Full opinion text
MEMORANDUM OPINION HANSEN, District Judge. THIS MATTER comes before the Court on Defendant Gold Fields Mining Corp.’s motion to dismiss counts 1-4, filed August 15, 1994 (Docket No. 12), Defendants’ motion to dismiss counts 3 and 4, filed September 23, 1994 (Docket No. 23), Defendants’ motion for partial summary judgment on count 1, filed November 7,1994 (Docket No. 31), Plaintiffs’ motion to strike affirmative defenses, filed November 21, 1994 (Docket No. 37), Defendants’ motion for summary judgment on count 2, filed March 7,1995 (Docket No. 145), Defendants’ motion for summary judgment on count 5, filed March 7, 1995 (Docket No. 147), Defendants’ (second) motion for partial summary judgment on count 1, filed March 20, 1995 (Docket No. 151), Plaintiffs’ motion to strike portions of Defendants’ Vandersluis Affidavit, filed May 12, 1995 (Docket No. 176), Plaintiffs’ motion for partial summary judgment on counts 1 and 2 against Defendants LAC Minerals, Inc. and Pegasus Gold Corp., filed March 20,1995 (Docket No. 153), and Plaintiffs’ motion for partial summary judgment on count 3 against Defendants LAC Minerals, Inc. and Pegasus Gold Corp., filed March 20, 1995 (Docket No. 154). Having reviewed the submissions and arguments of the parties, and having thoroughly considered the applicable law in this matter, the Court concludes, as explained below, that Defendant Gold Fields Mining Corp.’s motion to dismiss counts 1^4 is well taken and is granted; that Defendants’ motion to dismiss counts 3 and 4 is granted; that Defendants’ (first) motion for partial summary judgment is granted; that Plaintiffs’ motion to strike Defendants’ affirmative defenses is not well taken and is denied; that Defendants’ motion for summary judgment on count 2 is denied; that Defendants’ motion for summary judgment on count 5 is granted; that Defendants’ (second) motion for partial summary judgment on count 1 is moot; that Plaintiffs’ motion to strike portions of the Vandersluis affidavit is denied; that Plaintiffs’ motion for partial summary judgment on counts 1 and 2 is granted in part and denied in part; and that Plaintiffs’ motion for partial summary judgment on count 3 is moot. Plaintiffs are a local environmental advocacy group and an individual member of that group. On May 25, 1994, they brought a citizen suit under the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1387 (1988 & Supp.1994) (“Clean Water Act” or “CWA”), and the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901-6992k (1988 & Supp.1994) (“RCRA”), against the past and present operators of the Cunningham Hill gold mine in the Ortiz mountains south of Santa Fe. Defendant Gold Fields Mining Corporation (“Gold Fields”) owned and operated the mine until June of 1990. Defendants LAC Minerals, Incorporated (“LAC”) and Pegasus Gold Corporation (“Pegasus”) have owned and operated the mine through a joint venture since that time. Plaintiffs allege that Defendants’ waste pile, a byproduct of mining operations Defendants deposited in the Dolores Arroyo (“Arroyo”) of Dolores Gulch, is the source of “acid mine drainage,” or “AMD.” See Pis.’ 1st Am. Compl. at 1 (“When exposed to air and water, minerals in this waste oxidize and wash from the pile, creating acid mine drainage ..., a liquid of very low pH, and containing ... high concentrations of manganese, aluminum, sulfates, cadmium, copper, nickel, zinc, lead, chromium, and total dissolved solids.”). The waste pile is technically known as “overburden.” Overburden is the worthless layer of soil and rock which must be removed to gain access to the ores or minerals below. In this case, the overburden measures approximately 15 million cubic yards. Plaintiffs seek an order requiring Defendants to obtain appropriate CWA and RCRA permits, to prevent acid mine drainages posing an imminent and substantial endangerment to human health and the environment, to return the overburden (i.e., to “reclaim” the mine by replacing the top layer of rock and soil), and to pay civil penalties to the United States and attorney’s fees and costs. Acid mine drainage, also referred to as acid rain discharge, results from the chemical reaction of sulfide minerals with oxygen in the presence of water. The principal environmental impact of AMD is the acidification of stream water to a point at which the water becomes too acidic to support most aquatic life [and, unless treated, renders water unsuitable] for use in municipal or industrial water supplies. Dorinda G. Dallmeyer, A New Legislative Approach for the Control of Acid Mine Drainage, 17 Ga.L.Rev. 969, 969-70 (1983) (footnotes omitted). AMD is also associated with “an increase in the concentration of metals in the water.” Id. at 970 (footnote omitted). For the purposes of a motion to dismiss, the material allegations of the complaint must be accepted as true. Franklin v. Meredith, 386 F.2d 958, 959 (10th Cir.1967). Dismissal is appropriate only if “it appears beyond doubt that the plaintiff[s] can prove no set of facts in support of [their] claim[s] which would entitle [them] to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). The Court must construe the pleadings liberally and if any possibility of relief exists, the claims should not be dismissed. Gas-A-Car, Inc. v. American Petrofina, Inc., 484 F.2d 1102, 1107 (10th Cir.1973). This Court will grant summary judgment when there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The movant carries the burden of establishing that there are no genuine issues of material fact but may discharge its burden by showing there is an absence of evidence to support the nonmovant’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). Once the movant meets its burden, the burden shifts to the nonmovant to demonstrate a genuine issue for trial on a material matter. Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). In making its summary judgment determination, the Court looks at the pleadings and documentary evidence in the light most favorable to the nonmovant, Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991), and the movant must show beyond a reasonable doubt that it is entitled to summary judgment, Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991). However, once the burden shifts to the nonmovant, that party may not rest on its pleadings but must set forth specific facts showing there is a genuine issue for trial as to those disposi-tive matters for which it carries the burden of proof. Celotex Corp., 477 U.S. at 324, 106 S.Ct. at 2553. If the nonmovant cannot make such a showing after adequate time for discovery, summary judgment is mandated. Id. at 322, 106 S.Ct. at 2552. I. DEFENDANT GOLD FIELDS’ MOTION TO DISMISS COUNTS 1-4 Plaintiffs do not contest the proposition that the permitting and regulatory provisions of RCRA and the Clean Water Act apply only to present owners or operators. Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 59, 108 S.Ct. 376, 382, 98 L.Ed.2d 306 (1987) (wholly past violations not redressable under the CWA’s citizen suit provision); Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1159 (9th Cir.1989) (same in RCRA context). As Gold Fields transferred its interest in the Cunningham Hill mine in 1990 to Defendants LAC and Pegasus, counts 1 through 4 should be dismissed against it. Plaintiffs argue, however, that Gold Fields might retain a present interest in the mine. Their own allegations in the complaint state otherwise: “Gold Fields owned and operated the Cunningham Hill mine ... until June of 1990....” Pis.’ 1st Am.Compl. ¶26; “In June of 1990, Gold Fields transferred the property and mining rights ... to Pegasus Gold Corporation and/or the joint venture.” Id. at ¶ 27. The Court will dismiss counts 1 through 4 against Gold Fields, but grant leave to amend their complaint should Plaintiffs discover some evidence demonstrating that Gold Fields retains any present ownership interest in the mine. II. DEFENDANTS’ MOTION TO DISMISS COUNTS 3 AND 4 Count 3 alleges, in salient part, that Defendants are handling or disposing of hazardous waste without a permit in violation of section 3005 of RCRA, 42 U.S.C. § 6925. Plaintiffs specifically aver that Defendants’ “deposition and maintenance of the mine waste pile at the Cunningham Hill mine causes the generation and discharge to the environment of AMD. AMD is an (sic) hazardous waste.” Pis.’ 1st Am.Compl. ¶ 52. Count 4 states procedural and substantive violations of section 3004 of RCRA, 42 U.S.C. § 6924, and is similarly dependent upon AMD’s characterization as hazardous waste. Both section 6924 and 6925 are part of subtitle C of RCRA, 42 U.S.C. §§ 6921-6939e, a eradle-to-grave regulatory regime imposing command-and-control rules for the handling of hazardous substances. Defendants move to dismiss counts 3 and 4 on the grounds that AMD and the overburden pile, as wastes resulting from the extraction of ores and minerals, are exempt from regulation under subtitle C. On October 21, 1980, Congress enacted the “Bevill amendment” to RCRA, temporarily exempting certain “special wastes” from subtitle C regulation: [E]ach waste listed below shall ... be subject only to regulation under other applicable provisions of Federal or State law in lieu of [subtitle C] until at least six months after the date of submission of [an Environmental Protection Agency (“EPA”) study required under 42 U.S.C. § 6982] ... Solid waste from the extraction, be-neficiation, and processing of ores and minerals, including phosphate rock and overburden from the mining of uranium ore. 42 U.S.C. § 6921(b)(3)(A)(ii). Recognizing that then-existing information “on the potential danger posed by mining waste is not sufficient to form the basis for legislative action,” H.R.Rep. No. 1491, 94th Cong., 2d Sess. 15, reprinted in 1976 U.S.C.C.A.N. 6238, 6253, Congress mandated that EPA conduct a study of mining wastes, including investigation of the following factors: the sources and volumes of mining waste and present disposal practices, alternative practices and their costs, potential dangers to human health and the environment from, inter alia, surface runoff of leachate (defined as “any liquid ... that has percolated through or drained from hazardous waste,” 40 C.F.R. § 260.10 (1994)), possibilities for the use of discarded material, and adequacy of existing state or other federal regulatory programs. 42 U.S.C. §§ 6982(f), 6982(p). Congress directed the EPA to submit its report on mining wastes to Congress by no later than October of 1983. After issuance of this report, the EPA was then required, after public notice and comment, to either promulgate subtitle C regulations governing mining waste, or determine that such regulations are unwarranted. Id. § 6921(b)(3)(C). The EPA finally completed its report on December 31,1985. The report analyzed the environmental effects of mining wastes produced as a result of the extraction and bene-ficiation (chemical treatment of extractions to separate mineral from host rock) of ores and minerals. After receiving public comment, the EPA released its Regulatory Determination for Wastes from the Extraction and Beneficiation of Ores and Minerals, 51 Fed. Reg. 24,496 (1986) (“1986 Rule”). The EPA determined that subtitle C controls of wastes from the extraction and beneficiation of ores and minerals are “likely to be environmentally unnecessary, technically infeasible, or economically impractical,” id. at 24,496, and that therefore subtitle C regulation is unwarranted. The EPA was influenced by the “high volume, low hazard” attributes of most mining wastes. The typical mining operation entails removal of large quantities of waste materials; the refined product represents a mere fraction of the raw material extracted and processed. Id. 24,497-98 (enormous volumes of mining waste “results from the high waste-to-product ratios associated with mining”). See generally Glenn C. Van Bever, Mining Waste and the Resource Conservation and Recovery Act: An Overview, 7 J.Min.L. & Pol’y 249, 249 (1991) (“[AJlmost eleven tons of raw material must be handled and processed to recover one ounce of gold.”). In the usual case, less than 5 to 14 percent of this mine waste constitutes hazardous material. 1986 Rule at 24,498. As such, subtitle C requirements, such as capping and liner controls, would impose enormous construction costs in order to contain relatively small, and therefore less harmful, quantities of contaminants. Id. at 24,498-50. Less expensive techniques the mining industry already employs, such as interceptor wells, cutoff walls, or diversion channels, are more efficient at containing and remediating acidic or otherwise toxic material such as AMD. Id. at 24,500. The EPA also noted that most mining sites are remote from population centers and located in drier climates with minimal toxic leaching (i.e., contaminated storm runoff) and deeper groundwater reserves. Id. In lieu of subtitle C regulation, the EPA elected to regulate mining wastes from extraction and beneficiation under subtitle D, 42 U.S.C. §§ 6941-6949a. Id. at 24,501. Subtitle D establishes environmental performance standards the EPA and the states jointly administer, and allows for greater flexibility in regulating mining on a site-specific basis. Id. The resultant mining waste exemption is codified at 40 C.F.R. § 261.4(b)(7) (1994): “The following solid wastes are not hazardous wastes: ... Solid waste from the extraction, beneficiation, and processing of ores and minerals (including coal, phosphate rock and overburden from the mining of uranium ore).... ” The overburden pile from the Cunningham Hill mine is solid waste from the extraction of gold. Plaintiffs’ RCRA claims predicated on AMD contamination from the overburden, as alleged in counts 3 and 4, must as a consequence fail. Their arguments to the contrary are not persuasive. Plaintiffs first argue, erroneously, that “overburden is not waste from the extraction, beneficiation, or processing of ores.” Pis.’ Resp.Defs.’ Mot. Dismiss Counts 3 & 4 at 6. In its 1985 report to Congress, the EPA defined mine wastes subject to the Bevill amendment as “large volume waste consisting of soil or rock generated by mining operations during the process of gaining access to an ore or mineral body. The waste includes the overburden from surface mines, underground development rock, and other waste rock.” EPA Report to Congress, Wastes from the Extraction and Beneficiation of Metallic Ores, Phosphate Rock, Asbestos, Overburden from Uranium Mining, and Oil Shale at D-5 (1985) (“EPA Report”) (attached as an exhibit to Defs.’ Reply Supp. Mot. Dismiss Counts 3 & 4). See also Environmental Defense Fund v. E.P.A, 852 F.2d 1316, 1327 (D.C.Cir.1988) (“Solid waste from the extraction of ores and minerals consists of very large volumes of overburden and waste rock excavated during mining.... The structure of the Bevill amendment suggests that the term ‘solid waste from the [extraction] of ores and minerals’ should be interpreted in a manner consistent with large volume wastes.”), cert. denied, 489 U.S. 1011, 109 S.Ct. 1120, 103 L.Ed.2d 183 (1989). Overburden is exactly the type of high volume, low hazard waste that the EPA deemed eligible for Bevill exemption status. 1986 Rule at 24.497-500. Plaintiffs next rely on 40 C.F.R. § 261.4(b)(3), which provides that “mining overburden returned to the mine site” is not hazardous waste. This phrase is further explained in 40 C.F.R. § 260.10: “Mining overburden returned to the mine site means any material overlying an economic mineral deposit which is removed to gain access to that deposit and is then used for reclamation of a surface mine." (emphasis added). Because Defendants admittedly have not returned the overburden to the site, Plaintiffs argue that the overburden pile is not exempt from hazardous waste status pursuant to section 261.4(b)(3). Section 261.4(b)(3) derived from regulations the EPA promulgated on May 19, 1980, see Criteria for Classification of Solid Waste Disposal Facilities and Practices, 45 Fed.Reg. 72,709, 72,712 (1980) (citing May 19, 1980 hazardous waste regulation establishing section 261.4(b)(3) exemption, at 45 Fed.Reg. 33,066 (1980)), and before enactment of the Bevill Amendment. The Bevill and other RCRA amendments of October 21, 1980 superseded these regulations. The EPA recognized that the May 19, 1980 regulations lost validity after this congressional action. On May 19, 1980, EPA promulgated regulations under Subtitle C of RCRA which covered, among other things, “solid waste from the extraction, beneficiation, and processing of ores and minerals,” i.e., mining waste. On October 21, 1980, just before these Subtitle C regulations became effective, Congress enacted the Solid Waste Disposal Act of 1980 ... which added [42 U.S.C. § 6921(b)(3)(A)(ii) ] to RCRA. This section prohibits EPA from regulating [mining waste] until at least six months after the Agency completes and submits to Congress the studies required.... 1986 Rule at 24,496. See also Identification and Listing of Hazardous Waste, 45 Fed. Reg. 76,618 (1980) (suspending operation of May 19, 1980 subtitle C regulations due to October 21,1980 enactment of RCRA amendments); EDF, 852 F.2d at 1327-28 (explaining the legislative history and the regulatory context of the Bevill amendment); John R. Jacus and Thomas E. Root, The Emerging Federal Law of Mine Waste: Administrative, Judicial and Legislative Developments, 26 Land & Water L.Rev. 461, 469 (1991) (noting that prior regulations were superseded by Bevill amendment). Plaintiffs finally assert that section 261.4(b)(7) only applies to solid waste from the extraction of ores and minerals, and not solid waste from the extraction of overburden. Pis.’ Resp. Defs.’ Mot. Dismiss Counts 3 & 4 at 2-3. See also id. at 15 (“The AMD that is the subject of this lawsuit is not a Bevill waste because it does not result from the extraction of ore, rather it results from the removal of non-ore, i.e., overburden [or] the improper storage of overburden. Neither circumstance is governed by the Bevill amendment.”). Plaintiffs’ interpretation of section 261.4(b)(7) is incorrect. The precise source of AMD, whether from the “extraction of ore” or the “removal of overburden,” is immaterial. The EPA recognized AMD as a potentially hazardous byproduct, and nevertheless refrained from imposing subtitle C controls on mining operations. See EPA Report at 4-2 (acknowledging that some mine wastes “are corrosive (acidic) and others have a high potential for forming acid.”); id. at D-l (defining “acid drainage” as “drainage from mines and mining wastes ...; the acidity is caused by the oxidation of sulfides exposed during mining....”); 1986 Rule at 24,498 (noting that mine waste possesses the “potential for the release of acidic and toxic liquid, i.e., acid formation.”). AMD, no matter what its source, is not a hazardous substance or the product of mine waste within the meaning of section 261.4(b)(7). Dallmeyer, supra at 983 (Bevill amendment excludes AMD from the definition of hazardous mine waste). The 1986 regulation is clear: mining overburden, as “solid waste from the extraction ... of ores and minerals ...,” is exempt from subtitle C regulation. Nothing in the legislative history or regulatory record suggests that overburden must be physically returned to the mine site to retain this exemption. In any event, AMD, the “subject of this lawsuit,” Pis.’ Resp.Defs.’ Mot. Dismiss Counts 3 & 4 at 15, is undoubtedly exempt from hazardous waste status. Counts 3 and 4 are dismissed. III. DEFENDANTS’ (FIRST) MOTION FOR PARTIAL SUMMARY JUDGMENT ON COUNT 1 Count 1 alleges that Defendants have violated section 404 of the CWA, 33 U.S.C. § 1344, by discharging dredged or fill material into United States waters without a permit. Plaintiffs propound two factual bases for this count: first, Defendants’ original disposal of overburden into the Dolores Arroyo allegedly constituted the discharge of fill material, Pis.’ 1st Am.Compl. ¶ 40, and second, Defendants deposited additional fill or dredged material from the Arroyo itself after completed deposition of the overburden. Id. (“Defendants have discharged additional fill material on and around the waste pile, including ... dirt, gravel, buddings, pipes, and storm water diversion channels. Defendants have also dredged materials from within the Arroyo in constructing roads, ditches, ... and other structures.”). Defendants move for partial summary judgment on the first factual predicate alleged in support of count 1. They argue that the regulatory definitions of “fill” or “dredged” material do not apply to their placement of the overburden pile in the Dolores Arroyo. Section 404 of the CWA authorizes the United States Army Corps of Engineers to issue permits for the discharge of fill or dredged material into waters of the United States. 33 U.S.C. § 1344(a), (d). The Corps defines the term “dredged material” as “material that is excavated or dredged from waters of the United States.” 33 C.F.R. § 323.2(c). The overburden originated from the Cunningham Hill surface mine, and not from United States waters; the overburden is therefore not dredged material. “Fill” is defined as “any material used for the primary purpose of replacing an aquatic area with dry land or of changing the bottom elevation of a waterbody.” Id. § 323.2(e). The definition expressly excludes “any pollutant discharged into the water primarily to dispose of wastes ...,” id., because such discharges are governed by section 402 of the CWA, 33 U.S.C. § 1342 — and are under the regulatory auspices of the EPA, and not the Army Corps of Engineers. See West Virginia Coal Ass’n v. Reilly, 728 F.Supp. 1276, 1286-87 (S.D.W.Va.1989), aff'd without op., 932 F.2d 964 (4th Cir.1991) (coal mining overburden waste deposited in stream not dredge or fill material and hence not subject to section 404). Defendants proffer affidavits of mining supervisors and other employees to testify to the rather obvious proposition that Defendants deposited the overburden into the Arroyo for purposes of disposal, and not to “replace [the area] with dry land or [to] chang[e] the bottom elevation” of the streambed. Plaintiffs fail to respond in a legally