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46 e:o FED6ttAL REPOSTEB, 2d BBRIEB Despite the lsrge opacity (16[4,000 gal- lon for the reserve sump) ws view tbie opent(on ae a elaed circulating system to serve the gold axtreation proveas w[th no diaeharge. YiRten 1t fails because of flaws is the eonettvetlon or Inadequate sire to handle the fluids utnlsed, with resultlrtg diaeharge, whether fmm a fu- sure in the dirt berm or overflow of a well, the escape of ifquld from the eon- finad system is from a point scares. Al- though the aouree of the eioaes liquid ie rainfall or enaw mol; this fa not the load of general runoM oowidared to be front nonpoint eourooe seder the [Act]. 699 F.2d at 874. The aouR aLo ejected deteadant'a oon- teadon that the Aet coven only the intea: band diaaherge of pollutanp into navigable water. Section 1898(11, the court noted, "defies dieeharge of pollutanb u'any ad- dltlon vt a4Y pollutant to navigable water from any point scares."' Id. (mart's em- phaels). Thus, the court held shat even uniateationa] diaehargea of pol]utante from s min system duignad to catch ntnott during periods of exaew melting met the etatuWry def(nitioa of a point scare. [6] Under the view of the law adopted here, there tenets genuine faun of meterl- tl fact Viewed in a light moat favorable to Sierra Clnb, the party opposing the motion for summary judgment Adirkea v. S H. Kress ~ lb., 898 U.S. 144, 157, 90 B.Ct 1688, 1808, >'8 L.Ed2d 142 {1970), the atfi- davita and dapoeitiona considered by the district court iadieate that slgnitirsnt smounta of dirt, Band and other solid partl- elea wen tnmported from the spoil banks by rainwater to Daniel Creek. Earl Bailey, a Sierra Club vice pnaldeat end a professor at tba Unlvenfty of Alsbama, testified by sffldsvit that he observed gullies and ditches running down the sides of steep spoil piles created by Ab- sWn Construction Company. The sedi- mentation end poUuten4 are carried through these discernible, confined and dist.rete conveyances to Dsniel Creek. BsUey's obxrvatlons of ditches find gullies Here confirmed by Philip Abston, president of the AbsWn Construction Co., who noted that the gullies would carry water and sedi- ment Wward the creek. Dwigbt Hicks, who roved u defendant Drummond Co.Y manager of reclamatloa and envieonmental control, t~Nfied that is some areas, drainage buim were conatructr ed io eatoh.aedlment flowlag down the out- er edges of the spoil piles. Hleks noted the buim were mnetructed slong ^ "drainage scares," by placing asrehan material on the lower end of a slops. He described rnn• atruction of the "H-Y3" dam as follows: [T]hat4 just the general type dam section that is put into the small drainage scans with a standp[pe sod m emergency spill- ~y The material 4 elthor pushed la or hauled in after residual vegetation L re- moved. It i. eompaeted and a eundplpa, the primary mean of outflow, to Install- ed, and ehea as emergency epUlway b by11t srouad the side of 1t Hicks added that is the areal of a meuun- ble amount of peec[pttation, water and small amonMs o? sediment would drain through the sediment Fula outflow. An affidavit fUed by Qarry Drummond, president of defendant Drummond Co. fn support of its motion for summary Judg- ment coataim starkly aontrsaeing !so- ~~ Neither oomparyy has engaged 1a the operation of any discernible, confined and discrete oonveyanoe, including but not United to any pipe, ditch, ehsnnel, tunnel, conduit, wall, discreu fiestas, container, rolling stark, concentrated seine! feeding operation oc vessel or other floating colt from which pollutants ere or may be dis- charged. Neither company hu dueharged any pollutant including aurfaee water runoff into Daniel Creek or the tributaries of the same during the period of operation ae noted hereinsbove. On some oceaalons, according to the vsri- ous aftidavlts and dapoeitiose, severe ro1n- tell caused some of the sediment basins to OYOfIIOW, apllllRg out their oontenb, and 1 S'90LA LEA EOE ~'1d30 MVO ~VO~ W'Ad ~ lL:tl 46-9 -Z '0~ 9NINIW 1tl0~ W+itd:AB 1N3S