11.

49

Doc. 124 at 57.

50

In their motion, plaintiffs moved for summary judgment on 622 violations of the monthly
average TDS limit. In their reply, plaintiffs withdrew four violations which were alleged in their
motion but not in their complaint.

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establishing defendant’s liability for violating the monthly average TDS limit during 26
months.51
Defendant admits that it violated the monthly average TDS limit in all of the
above-referenced months except October 1999, October 2000, and May 2001.
However, defendant argues that plaintiffs are not entitled to summary judgment on any
violations of the monthly average TDS limit because the violations are not ongoing or
capable of repetition. Defendant specifically argues that the July 2003 modified permit,
which is currently in effect, does not contain a monthly average TDS limit.52
In support of their allegation that violations of the monthly average TDS limit
“were ongoing and continuing after March 8, 2004, the date this suit was filed,”53
plaintiffs cite the August 2004 and September 2004 DMRs, which indicate that
defendant violated the 3,900 mg/l end-of-pipe limit on August 31, 2004, and September
22, 2004. However, violations of the 3,900 mg/l end-of-pipe TDS limit on one day per
month do not demonstrate that violations of the 170 mg/l monthly average TDS limit are
ongoing.
Moreover, plaintiffs do not dispute defendant’s assertion that the 2003 mine site
permit does not contain a monthly average TDS limit. To the contrary, plaintiffs appear
to acknowledge that the 3,900 mg/l limit for TDS at Outfall 001 in the July 2003 modified
permit replaces the196 mg/l daily maximum TDS limit at Outfall 001 in the 1998 NPDES

51

Citing Chesapeake Bay Foundation, Inc. V. Gwaltney of Smithfield, Ltd., 791 F.2d 304,
313-15 (4th Cir. 1986), plaintiffs allege that “[v]iolations of a monthly average limit mean that the
permit was violated on each day the facility discharged in that month.” Consequently, plaintiffs
allege that defendant has committed 618 violations of the monthly average TDS limit. In
Gwaltney, the Fourth Circuit held that for the purpose of fixing an appropriate civil penalty under
33 U.S.C. § 1319(d), “violations of ‘average’ limitations encompassing periods greater than one
day are to be treated as a violation for each day of the time period involved.” Plaintiffs’ motion
for partial summary judgment concerns liability only. If Teck is found liable for any of the alleged
violations, an evidentiary hearing will likely be held to determine the appropriate amount of
penalties and/or other relief. Consequently, the court reserves judgment on the issue of
whether violations of the monthly average limit mean that the permit was violated on each day
the facility discharged in that month.
52

Doc. 6 at 19.

53

Doc. 124 at 46.

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permit. In their reply memorandum, plaintiffs specifically state that Teck “still has an
end-of-pipe permit limitation under the 2003 permit, of 3900 mg/L at Outfall 001" and
that “[t]he 196 mg/L limit was not changed to in-stream, it was raised to 3900 mg/L.”54
Plaintiffs do not provide any evidence that the 3,900 mg/l limit for TDS in the July
2003 modified permit was intended to serve as both the daily maximum limit and the
monthly average limit. Instead, the evidence shows that where there is both a daily
maximum limit and a monthly average limit for a particular parameter in the 1998 and
2003 mine site permits, the monthly average limit is lower than the daily maximum limit.
Morever, where the EPA has intended to impose a monthly average limit in the NPDES
permits, it has used the words “monthly average” limit. Here, the plain language of the
2003 permit states in pertinent part, “In addition to the above limitations the TDS
concentration at Outfall 001 shall not exceed 3,900 mg/l.”55
Because plaintiffs have failed to demonstrate that violations of the monthly
average TDS limit are ongoing or capable of repetition, plaintiffs’ motion for summary
judgment is denied as to the 618 alleged violations of the monthly average TDS limit.
3.

16 Violations of the Cyanide Daily Maximum Limit

Teck’s 1998 mine site NPDES permit limits cyanide to a daily maximum
concentration of 9.0 µg/l. Plaintiffs complaint alleges that defendant exceeded the daily
maximum limit for cyanide on the following dates: May 22, 1999; May 25 and 29, 2000;
June 10, 13, and 24, 2000; June 14 and 18, 2001; July 22 and 30, 2001; August 13, 16,
20, and 27, 2001; June 10, 2002; and, September 30, 2002. Plaintiffs assert that the
daily violations listed above are confirmed by defendant’s DMRs for the corresponding
months. Plaintiffs withdrew the violation alleged on May 22, 1999, and now move for
summary judgment establishing Teck’s liability for the remaining fifteen violations.
Defendant does not dispute the alleged violations of the daily limit for cyanide on
May 25 and 29, 2000, June 13 and 24, 2000, June 14 and 18, 2001, July 22 and 30,

54

Doc. 124 at 47.