sufficient manner to Defendants’ motion, and thus partial summary judgment will be granted. Plaintiffs argue that regardless of whether section 404 or section 402 governs, Defendants have nevertheless violated section 301, 33 U.S.C. § 1311(a). This section merely prohibits the discharge of any pollutant except in compliance with law, i.e., except in compliance with, inter alia, the permitting requirements of either section 402 or section 404. Defendants in this motion are specifically moving for partial summary judgment on count 1, and not count 2, which alleges a violation of section 402. Next, Plaintiffs argue that Defendants have performed other activities, after placement of the overburden, which constitutes dredge or fill efforts. But Defendants have not moved for summary judgment on this factual predicate of count 1. Finally, Plaintiffs proffer a Fed. R.Civ.P. 56(f) affidavit from their counsel, who requests more time to depose Defendants’ affiants and other personnel. He states, “I am not convinced ... that the sole purpose of defendants’ discharge of overburden material into Dolores Gulch was waste disposal. It is possible that defendants could have considered using the overburden pile as a pad or staging area in its mining activities.” Doug Wolf Aff. ¶ 6, Pis.’ Resp.Defs.’ Mot. Part.Summ.J. Count 1. Plaintiffs had not attempted to serve discovery requests at this time, id. at ¶ 5, and so fail to assert sufficient grounds to invoke Rule 56(f). Moreover, counsel’s improbable speculation regarding Defendants’ purpose for placement of the overburden hardly suffices to justify delayed summary adjudication. See 6 (Part 2) James W. Moore et ah, Moore’s Federal Practice ¶ 56.24 at 56-817 n. 39 (1988) (citing cases in which courts denied delayed summary judgment consideration because proffered factual basis was too speculative). Defendants’ (first) motion for partial summary judgment on count 1 is granted. IV. PLAINTIFFS’ MOTION TO STRIKE AFFIRMATIVE DEFENSES Plaintiffs move to strike Defendants’ affirmative defenses of laches, estoppel, and statute of limitations. Plaintiffs argue that the defenses of laches and estoppel may not be asserted against them because they may not generally be asserted against the government, and as private attorneys general, Plaintiffs, they argue, should be entitled to the same immunity. They also maintain that Defendants cannot, under any conceivable set of facts, establish the requisite element of prejudice necessary to prevail on these defenses. Finally, Plaintiffs contend that their claims are timely filed under the applicable five-year limitations period governing the Clean Water Act and RCRA claims because Defendants have failed to remove the overburden from the Dolores Arroyo, and are therefore in continuing violation of those Acts. Fed.R.Civ.P. 12(f) provides in pertinent part that a party may move to strike from any pleading any insufficient defense. Motions to strike affirmative defenses are generally disfavored. 2A James W. Moore et al., Moore’s Federal Practice ¶ 12.21[3] at 12-210 (1993) (citing cases); Salazar v. Furr’s. Inc., 629 F.Supp. 1403, 1411 (D.N.M.1986) (“Motions under Rule 12(f) are viewed with disfavor and are rarely granted.”). To strike a defense at this stage, its legal insufficiency must be “clearly apparent.” Cameron v. Graphic Mgmt. Assoc., Inc., 817 F.Supp. 19, 22 (E.D.Pa.1992) (citing J & A Realty v. City of Asbury Park, 763 F.Supp. 85, 87 (D.N.J.1991)). “The Court must be convinced that there are no questions of fact, that any questions of law are clear and not in dispute, and that under no set of circumstances could the defenses succeed.” Carter-Wallace, Inc. v. Riverton Lab., 47 F.R.D. 366, 368 (S.D.N.Y. 1969). As the court in United States v. Kramer, 757 F.Supp. 397 (D.N.J.1991), explained: [E]ven when the defense presents a purely legal question, the courts are very reluctant to determine disputed or substantial issues of law on a motion to strike; these questions quite properly are viewed as determinable only after discovery and a hearing on the merits. [A court may therefore] strike only those defenses so legally insufficient that it is beyond cavil that defendants could not prevail upon them. Id. at 409-10 (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1381 (1990)). Plaintiffs’ motion presents disputed issues of substantive law that are best resolved in a concrete factual setting. Despite Plaintiffs’ arguments to the contrary, the defenses of laches and estoppel have been successfully asserted in environmental actions. See, e.g., Jicarilla Apache Tribe v. Andrus, 687 F.2d 1324, 1339-40 (10th Cir.1982). Defendants argue, moreover, that they have indeed suffered prejudice as a result of Plaintiffs’ delay in bringing suit. They claim that Plaintiffs initially argued, in proceedings before the New Mexico Department of the Environment, that the overburden pile should be revegetated. Defendants have done so, at considerable cost. Now Plaintiffs seek in this action to force the Defendants to remove the overburden pile. Given this possibility for prejudice, the legal issues concerning the laches and estoppel defenses are not sufficiently clear and factually framed for resolution to warrant granting a preemptive motion to strike. In addition, the possibility exists that Defendants may never move for summary judgment on these affirmative defenses, or otherwise rely upon them, once discovery is completed. As for the statute of limitations defense, this issue is raised by Plaintiffs’ motion for partial summary judgment as to counts 1 and 2 and Defendants’ (second) motion for partial summary judgment on count 1. As discussed in sections VII and IX, infra, the issue is moot. Therefore, it need not and should not be resolved here. Plaintiffs’ motion to strike is denied. V. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON COUNT 2 Defendants contend Plaintiffs’ CWA citizen suit as alleged in count 2 is barred by 33 U.S.C. § 1319(g)(6)(A)(ii) because the New Mexico Department of the Environment (“NMED”) is exercising regulatory oversight pursuant to the New Mexico Water Quality Act, N.M.Stat.Ann. §§ 74-6-1 to -17 (1993). Since 1991, the NMED has compelled Defendants to remediate the site and contain acid mine discharges. Section 1319(g)(6)(A)(ii) bars citizen civil penalty actions when the state has commenced and is diligently prosecuting its own penalty action. In support of its motion, Defendants advance the following facts which Plaintiffs, for the most part, do not dispute. The New Mexico Environmental Improvement Division (“NMEID”), the predecessor agency to the NMED, issued Discharge Plan No. 55 (“DP-55”) to Gold Fields on June 21, 1979 for a term of five years. DP-55 is essentially a permit authorizing limited discharges and imposing various operating conditions. DP-55 did not initially address the overburden. On September 17, 1985, Gold Fields and various environmental groups entered into an agreement concerning the renewal and implementation of DP-55. On October 4, 1985, the NMEID approved the agreed-upon discharge plan and renewed it for another five-year term. On August 28, 1991, the NMED requested that Pegasus investigate a potential discharge of AMD from the overburden pile. Pegasus confirmed the existence of AMD that same day. On September 16, 1991, Pegasus submitted an application for DP-55 renewal, and, at the direction of