Amicus Curiae Brief — Alaska v. Southeast Alaska Alaska Conservation Council (No. 07-990)

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Nos. 07-984 and 07-880

In The

Supreme Court of the United States

COEUR ALASKA, INC.,

Petitioner,

SOUTHEAST ALASKA

CONSERVATION COUNCIL, et al.,

Respondents.

STATE OF ALASKA,

Petitioner,

SOUTHEAST ALASKA

CONSERVATION COUNCIL, et al.,

Respondents.

On Writ Of Certiorari To The

United States Court Of Appe::ls

For The Ninth Circuit

AMICUS CURIAE BRIEF OF AMERICAN RIVERS,

NATIONAL WILDLIFE FEDERATION,

NATURAL RESOURCES DEFENSE COUNCIL,

EARTHWORKS, AND WATERKEEPER ALLIANCE

IN SUPPORT OF RESPONDENTS

DEBORAH A. SIVAS

Counsel of Record

LEAH J. RUSSIN

ENVIRONMENTAL LAW CLINIC

MILLS LEGAL CLINIC OF STANFORD LAW SCHOOL

559 Nathan Abbott Way

Stanford, California 94305-8610

(650) 723-0325

Counsel for Amici Curiae American Rivers, et al.

COCKLE LAW BRIEF PRINTING CO (89)) 225-6464

OR CALL COLLECT (402) 342-283

Page

INTERESTS OF AMICI CURIAE ...............0000000008 1

SUMMARY OF ARGUMENT ......................:::eeseeee 2

| EREREE Oeaes ae ee D eae 6

I. CONGRESS INTENDED SECTION 402,

TABLE OF CONTENTS

NOT SECTION 404, TO CONTROL THE

DISCHARGE OF INDUSTRIAL POLLUT-

ANTS IN PROCESS WASTEWATER............

A. Section 402 Establishes a Comprehen-

sive, Technology-Based Program to

Regulate Industrial Discharges and

Reduce or Eliminate Pollutant Loading

SP TE Esniaicinisicnsisiciniadseinininiabinnininutindoniess

B. Section 404 Functions Differently from

Section 402 by Employing a “Practica-

bility” Standard and Applying a Hierar-

chy of Avoidance, Minimization, and

Mitigation Rather than Strict Pollu-

tion Control Technologies......................

C. The Corps’ Approach in This Case

Marks a Radical Departure From Con-

gressional Intent and Past Agency

IN ti tirnisiciunbdinnanedndaemidtvenhinnindinienetate

1. Congress, the Corps, and_ the

Courts Have All Recognized the

Distinction Between Mining Proc-

ess Wastes and Fill...........................

Il.

Ili.

TABLE OF CONTENTS - Continued

Page

2. EPA Has Long Recognized that Dis-

charges from the Industrial Proc-

essing of Mining Wastes Are

Subject to Section 306 and Section

402 of the Clean Water Act ..............

PETITIONERS’ NEW INTERPRETATION

OF SECTION 404 VIOLATES THE

CLEAR LANGUAGE OF THE CLEAN

WATER ACT AND UNDERMINES THE

ACT’S BASIC REGULATORY FRAME-

Wa ccnsciscvnssedeeethicnacseceiveunneageieesidsaasinienenioes

Applying Section 404 to Industrial

Waste Discharges Directly Conflicts

With Sections 306 and 402 and Would

Allow Many Mining and Other Indus-

Applying the Section 404 Permitting

Scheme to Industrial Waste Discharges

Undermines the Role of the States in

the Section 402 Permitting Program

and Reallocates Power to the Federal

Government, Contrary to Congress’

EERIE AOE Sree eae

KENSINGTON MINE HAS VIABLE AL-

TERNATIVES TO DISPOSING INDUS-

TRIAL WASTE IN NATURAL LAKES.........

set apiceni se ccambaineteon ov caisentin

Py SINE Soticinecnenescessactadsovscesveracontes

ill

TABLE OF CONTENTS -— Continued

Page

C. Man-Made Holding Facilities for Mine

I eriiccecanicleaiaciadilenasahiatehatiaiibentuaubindaice: 34

EIT ctesiecnsnvssnieiinvnipinncenbinneancsinannensinesans 36

TABLE OF AUTHORITIES

Page

CASES

Chevron U.S.A., Inc. v. Hammond, 726 F.2d

ETE STR a a 10

EI. du Pont de Nemours & Co. v. Train, 430

FER a 22

EPA v. Cal. ex rel. State Water Res. Control Bd.,

i a i)

Kentuckians for the Commonwealth v. Riven-

burgh, 317 F.3d 425 (4th Cir. 2003)...........0..0... 19, 20

Natural Res. Def. Council v. Train, 510 F.2d

ERR aa eee 1l

Rapanos v. United States, 547 U.S. 715 (2006)......... 30

Reserve Mining Co. v. EPA, 514 F.2d 492 (8th

a 19

Southeast Alaska Conservation Council v. U.S.

Army Corps of Eng’rs, 486 F.3d 638 (9th Cir.

EER aeterie stent oN ae a ea Re oe ee ee 33

Weyerhauser Co. v. Costle, 590 F.2d 1011 (D.C.