55

Doc. 72, exh. 71 at 8.

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2001, August 16 and 27, 2001, and June 10, 2002,56 but argues that amended DMRs
show no violations on June 10, 2000, August 13 and 20, 2001, and September 30,
2002. Defendant does not cite any controlling authority for its proposition that a
defendant has a “right to amend its DMRs when laboratory error caused defendant to
over-report effluent discharge when such error shows there was, in fact, no violation.”57
To the contrary, defendant acknowledges that in Sierra Club v. Union Oil Company, the
Ninth Circuit ruled “that a permittee could not impeach its own reports by showing
sampling error.”58
Defendant next argues that plaintiffs are not entitled to summary judgment on
any of the alleged violations of the daily maximum cyanide limit on the grounds of
regulatory mootness. Defendant alleges that plaintiffs’ claims are moot because the
draft 2006 NPDES permit does not contain an effluent limit for cyanide or require Teck
to use the total cyanide analytical method for monitoring cyanide. As discussed above,
defendant’s argument of regulatory mootness based on anticipated changes in the
NPDES permit is premature. Moreover, even if the court assumes the renewed permit
will moot plaintiffs’ claims for injunctive relief related to violations of the daily maximum
cyanide limits, the court could still impose civil penalties for any violations that have
already occurred, provided the violations are ongoing or capable of repetition.59
Finally, defendant argues that plaintiffs cannot meet their burden of
demonstrating that violations of the daily maximum cyanide limit are ongoing. Citing the
September 2004 DMR, plaintiffs allege that Teck “reported two separate violations of
the cyanide daily standard, measured by two separate labs, in September 2004, long
after this suit was filed.”60 Plaintiffs are apparently referring to two split samples which

56

Opposition at 55, doc. 100.

57

Opposition at 36, doc. 100.

58

Doc. 100 at 37 (citing Sierra Club v. Union Oil Co. Of California, 813 F.Supp. 1480,
1492 (9th Cir. 1987)).
59

Laidlaw, 528 U.S. at 192-193.

60

Doc. 124 at 63.

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were reported in Table A of the September 2004 DMR. Table A, which sets forth the
results of an expanded cyanide sampling program in September 2004,61 indicates that
five samples for cyanide testing were taken during September 2004, four of the five
samples were split between two separate laboratories, and three of the five samples
were split again with half of these samples being treated to remove sulfides. The
results of a split sample for September 19, 2004, indicate that one lab found a cyanide
concentration of 17.0 µg/l, whereas the other lab found 3.18 µg/l. Similarly, the results
of a split sample for September 26, 2004, indicate that one lab found a cyanide
concentration of 7.0 µg/l, whereas the other lab found 12.4 µg/l.
Defendant argues that contrary to plaintiffs’ allegation, Teck did not report any
violations of the daily cyanide limit in the September 2004 DMR. The September 2004
DMR states that “[a]ll monitored parameters were within permitted limits during
September 2004.”62 Defendant further argues that the conflicting results of the split
samples for September 19 and 26, 2004, do not establish ongoing violations of the daily
maximum limit for cyanide, but rather raise a genuine issue of material fact as to
whether the violations are ongoing. The court agrees.
Because there is a genuine issue of material fact as to whether violations of the
daily maximum cyanide limit are ongoing, plaintiffs are not entitled to summary
judgment as to the fifteen alleged violations of the daily maximum cyanide limit.
4.

418 Violations of the Cyanide Monthly Average Limit

The 1998 mine site NPDES permit sets a monthly average limit for cyanide of 4.0
µg/l. Plaintiffs’ complaint alleges that Teck reported violations of the monthly average
cyanide limit in June 1999, July 1999, August 1999, September 1999, May 2000, June
2000, July 2000, September 2000, October 2000, June 2001, July 2001, August 2001,
September 2001, May 2002, June 2002, and September 2002. Plaintiffs also allege
that violations of a monthly average limit mean that the limit was violated each day Teck

61

Doc. 100, attachment 2, exh. 2 at 1-2.

62

Id. at 1.