NMED officials, addressed in the application containment of the newly-discovered AMD and reclamation of the mine. At Plaintiffs’ request, and after formal notice to the public, the NMED conducted open meetings on Pegasus’ DP-55 renewal on January 25, 1992. Afterwards, Pegasus supplemented its application with detailed remediation and reclamation plans. On September 10, 1992, the NMED issued an administrative consent order as an interim measure mandating water quality monitoring and reporting and imposing an outstanding stipulated penalty provision. On October 8 and 9, 1992, the NMED again held public hearings on the DP-55 renewal, at which Plaintiffs presented testimony, cross-examined witnesses, and submitted proposed findings of fact. The NMED issued its final order granting renewal and modification of DP-55 on April 26, 1993. Later, on December 16, 1993, the NMED required further modification of DP-55 to address fresh evidence of acid mine discharge downgradient of the overburden pile. In response, LAC and Pegasus submitted a modification application. They proposed capping bedrock fractures with grout, installing a groundwater pumping system, and injecting lime milk into recirculated water to neutralize the acidic discharges. After public hearings on June 20 and 22, 1994, the NMED, Plaintiffs, and LAC and Pegasus executed a stipulation approving of the proposed modification of DP-55. The NMED issued a final order pursuant to this stipulation on October 18, 1994. Since 1991, Defendants LAC and/or Pegasus have incurred more than $2.5 million on extensive remedial efforts, including revege-tation of the overburden pile and construction of lined diversion channels, interceptor walls, a french drain, a lined collection pond, a treatment facility, and monitoring wells. LAC and Pegasus continue to be subject to the remedial and monitoring obligations of DP-55. Congress amended the Clean Water Act in 1987 to confer upon the EPA authority to pursue administrative, in addition to civil, i.e., court-imposed, sanctions. Section 1319(g) allows the Administrator of the EPA (or the Secretary of the Army in cases of violations of section 1344) to assess administrative penalties against those found in violation of the Act or any condition or limitation of a permit. Section 1319(g)(6)(A) provides in relevant part: [A]ny violation ... with respect to which a State has commenced and is diligently prosecuting an action under a State law comparable to this subsection, ... shall not be the subject of a civil penalty action under [the civil penalties provision] of this section or ... [the citizen suit provision] of this title. (emphasis added). Defendants seek to pigeonhole the DP-55 renewal and modification process into section lS19(g)(6)(A)(ii). The fit is not apt. The state must be diligently prosecuting “an action under a State law comparable to this subsection” for this citizen suit bar to apply. Id. “This subsection” clearly refers to subsection (g) of section 1319, or the administrative penalties subsection. To bar a citizen eivil penalty action, the state must therefore be diligently pursuing a penalties action comparable to section 1319(g). The NMED is not currently seeking penalties, administrative or otherwise. Nevertheless, courts interpreting section 1319(g)(6)(A) have split into two camps. One line of authority holds that as long as the state has the power to seek penalties, but has exercised its regulatory discretion not to do so, a citizen suit based on the polluter’s identical conduct is barred. These courts rely heavily on policy arguments. In North & South Rivers Watershed Ass’n. Inc. v. Town of Scituate, 949 F.2d 552 (1st Cir.1991), the Massachusetts Department of Environmental Protection issued an administrative compliance order under the state’s “Clean Waters Act” against the town of Scituate. Id. at 553. The town expended considerable sums to bring itself into compliance. Id. at 554. The state elected not to assess civil or administrative penalties. Id. Later, private citizens sued the town under the federal CWA, seeking civil penalties and injunctive relief, based on the same discharge violations as alleged in the state’s order. Id. The district court barred plaintiffs’ CWA claims pursuant to section 1319(g)(6)(A)(ii). The First Circuit affirmed, specifically rejecting the contention that a citizen suit is barred only if the state is actively seeking to monetarily sanction an offender. Id. at 555-57. The court noted that citizen suits are designed to supplement, rather than supplant, governmental enforcement action. Id. at 555 (citing Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. 49, 60, 108 S.Ct. 376, 383, 98 L.Ed.2d 306 (1987)). The court, quite accurately, observed that the prosecution of citizen suits based on the same conduct a state agency is already addressing hinders state-fostered remedial efforts. “Duplicative actions aimed at exacting financial penalties in the name of environmental protection at a time when remedial measures are well underway do not further th[e] goal [of restoring and maintaining the ‘chemical, physical, and biological integrity of the nation’s waters.’ 33. U.S.C. § 1251(a) ]. They are, in fact, impediments to environmental [remediation].” Id. at 556. The court’s policy-laden analysis led it to conclude that even injunctive relief is foreclosed by a state’s administrative compliance action, despite the fact that section 1319(g)(6)(A) bars only “civil penalty” actions. Id. at 558 (“[I]t is inconceivable to us that the section [1319(g) ] ban is only meant to extend to civil penalty actions. Surely if the limitation of civilian suits is to have any beneficial effect on enforcement of clean water legislation, the section [1319(g) ] ban must cover all civil actions.”). Other courts have followed the First Circuit’s analysis and have held that administrative compliance actions, without concurrent penalty assessments, foreclose citizen suit review. See, e.g., Sierra Club v. Colorado Ref. Co., 852 F.Supp. 1476, 1484 (D.Colo.1994) (state action need not entail monetary penalties to have preclusive effect); Connecticut Coastal Fishermen’s Ass’n v. Remington Arms Co., 777 F.Supp. 173, 180 (D.Conn. 1991) (section 1319(g)(6) “bars citizen suits where a state agency conducting enforcement proceedings against the defendant has authority to assess civil penalties, regardless of whether the agency has actually assessed such penalties.”), rev’d in part on other grounds, 989 F.2d 1305 (2d Cir.1993); New York Coastal Fishermen’s Ass’n v. New York City Dep’t of Sanitation, 772 F.Supp. 162, 165 (S.D.N.Y.1991) (“[I]t cannot be reasonably argued that only when a penalty is actually imposed that a citizen suit is precluded,” characterizing such a reading as “an overly technical interpretation” that would “unnecessarily undermine state and local enforcement efforts.”). See also Arkansas Wildlife Fed. v. ICI Americas, Inc., 29 F.3d 376, 383 (8th Cir.1994) (injunctive relief, as well as civil penalties, foreclosed by comparable state action), cert. denied, — U.S.