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operated in that month. Consequently, plaintiffs move for summary judgment on a total
of 418 monthly average cyanide violations.
Defendant argues that the alleged violations of the monthly average cyanide limit
are moot because the draft 2006 NPDES permit does not contain an effluent limit for
cyanide and does not require Teck to use the total cyanide analytical method for
monitoring cyanide. As discussed previously, defendant’s argument of regulatory
mootness is premature.
Defendant next argues that plaintiffs have failed to establish that violations of the
monthly average cyanide limit are ongoing. The only evidence plaintiffs offer to
demonstrate ongoing violations is Table A in the September 2004 DMR. Plaintiffs
allege that averaging all of the lab results that were not fixed for sulfide in Table A yields
a value of 5.13 µg/l, averaging all the NCA laboratory results that were not fixed for
sulfide yields an average of 4.434 µg/l, and averaging all of the ACZ laboratory results
that were not fixed for sulfides yields an average of 6.0 µg/l, all of which are over the
permit limit of 4.0 µg/l.
Defendant asserts that the September 2004 DMR does not provide evidence of
ongoing violations of the monthly average cyanide limit because the September 2004
DMR states that “[a]ll monitored parameters were within permitted limits during
September 2004.”63 Defendant also produces testimony that there have been “no
reported monthly average cyanide permit violations since May 2000.”64 In addition,
defendant suggests that the two highest split sample results reported in Table A are
aberrations, which are grossly over the other split sample results, and that removing
them from the calculation of the monthly average yields a result under 4.0 µg/l.
Moreover, defendant argues that the EPA set 9.0 µg/l as the only enforceable
monthly average cyanide limit. In September 2004, the 2003 modified NPDES permit
was in effect. The 2003 modified permit, like the 1998 NPDES permit, sets a monthly

63

Doc. 100, exh. 2, attachment 2 at 1.

64

Affidavit of Mark Thompson Regarding Plaintiffs’ Cyanide Claims at 10, exh. 2, doc.

100.

-18-

average cyanide limit of 4.0 µg/l. However, both permits also state that effluent limits for
cyanide are not quantifiable using EPA approved analytical methods and that the EPA
will use the “Interim Minimum Level” of 9.00 µg/l as the “compliance evaluation level.”65
Based on the above language, defendant argues that the compliance level set by the
EPA for the monthly average cyanide limit is 9.0 µg/l, not 4.0 µg/l.
Because defendant has raised genuine issues of material fact as to whether the
violations of the monthly average cyanide limit are ongoing or capable of repetition,
plaintiffs are not entitled to summary judgment as to the 418 alleged violations of the
monthly average cyanide limit.
5.

4 Violations of the Whole Effluent Toxicity Reporting Requirement

The 1998 mine site NPDES permit, section I(H), requires defendant to perform
toxicity tests “once per month on samples from the effluent, and on ambient water from
Stations 9 and 12.”66 Section I(H)(4) further requires defendant to report the results of
WET testing in the DMR “for the month in which the tests are conducted” and that a full
report “be submitted by the end of the month in which the DMR is submitted.”67
Plaintiffs allege that Teck violated mine site permit section I(H)(4) by “not reporting the
results of required WET testing, or by reporting the results of incomplete or inadequate
WET testing” in August 1999 for Outfall 001, Station 9, and Station 12, and in August
2001 for Outfall 001.68
Defendant does not dispute the alleged reporting violations in August 1999, but
provides evidence that no reporting violation occurred in August 2001. Defendant also
argues that plaintiffs are not entitled to summary judgment on any of the alleged
violations because plaintiffs have not met their burden of showing that the violations are
ongoing. The court concurs. The only evidence plaintiffs offer to demonstrate ongoing
WET reporting violations is the May 2004 DMR, in which Teck reported the results of a
65

Doc. 72, exh. 70 at 9; exh. 71 at 6.

66

Doc. 72, exh. 70 at 19-20.

67

Id. at 21.

68

Doc. 26 at 17.

-19-

grab sample for TDS, instead of a composite sample for TDS. Contrary to plaintiffs’
assertion, a TDS reporting violation is not “identical” to a WET reporting violation.69
Because plaintiffs have failed to provide evidence that the alleged WET reporting
violations were ongoing when they filed their complaint, plaintiffs are not entitled to
summary judgment as to the four alleged WET reporting violations.
6.

9 Violations of the Daily Whole Effluent Toxicity Limit

Section I(H)(5) in the 1998 mine site NPDES permit sets a maximum daily limit
for WET of 12.2 TUc. Plaintiffs’ complaint alleges that Teck “exceeded the maximum
daily limit for WET, and thus violated mine site permit condition I(H)(5), in May 1999,
June 1999, July 1999, August 2000; on August 16, 18, and 20, 2001; in August 2002;
and in September 2002 (2 violations).”70 In their motion for summary judgment, plaintiffs
allege that Teck admitted the August 2001 violation in this litigation, “admitted to the
violation in July 1999 (on the 13th, 15th, and 17th)” in the previous litigation, and “admitted
to the EPA that it violated the WET daily limit on seven other occasions, for a total of
nine violations of the WET daily limit.”71
Defendant argues that revised DMRs “rebut plaintiffs’ claims of any violations of
the daily maximum WET limits for May 1999, June 1999, July 13, 1999, August 2000,
and September 2002.”72 Defendant further argues that plaintiffs are not entitled to
summary judgment on any of the alleged violations of the daily maximum WET limit
because plaintiffs have failed to demonstrate that the violations are ongoing.
Plaintiffs allege that the August 2004 DMR shows a violation of the daily
maximum WET limit on August 3, 2004. However, the August 2004 DMR states that

69

Doc. 124 at 74. See Sierra Club v. Union Oil Company of California, 716 F.Supp. 429,
433 (N.D. CA 1989) (“The court will find a violation ‘ongoing’ by comparing self-reported
exceedances before the complaint was filed and afterwards. If the same parameter is
exceeded, or a violation recurs and the cause has not been completely eradicated, then the
violation will be deemed ‘ongoing’ and liability will attach.”)
70

Doc. 26 at 17-18.

71

Doc. 72 at 30.

72

Doc. 100 at 67.

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WET test results for August 2004 “were within the permitted limits.”73 Table C in the
DMR sets forth the results of a split sample on August 3, 2004, which was sent to two
laboratories. The test results from one laboratory (ENSR) show a WET concentration of
9.28 TUc at Outfall 001, which is under the daily maximum WET limit of 12.2 TUc. The
results from the other laboratory (CH2M Hill) show a concentration of 13.6 TUc at
Outfall 001, which is over the daily maximum WET limit.74
Defendant offers evidence that Kevin Brix, Principle Scientist at EcoTox, also ran
a WET test on a single aliquot from the August 3, 2004, sample used by ENSR, which
yielded a result of 5.6 TUc.75 Defendant argues that at a minimum, there is a genuine
issue of material fact as to whether the CH2M Hill WET test result for August 3, 2004,
demonstrates that the WET violations were ongoing at the time plaintiffs filed their
complaint.76 The court concurs.
For the reasons set out above, plaintiffs’ motion for summary judgment is denied
as to the nine alleged violations of the daily maximum WET limit.
7.

199 Violations of the Monthly Average Whole Effluent Toxicity Limit

Section I(H)(5) of the 1998 mine site permit sets a monthly average WET limit of
9.7 TUc. Plaintiffs’ complaint alleges that Teck exceeded its monthly average WET limit
in May 1999, June 1999, July 1999, August 2000, August 2001, August 2002, and
September 2002, and that “[v]iolations of a monthly average limit mean that the permit
was violated on each day the facility operated that month.”77 In their motion for
summary judgment, plaintiffs allege that Teck admitted in its answer that it violated its
monthly average WET limit in August 2001, and “admitted to [the] EPA that it violated its
monthly average permit limit in six other months: May 1999, June 1999, July 1999,

73

Doc. 100, attachment 4, exh. 1.

74

Doc. 72, exh. 84 at 1.

75

Declaration of Kevin Brix at 5, exh. 4, doc. 100.

76

Doc. 100 at 67.

77

Doc. 26 at 18.

-21-

August 2000, August 2002 and September 2002.”78 Based on the proposition that
“[v]iolations of a monthly average limit mean that the permit was violated on each day
the facility discharged in that month,” plaintiffs allege that Teck violated its monthly
average WET limit 199 times.
Defendant alleges that plaintiffs are not entitled to summary judgment because
they have failed to demonstrate that violations of the WET monthly limits are ongoing.
The court concurs. The only evidence plaintiffs offer in support of their allegation that
the violations are ongoing is the August 2004 DMR, which lists the results of a split
sample collected on August 3, 2004. Without citing any authority for doing so, plaintiffs
arrive at a monthly average for August 2004 by averaging the results of a split sample
for one day. Moreover, as discussed above, defendants offer evidence which suggests
that the lower split sample result is more plausible than the higher split sample result.
Because plaintiffs have failed to allege sufficient facts, about which there is no
genuine issue, that violations of the monthly average WET limits are ongoing, plaintiffs
are not entitled to summary judgement on the 199 alleged violations of the monthly
average WET limit.
8.

3 Unpermitted Mine Site Discharges to the Tundra

Plaintiffs allege that they are entitled to summary judgment as to defendant’s
violation of Section I(C)(2) of the mine site NPDES permit by discharging to the tundra
on May 19, 22, and 23, 2002, when the pumping system was overtopped. Defendant
argues that the unpermitted discharges on May 19, 22, and 23 are excused under
40 C.F.R. § 440.131(b) because the discharges occurred “as the result of excessive
snow melt that generated more melt water than had been estimated when the pumping
system was designed.”79 Defendant argues that by implementing an overburden
pumping system to handle runoff from a “100-year/24-hour precipitation event,”
successfully minimizing the amount of overflow experienced in May 2002, and properly
notifying the EPA of the overflows, Teck “meets the requirements for the storm

78

Doc. 72 at 82.