-, 115 S.Ct. 1094, 130 L.Ed.2d 1062 (1995). Another line of authority applies the literal terms of the statute and refuses to preclude citizen suits unless the state (or the EPA) is actively pursuing, and not merely threatening, monetary penalties. In Washington Public Interest Research Group v. Pendleton Woolen Mills, 11 F.3d 883 (9th Cir.1993), the Ninth Circuit held that citizen suits are not barred by section 1319(g)(6)(A) if the EPA has instituted an administrative compliance action without seeking penalties. Id. at 885-86. The court rejected the reasoning of the lower court and other courts of appeals which construed this section broadly for policy reasons in order to bar civil penalty suits when the state or the EPA is pursuing administrative compliance actions. General arguments about congressional intent ... cannot persuade us to abandon the clear language that Congress used when it drafted the statute. The most persuasive evidence of ... [congressional] intent is the words selected by Congress, not a court’s sense of the general role of citizen suits in the enforcement of the Act. Id. at 886 (internal quotation omitted). See also Citizens for a Better Env’t v. Union Oil Co., 861 F.Supp. 889, 906 (N.D.Cal.1994) (“[O]nly where a state has proceeded (and assessed a penalty) under a state enforcement provision comparable to 33 U.S.C. § 1319(g) is the preclusive bar triggered.”); Public Interest Research Group v. New Jersey Expressway Auth., 822 F.Supp. 174, 184 (D.N.J.1992) (section 1319(g) held inapplicable because, inter alia, “no penalties were assessed.”); Arkansas Wildlife Fed. v. Bekaert Corp., 791 F.Supp. 769, 775 (W.D.Ark.1992) (same; “Congress has not provided that citizen suits are barred whenever an administrative action is underway or simply because there may be some duplication with a government proceeding.”). See also Orange Env’t. Inc. v. County of Orange, 860 F.Supp. 1003, 1018 (S.D.N.Y.1994) (rejecting the Scituate holding as to injunctive relief and ruling that section 1319(g) bars only civil penalties); Coalition for a Liveable West Side, Inc. v. New York City Dep’t of Envtl. Protection, 830 F.Supp. 194, 197 (S.D.N.Y.1993) (same; “I find no basis for the First Circuit’s redrafting of the statute.”). Section 1319(g)(6)(A)(ii) is narrowly drawn; its preelusionary effect applies only when the EPA, the Army Corp of Engineers, or a state is in the process of collecting or has already collected administrative penalties. Compare 33 U.S.C. § 1319(g)(6)(A)® (civil penalty action barred if Administrator or the Secretary has commenced and is diligently prosecuting an administrative penalty action) with id. § 1319(g)(6)(A)(ii) (civil penalty action barred if the state has commenced and is diligently prosecuting a comparable penalty action) and id. § 1319(g)(6)(A)(iii) (civil penalty action barred if either the federal government or the state has exacted penalties and its exaction is final). See note 9, supra. Congress coupled its conferral of regulatory authority to impose administrative penalties with the bar of section 1319(g)(6)(A) simply to prevent monetarily penalizing a polluter twice for the same conduct. Defendants, and many courts, wish to read more into the citizen suit bar of this subsection than exists. Although their desire is well-founded, and their policy goals are laudable, their vision cannot be reconciled with the literal terms of the statute. Defendants’ motion for summary judgment on count 2 on these grounds is accordingly denied. VI. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON COUNT 5 In count 5 of Plaintiffs’ complaint, Plaintiffs allege that the acid mine drainage at the site constitutes an imminent and substantial endangerment to health or the environment under 42 U.S.C. § 6972(a)(1)(B). Defendants move for summary judgment on this count based on three arguments: (1) Plaintiffs are bound by a stipulation they entered in the DP-55 proceedings which prevents them from challenging the NMED-sponsored remediation program; (2) count 5 essentially seeks to relitigate the issues raised in the DP-55 proceedings, and therefore Plaintiffs are collaterally estopped from doing so; and (3) the Court should abstain from entertaining count 5. As discussed in the previous section, Pegasus submitted an application for DP-55 renewal on September 16, 1991, and, at the direction of NMED officials, addressed containment of AMD therein. The NMED con-' ducted open meetings on Pegasus’ renewal on January 25, 1992, at Plaintiffs’ request. Subsequently, Pegasus supplemented its application with detailed remediation and reclamation plans. On September 10, 1992, the NMED issued its administrative consent order. On October 8 and 9, 1992, the NMED again held public hearings on the DP-55 renewal, at which Plaintiffs presented testimony, cross-examined witnesses, and submitted proposed findings of fact. These hearings included a mine site tour. The NMED issued its final order granting renewal and modification of DP-55 on April 26, 1993. Later, on December 16, 1993, the NMED required further modification of DP-55 to address fresh evidence of acid mine discharge. In response, LAC and Pegasus submitted a modification application containing new remediation techniques. The NMED held public hearings on June 20 and 22,1994, again, at Plaintiffs’ insistence. Plaintiffs submitted factual and expert testimony and cross-examined witnesses. Eventually, Plaintiffs requested the following conclusion of law: “Conditions 1-12 proposed by the NMED staff have a sufficient factual basis, are reasonable, and are necessary to meet the requirements of the Water Quality Act and the Water Quality Control Commission [“WQCC”] regulations.” The NMED, Plaintiffs, and LAC and Pegasus executed a stipulation approving of the proposed modification of DP-55 on September 12, 1994. This stipulation provided that the measures Defendants had proposed should be approved, and that the final order of the Secretary of the Environment should be final. The NMED issued a final order pursuant to this stipulation on October 18, 1994. The Secretary concluded that the stipulation “conforms to the evidence adduced at the public hearing, [and] is reasonable and consistent with the intent, purposes and goals of the Water Quality Act and the WQCC Regulations.... ” DP-55 imposes continuing remedial and monitoring obligations. Specifically, Defendants must conduct a quarterly review of the effectiveness of the lime milk program and the grouted interceptor wall; study and implement alternative methods of disposal and treatment of AMD collected behind the interceptor wall if its volume is larger than expected; conduct periodic sampling of groundwater in trenches; and perform more extensive remediation efforts if certain groundwater remediation levels are not achieved within two years or if the groundwater plume is larger than anticipated. The Court will abstain from entertaining count 5. Because of this conclusion, the Court will not address whether the September 12, 1994 stipulation precludes Plaintiffs’ assertion of count 5 or whether Plaintiffs are collaterally estopped. Defendants maintain that this Court should abstain from adjudicating the claim alleged in count 5 by authority of Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). The Supreme Court has recently elaborated on Burford abstention principles in New Orleans Public Service, Inc. v. Council of New Orleans, 491 U.S. 350, 361, 109 S.Ct. 2506, 2514, 105 L.Ed.2d 298 (1989): Where timely and adequate state court review is available, a federal court sitting in equity must decline to interfere with the proceedings or orders of state administrative agencies: (1) where there are difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at. bar; or (2) where the exercise of federal review of the question in a case and in similar eases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern. Burford abstention is appropriate in this context. Supportive of Defendants’ position is Palumbo v. Waste Technologies Indus., 989 F.2d 156 (4th Cir.1993). Plaintiffs, West Virginia governmental entities, challenged various modifications by the state of Ohio and the EPA to defendant’s RCRA permit. Id. at 158. The Ohio EPA and the federal EPA approved the modification. Id. Plaintiffs appealed the federal EPA’s action to the United States Environmental Appeals Board, and appealed the Ohio EPA’s action to the Ohio Environmental Board of Review. Id. The United States Environmental Appeals Board affirmed the permit modifications, but plaintiffs declined to appeal the Board’s ruling. Id. Instead, plaintiffs filed a federal complaint which alleged, after subsequent amendment, a RCRA section 6972(a)(1)(B) “imminent and substantial endangerment” claim, similar to Plaintiffs’ count 5 at bar. Id. The Fourth Circuit described plaintiffs’ complaint as a “collateral attack on the permitting decisions of the federal and Ohio EPAs.” Id. at 159. The court instructed plaintiffs that they “should have taken up these challenges with the appropriate agencies, or raised them on direct appeal from EPA permitting decisions, whether in state or federal court.” Id. at 160. The appellate court accordingly reversed the district court’s decision to review Ohio’s approval of the RCRA permit modification. “To the extent that plaintiffs challenge separately the permitting decisions of the Ohio EPA, they are denied jurisdiction on Burford abstention grounds.” Id. at 159. Like Ohio, New Mexico “has taken great care to provide for specialized adjudication of its complicated environmental law scheme.” Palumbo, 989 F.2d at 159. Decisions of the WQCC must be made in administrative adjudications with elaborate procedural safeguards — safeguards of which Plaintiffs readily availed themselves. N.M.Stat.Ann. §§ 74-6-5, -6, -7. Plaintiffs extensively participated in the DP-55 proceedings, and they could have appealed the NMED’s October 18, 1994 decision. Id. § 74-6-7. And as was the case in Palumbo, Plaintiffs’ assertion of count 5 is little more than an indirect collateral attack on the NMED’s DP-55 adjudication and its present regulatory course. A determination by this Court that the Cunningham Hill mine site’s acid mine discharges pose an imminent and substantial endangerment to health or the environment would be irreconcilable with the NMED’s determination to allow Defendants to proceed under DP-55. It would, in short, constitute a serious “interferfence] with the proceedings or orders of [a] state administrative agency[ ]” which would prove “disruptive of state efforts to establish a coherent policy.” New Orleans Pub. Serv., 491 U.S. at 361, 109 S.Ct. at 2514. Although the Bwrford abstention doctrine provides a sound basis for deference to the NMED, an alternative doctrine is also appropriate. The common law doctrine of primary jurisdiction provides courts with flexible discretion to refer certain matters to the specialized competence of an administrative agency which, like the NMED in this case, is exercising continuing jurisdiction over those matters. Specifically, primary jurisdiction abstention is appropriate when the agency and the court entertaining Plaintiffs’ claims have concurrent jurisdiction, and the claims are properly cognizable in federal court, but the court believes it prudent to decline to exercise its jurisdiction in favor of the agency’s expertise. [T]he original case creating the doctrine (Texas & P.R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426 [27 S.Ct. 350, 51 L.Ed. 553] (1907)) overrode explicit and unequivocal statutory provisions allowing the courts to act initially. The principal criterion in deciding whether the doctrine is applicable is not legislative intent but usually is judicial appraisal of need or lack of need for resort to administrative judgment. State ex. rel. Norvell v. Arizona Pub. Serv. Co., 85 N.M. 165, 171, 510 P.2d 98, 104 (1973) (internal quotations omitted). “[I]n cases raising issues of fact not within the conventional experience of judges or cases requiring the exercise of administrative discretion, agencies created by Congress for regulating the subject matter should not be passed over.” Far East Conference v. United States, 342 U.S. 570, 574 (1952). New Mexico law also recognizes the doctrine. “[T]he legislature has created the agency in order to afford a systematic method of factfinding ... and the agency’s jurisdiction should be given priority in the absence of a valid reason for judicial intervention.” Norvell, 85 N.M. at 171, 510 P.2d at 104. The doctrine suspends “the judicial process ... pending referral of the issues to the administrative body for its views.” Marshall v. El Paso Natural Gas Co., 874 F.2d 1373, 1376-77 (10th Cir.1989). See generally Schwartzman, Inc. v. Atchison, Topeka, & Santa Fe Ry. Co., 857 F.Supp. 838 (D.N.M.1994) (Burciaga, J.). The doctrine of primary jurisdiction may be invoked “sua sponte by the court.... [T]he doctrine exists for the proper distribution of power between judicial and administrative bodies, and not for the convenience of the parties.” 2 Fed.Proc.L.Ed. § 2:320 (1994) (citations omitted). No fixed formula constrains the Court’s exercise of its discretion to invoke the doctrine, as the determination is largely fact-specific. Bradford Sch. Bus Transit v. Chicago Transit Auth., 537 F.2d 943, 949 (7th Cir.1976), cert. denied, 429 U.S. 1066, 97 S.Ct. 797, 50 L.Ed.2d 784 (1977). Various factors, however, guide a judge’s decision to defer to an agency in this context. First, the Court should consider whether it is being called upon to decide factual issues not within the conventional experience of judges, or are instead issues of the sort that a court routinely considers. Marshall, 874 F.2d at 1377. Should the Court entertain Plaintiffs’ RCRA claim in count 5, the Court would have to assess whether the AMD poses an imminent and substantial endangerment to human health or the environment — an inquiry which, as discussed, can only be described as second-guessing the NMED. Should Plaintiffs prevail on count 5, the Court would then be required to fashion an appropriate order. This in turn would require evaluating whether Defendants have adequately investigated the groundwater contamination, or whether further investigation is necessary; whether the existing methods of remediation are adequate; what level of contamination is tolerable; and a myriad other technical matters. Of course, RCRA contemplates this sort of judicial review, and theoretically, the Court could receive extensive expert testimony, or appoint a special master. But such methods would represent a serious drain of judicial resources and would largely duplicate the past and present efforts of the NMED. Evaluating the proper components of such a plan is best left to the NMED, a body that is far better suited to resolve such issues by reason of “specialization, by insight gained through experience, and by more flexible procedure.” Far East Conference, 342 U.S. at 575, 72 S.Ct. at 494. If Plaintiffs’ goal is ultimate and complete remediation of the site, this goal would be achieved faster and more efficiently through the efforts of the NMED without interference from the Court. Second, the Court should consider whether Defendants could be subjected to conflicting orders of both the Court and the administrative agency. Should this Court independently determine an appropriate investigatory and remediation plan, aspects of the order may contradict DP-55 and subject Defendants to conflicting obligations. One purpose of the doctrine of primary jurisdiction is to promote uniformity and harmony in the regulatory sphere the agency is entrusted to govern. Nader v. Allegheny Airlines, 426 U.S. 290, 303-04, 96 S.Ct. 1978, 1986-87, 48 L.Ed.2d 643 (1976); Marshall, 874 F.2d at 1377. This purpose would be served in this case by deferring the remedial plan to the NMED. A third factor courts have considered in this context is whether relevant agency proceedings have actually been initiated. “ ‘It is axiomatic that the advisability of invoking primary jurisdiction is greatest where the issue is already before the agency.’ ” Roberts v. Chemlawn Corp., 716 F.Supp. 364, 365-66 (N.D.Ill.1989), quoting Mississippi Power & Light Co. v. United Gas Pipe Line Co., 532 F.2d 412, 420 (5th Cir.1976), cert. denied, 429 U.S. 1094, 97 S.Ct. 1109, 51 L.Ed.2d 541 (1977). In this case, the NMED has already acted to ensure that Defendants investigate and contain AMD, and it continues to exercise regulatory oversight. Fourth, courts consider whether the agency has demonstrated diligence in resolving the issue or has instead allowed the issue to languish. Administrative delay constitutes reason to retain jurisdiction. Roberts, 716 F.Supp. at 366; In re "Agent Orange” Prod. Liab. Litig., 475 F.Supp. 928, 933 (E.D.N.Y. 1979). No such delay exists here. The record indicates that the NMED has acted with deliberate care and diligence, due in no small measure to Plaintiffs’ persistent efforts. And finally, the Court should consider the type of relief Plaintiffs request. Courts refuse to defer jurisdiction if the plaintiff is seeking damages for injury to property or person, as this is the type of relief courts routinely evaluate; however, if the plaintiff seeks injunctive relief, requiring scientific or technical expertise, the doctrine is more readily applicable. See Ryan v. Chemlawn Corp., 935 F.2d 129, 131 (7th Cir.1991) (because plaintiff dropped claim for injunctive relief, lower court improperly invoked doctrine); O’Hare v. Valley Utils., Inc., 89 N.M. 105, 111, 547 P.2d 1147, 1153 (Ct.App.) (in-junctive relief is “identical to the relief which the agency could have granted” and therefore primary jurisdiction lies with the agency), rev’d in part on other grounds, 89 N.M. 262, 550 P.2d 274 (1976). Plaintiffs seek an order from the Court enjoining the discharge of acid mine drainage into the ground and surface waters of areas adjacent to the overburden pile. This is exactly the type of relief the NMED, in its expertise, considered, and, in the manner it deemed most appropriate, provided. In summary, “[i]t would be improper for this Court to exercise its equitable jurisdiction to interfere with the comprehensive programs designed to solve a complex social, economic and technological problem. Quite simply, [the Court] choose[s] not to pollute the scene with still more studies and standards.” Norvell, 85 N.M. at 172, 510 P.2d at 105. Summary judgment on count 5 is granted. VII. DEFENDANTS’ (SECOND) MOTION FOR PARTIAL SUMMARY JUDGMENT ON COUNT 1 In this motion, Defendants contend that the applicable statute of limitations, codified at 28 U.S.C. § 2462 and imposing a five-year limitations period, bars Plaintiffs’ claim that the original placement of overburden waste, completed prior to 1987, violated section 404 of the CWA, 33 U.S.C. § 1344. As discussed in section III, supra, section 404 does not apply to Defendants’ disposal of overburden in the Arroyo. Disposition of Defendants’ (first) motion for partial summary judgment on count 1 obviates the necessity to resolve the limitations issue raised by this motion. VIII. PLAINTIFFS’ MOTION TO STRIKE PORTIONS OF DEFENDANTS’ VANDERSLUIS AFFIDAVIT In response to Plaintiffs’ motion for partial summary judgment on counts 1 and 2, analyzed in the next section, Defendants proffered the affidavit of one of their experts, George D. Vandersluis. Plaintiffs move to strike those portions of the Vandersluis affidavit that state that no hydrologic connection exists between the bedrock groundwater in the vicinity of the overburden pile and the surface water in the Arroyo. By order dated December 29,1994, Defendants were required to provide expert reports no later than January 31,1995. Defendants accordingly submitted Vandersluis’ report, which made no mention of a direct hydrologic connection or the lack thereof. Under the parties’ December 6, 1994 discovery plan, the parties agreed that any supplementation required by Fed.R.Civ.P. 26(e) would take place by January 6,1995 or after-wards as the case may be. With the exception of a minor correction, Vandersluis had not supplemented his report. In February and early March of 1995, Plaintiffs deposed Vandersluis. In his deposition, Vandersluis never expressed the opinion that no hydro-logic connection exists. In response to Plaintiffs’ motion for partial summary judgment, Vandersluis opines that “the groundwater in the bedrock is not directly hydrologically connected to surface waters in the vicinity of the overburden pile.” Vandersluis Aff. ¶ 12, Defs.’ Resp.Pls.’ Mot. Part.Summ.J. Counts 1 & 2. Plaintiffs contend that this opinion should be stricken due to Defendants’ alleged failure to supplement the Vandersluis expert report. They also assert that this opinion should be stricken because it is ostensibly inconsistent with Vandersluis’ previous positions and that of other experts. Defendants argue that Vandersluis never expressed an opinion concerning the absence of a direct hydrologic connection earlier because he and Defendants were under the impression that Plaintiffs were not contesting the absence of a connection between bedrock groundwater and surface water flows. They argue that Plaintiffs’ three expert reports, filed on December 12, 1994, make no assertion of any such connection. In fact, the report of Plaintiffs’ expert Francis L. Green, III states, “[A]eid water that is intercepted and moved to the surface and then moved downstream to percolate below the surface generally has no direct hydrologic connection with the groundwater in the area, but is just another component of the surface water regime.” Green Expert Report at 3, quoted in Vandersluis Aff. ¶6 (emphasis added). They also claim that because Plaintiffs never questioned Vandersluis on this topic in his deposition, he never expressed any opinion regarding it. Plaintiffs’ partial summary judgment motion represents the first occasion Plaintiffs appeared to assert that a direct hydrologic connection exists. Fed.R.Civ.P. 26(e)(1) imposes the duty to supplement information contained in expert reports and in depositions. Fed.R.Civ.P. 37(c)(1) provides, “A party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1) shall not, unless such error is harmless, be permitted to use as evidence ... on a motion any witness or information not so disclosed.” Defendants had a “substantial justification” for failing to disclose the Vandersluis opinion concerning the absence of a hydrologic connection until summary judgment. P