79

Doc. 100 at 69.

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exemption and is entitled to the affirmative defense to enforcement that the storm
exemption was designed to provide.”80 Defendant further alleges that it has put systems
and procedures in place to prevent the reoccurrence of an unpermitted discharge from
the overburden dump collection area and that no unpermitted discharges have occurred
since May 2002.
Plaintiffs argue that 40 C.F.R. § 440.131(b) is not applicable here because
Section 440.131(b) only allows exceedances of permitted discharges in upset conditions
and no discharge of tailings water to the tundra are permissible under the mine permit.
Plaintiffs also argue that the unpermitted discharges at the mine site are capable of
repetition. In support, plaintiffs point to defendant’s unpermitted discharge at the port
facility because of snow melt in May 2005. Plaintiffs’ argument is unavailing because
the alleged violations involved two distinct facilities, permits, and permit parameters. In
addition, it appears that the actions defendant took to prevent overtopping of the
pumping system at the mine site have remedied the problem. Defendant has submitted
evidence that no unpermitted discharges have occurred at the mine site since 2002, two
years before plaintiffs filed their complaint.
For the reasons stated above, plaintiffs’ motion for partial summary judgment is
denied as to the three alleged unpermitted mine site discharges to the tundra on May
19, 22 and 23, 2002.
9.

5 Mine Site Monitoring and Reporting Violations

Plaintiffs initially moved for summary judgment on five mine site monitoring and
reporting violations, but withdrew one selenium reporting violation and three ambient
monitoring violations. Plaintiffs now move for summary judgment on their claim that
Teck “violated permit condition I(C)(4) by failing to record the volume of mine drainage
pumped on July 12, 2001.”81 Permit condition I(C)(4) requires that “[w]hen water in the
Dirty Water Sump is pumped into the tailings impoundment, the pumped volume shall

80

Doc. 100 at 72.

81

Doc. 26 at 22.

-23-

be recorded. The total volume for each month shall be recorded and reported with the
DMR for that month.”82
Defendant argues that no violation occurred because it timely reported the
information required under permit condition I(C)(4) in its July 2001 DMR, namely it
reported the total volume pumped for the month of July 2001. Plaintiffs suggest that a
reporting violation occurred when Teck failed to record the volume pumped on July 12,
2001. The evidence on record shows that: 1) Teck’s database contained the daily totals
of water pumped for each day in July 2001, except for July 12, 2001; 2) Teck estimated
the July 12, 2001, pump rate based on the average of the July 11 and 13, 2001, pump
rates; 3) Teck reported the volume pumped in its July 2001 DMR using the estimated
rate for July 12, 2001; 4) Teck subsequently recalculated the daily pumped volume for
July 12 using five-minute readings recorded for July 12, which resulted in a monthly
volume figure .03 percent lower than the monthly volume using the estimate for July 12,
2001; and 5) Teck reported this information in an amended DMR.
Based on the evidence on record, the court finds that Teck met its reporting
requirements under permit condition I(C)(4) and that no violation occurred on July 12,
2001. Plaintiffs’ motion for summary judgment is denied as to the July 12, 2001,
reporting claim, and the claim is dismissed.83
D.

VIOLATIONS OF THE PORT SITE NPDES PERMIT
1.

2 Unpermitted Discharges at the Port Site

Plaintiffs move for summary judgment on two unpermitted discharges at the port
site on May 9 and 10, 2002. Plaintiffs allege that the port facility experienced a 100gallon leak from a pipeline on May 9, 2002, and a resultant 1,000-gallon run-off of
untreated water to the tundra on May 10, 2002. Defendant admits the two unpermitted

82

Doc. 72, exh. 70 at 12.

83

“[I]f one party moves for summary judgment and, at the hearing, it is made to appear
from all the records, files, affidavits and documents presented that there is no genuine dispute
respecting a material fact essential to the proof of movant’s case and that the case cannot be
proved if a trial should be held, the court may sua sponte grant summary judgment to the nonmoving party.” Cool Fuel, Inc. v. Connet, 685 F.2d 309, 310 (9th Cir. 1982).

-24-

discharges, but argues that plaintiffs are not entitled to summary judgment because
plaintiffs make no showing “that a 100-gallon leak of treated water that occurred three
years ago from an accidentally damaged (and later repaired and replaced) section of
port site pipeline is capable of repetition.”84 Defendant also argues that plaintiffs have
not presented any evidence that unpermitted discharges to the tundra at the port site
are capable of repetition.
Plaintiffs argue that an unpermitted discharge at the port site in May 2005, which
exceeded permit limits, is evidence that unpermitted discharges at the port facility are
capable of repetition. The court concurs. The discharge of water requiring emergency
bypass at the port site in May 2005, which caused effluent limitations to be exceeded, is
evidence that the risk of defendant’s continued violation had not been “completely
eradicated when citizen-plaintiffs filed suit.”85
For the reasons set out above, plaintiffs’ motion for summary judgment is granted
as to the two unpermitted discharges at the port site on May 9 and 10, 2002.
2.

1 Violation of the Daily Maximum Discharge of Total Suspended
Solids Permit Limit

Defendant admits that it violated port site permit condition I(B)(5), which limits
daily maximum discharge of TSS, in May 2002. Defendant further acknowledges that it
has consistently observed elevated TSS concentrations in the port site effluent for
approximately two weeks every spring. Defendant states that the reasons for the
elevated TSS concentrations are unknown, but that it suspects that “the annual elevated
TSS occurs due to the natural introduction of constituents to port site runoff during
spring breakup.” 86 As defendant admitted both the TSS violation and the fact that it is
ongoing, plaintiffs’ motion for summary judgment is granted as to the port site TSS
violation in May 2002.

84

Doc. 100 at 81.

85

Union Oil, 853 F.2d at 667 (quotation and citation omitted) (emphasis in original).

86

Doc. 100 at 87.

-25-

3.

2 Port Site Monitoring Violations

Plaintiffs move for summary judgment on two monitoring violations at the port
site. Plaintiffs allege that defendant failed to analyze weekly samples for coliform on
two occasions in February 1999. In their reply brief, plaintiffs concede the two
monitoring violations because they were not alleged in plaintiffs’ complaint. Plaintiffs’
motion for partial summary judgment is denied as to the two port site monitoring
violations.
E.

VIOLATIONS OF THE COMPLIANCE ORDERS BY CONSENT
Between the effective date of the 1998 mine site NPDES permit and the date

plaintiffs filed their complaint, the EPA issued four Compliance Orders by Consent
(“COBC”) extending Teck’s schedule for compliance with the 170 mg/l average monthly
and 196 mg/l daily maximum limits for TDS set out in the 1998 mine site permit.
Plaintiffs’ complaint alleges that the COBC was “issued by the EPA on July 1, 1999,
and modified most recently on May 17, 2002,”87 and that Teck violated the “Mine
Consent Order by exceeding the discharge limits at Station 7 at least 5 times, by
exceeding the discharge limits at Station 10 at least 45 times, by failing to monitor as
required at least 2 times, and by failing to report as required at least 12 times, for a total
of 64 violations of the Mine Consent Order.”88
Plaintiffs originally moved for summary judgment on 48 violations of the COBCs
at Stations 7 and 10. Of the 48 alleged violations, plaintiffs withdrew six alleged
violations which occurred in June 1999 before the COBC took effect, and reserved four
violations for trial (October 1, 1999, July 7, 2000, and June 3 and 6, 2002).

Plaintiffs

now request summary judgment on the remaining 38 violations.
Defendant first argues it cannot be held liable for violations of both the NPDES
permit and related COBCs. Without citing any authority, defendant argues that “[i]f this
Court determines that Teck Cominco is liable for violations of its NPDES permit, this

87

Doc. 26 at 26.

88

Doc. 26 at 27.

-26-

Court is estopped from also finding Teck Cominco liable for violations of its COBCs.”89
Defendant specifically alleges that the “doctrine of preclusion of inconsistent positions”
precludes plaintiffs from alleging that “the NPDES permit remains in effect despite the
subsequent COBCs” and “then taking the position that the COBCs supersede the permit
and that [Teck] should be liable for the 48 alleged violations of [Teck’s] COBC.”90
Based on the plain language of the compliance orders, plaintiffs argue that the
COBCs and the NPDES permit impose independent requirements and that Teck must
comply with the requirements in both the COBCs and in the NPDES permit. Each
COBC states that “[v]iolations of, or failure to comply with, the provisions of this
Modified Order may subject [Teck] to (1) civil penalties of up to $27,500 per day of
violation pursuant to Section 309(d) of the Act, 33 U.S.C. § 1319(d), and 40 C.F.R. Part
19[.]” Each compliance order also states, “Nothing in this Modified Order shall be
construed to relieve [Teck] of the requirements of its NPDES permit.”91
In addition, the plain language of 33 U.S.C. §1319(d) suggests that civil penalties
are available for violations of both an NPDES permit and an order issued by the EPA.
Section 1319(d) provides in pertinent part: “Any person who violates...any permit
condition or limitation...and any person who violates any order issued by the
Administration under subsection (a) of this section, shall be subject to a civil penalty not
to exceed $25,000 per day for each violation.”
Because the COBCs explicitly state that violations of the COBCs may subject
Teck to civil penalties under the Clean Water Act and that the COBCs do not relieve
Teck of the requirements of its NPDES permit, the court finds that defendant may be
held liable for violations of both an NPDES permit and a COBC in effect at the time of
the alleged violations, provided the violations are ongoing or capable of repetition.
Defendant next argues that plaintiffs do not have standing to pursue the alleged
violations of the COBCs, because plaintiffs did not file their complaint until after the last

89

Doc. 100 at 34.

90

Doc. 100 at 20.

91

See e.g., 2002 COBC at 7, doc. 72, exh. 76.

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recorded violations of the COBCs, “the COBCs Teck Cominco allegedly violated are no
longer in effect,” and plaintiffs cannot establish that any of the alleged COBC violations
have “any reasonable probability of reoccurring in the future.”92 The court will consider
whether plaintiffs have met their burden of establishing ongoing violations in its
discussion of each category of violations.
Plaintiffs request the court to enter summary judgment on their claims that Teck
violated the COBC limits for TDS at Station 7 on the following dates: July 27, 1999, July
25, 2001, and August 27, 28, and 29, 2001. Defendant admits the violations of the
COBC limits for TDS at Station 7 (now Station 160) on August 27, 28, and 29, 2001, but
argues that plaintiffs are not entitled to summary judgment on any of the alleged
violations because plaintiffs have failed to demonstrate that the violations at Station 7
are ongoing or capable of repetition. The COBCs at issue limit in-stream TDS
concentrations at Station 7 to 500 mg/l from July 25 through August 31 for the 1999
discharge season and from July 25 through September 15 for the 2001 discharge
season. The 1998 NPDES permit in effect when plaintiffs filed their complaint did not
contain in-stream limits for TDS. The 2003 modified permit currently in effect limits instream TDS concentrations at Station 160 (formerly Station 7) to 500 mg/l from July 25th
through the end of the discharge season.93
Having carefully reviewed the record, the court finds that plaintiffs have not
provided any evidence that violations of the 500 mg/l limit for TDS at Station 7 (now
Station 160) continued on or after the date their complaint was filed, nor any evidence
from which a reasonable trier of fact could find a continuing likelihood of a recurrence in
intermittent or sporadic violations. Plaintiffs suggest that evidence that Teck violated
the 3,900 mg/l end-of-pipe TDS limit in the 2004 COBC supports their argument that
COBC violations are ongoing or capable of repetition. However, violations of the 3,900
mg/l end-of-pipe TDS limit at Outfall 001 do not demonstrate that violations of the 500
mg/l in-stream TDS limit at Station 160 (formerly Station 7) are ongoing or capable of

92

Doc. 100 at 31.

93

Doc. 72, exh. 71 at 8.

-28-

repetition. Accordingly, the court denies plaintiffs’ motion for summary judgment as to
the alleged COBC violations at Station 7 on July 27, 1999, July 25, 2001, and August
27, 28, and 29, 2001.
Plaintiffs’ next request summary judgment on their claims that Teck violated the
COBC limits for TDS at Station 10 on the following dates: July 1-9, 14-15, and 17-18,
1999; September 12, 1999; October 5, 1999; June 22-28, 2000; July 5-6, 8, and 11,
2000; May 28-29, 2002; and June 24, 2002.94 The COBCs at issue limited in-stream
TDS concentrations at Station 10 during the 1999, 2000, 2002, and 2003 discharge
seasons. The COBCs all state in pertinent part that Teck shall limit the TDS discharged
in its wastewater to maintain in-stream TDS concentrations at or below 1,500 mg/l at
Station 10 “during the entire discharge season, except for temporary increases above
1,500 mg/l for no more than 48 hours in any 10-day period, provided that in no instance
shall the TDS concentration exceed 1,600 mg/l.”95
The 1998 mine site permit in effect at the time the complaint was filed did not
contain an in-stream limit for TDS at Station 10. The 2003 permit currently in effect sets
a limit at the edge of the mixing zone in Main Stem Red Dog Creek of 1,500 mg/l from
the end of grayling spawning season through the end of the discharge season, and
requires TDS monitoring at Station 10 once a week “as close in time as practicable to
one of the sample events collected at the edge of the mixing zone in Main Stem Red
Dog Creek.”96 The Main Stem Red Dog Creek mixing zone “begins at the confluence of
North Fork Red Dog Creek and Middle Fork Red Dog Creek and continues downstream
for 1,930 feet.”97 Station 10 is “located on the Main Stem Red Dog Creek a short
distance upstream of the confluence with the Ikalukrok Creek” about two miles

94

Plaintiffs also allege Teck violated the TDS limits at Station 10 on October 1, 1999, July
7, 2000, and on June 3 and 6, 2002, but reserve those violations for trial.
95

Doc. 72, exh. 73 at 3, exh. 74 at 4, exh. 76 at 5.

96

Doc. 72, exh. 71 at 8.

97

Doc. 72, exh. 71 at 7.

-29-

downstream of the confluence of the North Fork Red Dog Creek and Middle Fork Red
Dog Creek.98
While defendant admits some of the past violations at Station 10, defendant
argues that plaintiffs are not entitled to summary judgment on any the alleged violations
of the applicable COBCs at Station 10 because the COBCs that implemented the limits
at Station 10 are no longer in effect and the 2003 permit currently in effect does not
contain the same limitations. Defendant further argues that plaintiffs have not
demonstrated that violations of the 1,500 mg/l TDS limit at Station 10 are ongoing. The
court concurs. Plaintiffs do not offer any evidence demonstrating that violations of the
1,500 mg/l TDS limit at Station 10 are ongoing, rather plaintiffs simply allege that
because Teck “has repeatedly violated the 1500 mg/l in-stream limitation at Station 10,
these violations are capable of repetition.”99
Because plaintiffs have failed to demonstrate that violations of the COBC limits
for TDS at Station 10 are ongoing or have any reasonable probability of reoccurring in
the future, plaintiffs are not entitled to summary judgment on their claims related to
violations of the COBC limits for TDS at Station 10.
F.

PENALTIES
Plaintiffs request the court to find that defendant is subject to civil penalties of up

to $27,500 for each day of violation and further request the court to levy the above
amount against defendant at the penalty phase. Because plaintiffs’ motion for partial
summary judgment concerns liability only, the court reserves judgment on the
appropriate amount of penalties and/or other relief.

V. CONCLUSION AND ORDER FOR STATUS REPORT
For the reasons set out above, plaintiffs’ motion for partial summary judgment at
docket 72 is GRANTED IN PART and DENIED IN PART as follows. Plaintiffs’ motion
for partial summary judgment is GRANTED and defendant’s liability is established as to

98

Doc. 72, exh. 73 at 2; exh. 71 at 48.

99

Doc. 100 at 97.

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the 618 violations of the daily maximum limit for TDS, two unpermitted discharges at the
port site on May 9 and 10, 2002, and one port site TSS violation in May 2002.
Plaintiffs’ motion for partial summary judgment is DENIED as to the 618
violations of the monthly average TDS limit, fifteen violations of the daily maximum
cyanide limit, 418 violations of the monthly average cyanide limit, four WET reporting
violations, nine violations of the daily maximum WET limit, 199 violations of the monthly
average WET limits, three unpermitted discharges to the tundra at the mine site on May
19, 22, and 23, 2002, one mine site reporting claim on July 12, 2001, two port site
monitoring violations, and 38 violations of the COBCs. The court declines to address
any penalty issue at this time. In addition,
IT IS ORDERED that the mine site reporting claim on July 12, 2001, is
DISMISSED.
Complete resolution of this case appears to require trial as to the remaining
disputed violations and the appropriate remedy. The court is of the preliminary view
that there should be separate trials of the two issues. The court also considers it
possible that the first issue might be amenable to settlement–especially given the high
cost of resolving so many alleged violations at trial. The court is less sanguine about
the possibility of a settlement with respect to the remedy. In any event, in order to draw
this case to a conclusion, the court needs further input from the parties. Therefore,
IT IS FURTHER ORDERED that on or before August 18, 2006, the parties shall
file a joint status report which advises the court of the following:
1) What further tasks, if any, remain to be completed by the parties before
the court issues a standard final pre-trial order calling for identification and
marking of exhibits, objections to exhibits, final trial witness lists, trial
briefs, etc.
2) The prospects for settling some or all of the remaining alleged
violations and remedy issues.
3) The parties’ views regarding separate trials as to (a) the remaining
unresolved alleged violations and (b) the remedy or remedies.

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4) The length of time the parties’ estimate for each trial of the two trials if
the court determines to separate the issues as suggested above, and the
parties’ estimate for the length of trial if a single trial is to be conducted.
DATED at Anchorage, Alaska, this 28th day of July 2006.

/s/
JOHN W. SEDWICK
UNITED STATES DISTRICT COURT JUDGE

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