SI RL SE = RN eR ee 8

STATUTES

Clean Water Act, 33 U.S.C. § 1251 et seq. ...............24.. 1

EO oe Be Cann er en a oe ae 13

33 U.S.C. § 407 coco cc ccccceccccccccscecesesevsvsveveveveeveveveve 19

TABLE OF AUTHORITIES — Continued

33 U.S.C.

Page

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TABLE OF AUTHORITIES — Continued

33 U.S.C.

40 C.F.R.

40 C.F-R.

40 C.F.R.

40 CFR.

40 C.F_R.

40 C.E.R.

40 C.F.R.

40 C.FR.

40 C.F.R.

40 C.FR.

40 C.F.R.

40 C.ELR.

40 C.FR.

40 C.F.R.

Page

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REGULATIONS

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§ 230.71........ piieaiaddasapiiniitlaissanhensetamiteaeaniniie 15

vii

TABLE OF AUTHORITIES — Continued

Page

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TABLE OF AUTHORITIES ~— Continued

Page

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TT ESTES

TABLE OF AUTHORITIES — Continued

Page

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i icietnanmenennonsnniih mosistesenpiaunaiaiiiiil 29

SGT. © SD. FG D) onecescecrevccecnnitintnsttiiinstninngyiiiil 5, 22

SUPREME COURT RULES

SS Ee a

IT A a Ee

FEDERAL REGISTER

47 Fed. Reg. 25,682 (June 14, 1982)..............00..00..... 22

51 Fed. Reg. 24,974 (July 9, 1986)..........0.. en. 26

47 Fed. Reg. 54,598 (Dec. 3, 1982)............... eee 22

65 Fed. Reg. 21,292 (Apr. 20, 2000) ..................... 18, 20

67 Fed. Reg. 8.582 (Feb. 25, 2002)................... cece eeeee 26

67 Fed. Reg. 31,129 (May 9, 2002)................ eee ee 23

TABLE OF AUTHORITIES — Continued

Page

CONGRESSIONAL RECORDS AND REPORTS

117 Cong. Rec. 38,797 (Nov. 2, 1997) ............:..cceeeeeeee 12

S. Rep. No. 92-414, 1972 U.S.C.C.A.N. 3668

CEE aT a Se I a ae or oa oe ee 11,19

es I ichicsicinipscesinocininhecenicetunsstnnocemnaeniainiins 13

AGENCY MATERIALS

Clean Water Act Section 404(q) Memorandum

of Agreement Between the Environmental

Protection Agency and the Department of the

I I Fs I inch ad ndicnapiniesiatenbenentsetns 14

EPA, Chronology of 404(c) Actions ...........10ccceceeeeeee ees 14

EPA, Clean Water Act Section 404(c) “Veto

I a a oti omanniinbiignasiins 14

EPA, EPA Terminology Services...............2..00s++00++ 28, 29

Bee, COND FVIII CIID i osscc ccc scctssccecccceseceseccsoccesses 10

EPA, Technical Support Document for the 2004

Effluent Guidelines Program Plan (2004).............. 27

GAO, The Corps of Engineers’ Administration

of the Section 404 Program (1988)...........ccccccceecees 15

GAO, Report to Congressional Requesters, The

Scope of Section 404 Programs Remains Un-

ee Ce eitbiiiititneeneriecaiitcinnanenbcccabiaiisniiihaiinibiaiinc cents 15

GAO, Wetlands Protection: Corps of Engineers

Does Not Have an Effective Oversight Ap-

proach to Ensure that Compensatory Mitiga-

SUNN ie TID SII cn ccccesccsdcacehiscntradcicnasecnncdies 15

TABLE OF AUTHORITIES — Continued

Page

Memorandum of Agreement Between The

Department of Army and The Environmental

Protection Agency Concerning the Determina-

tion of Mitigation Under the Clean Water Act

Section 404(b)(1) Guidelines (Feb. 6, 1990)...... 16, 17

JOURNALS, TEXTS, REPORTS AND OTHER MATERIALS

Bernard J. Nebel & Richard T. Wright, Enuvi-

ronmental Science: The Way the World Works

RET cscinetinivionishbatiinnatapadidunidianniéiaibiabtitinkstnaniinnéetninoneiens 28

The Compact Oxford Dictionary (3d ed.) ...............6.. 29

Hossein et al., A Brief Survey of Current Sur-

face Waste Disposal Practices in the Metal

Mining Industry, 7 Int’| J. Mining, Reclama-

i I I I a isi sais irate linnnticaninneniennnnte 34

Michael Hollins, Addition by Removal? Na-

tional Mining Limits Section 404 Control of

Construction in Wetlands, 14 J. Land Use &

a a a ee Se ene 13

K.R. Demars et al., Dredging, Remediation,

and Containment of Contaminated Sedi-

i RS A OK NEE

Mid-America Regional Council, What is Sedt-

PGTRE PIIIIEE ones cncsccecesccessceces. ae

Mine Gives Up Permits Pursuit, Spokesman-

oS rr 33

xii

TABLE OF AUTHORITIES — Continued

National Research Council, Compensating for

Wetland Losses Under the Clean Water Act

FD cisiisnrritectinarbinensninbesshibemieteniennatetoetentasssuenececs

Neville Ward, The Problem of Sediment in

SN I I sic stcisicdeciensdannentesiiccniness

Pennsylvania Department of Environmental

Protection, Report on Water Quality Man-

agement Regulations with Provisions More

Stringent Than Federal Requirements (1995) ..

Press Release, Coeur d’Alene Mines (Sept. 23,

ST baidseeiniidsninosindteeidansidndmeinmuonbctitidebiamdionsoes

Ralph L. Stephenson & James W. Blackburn,

The Industrial Wastewater Systems Hand-

ESSE RNR ac ce opr ear eee ae eo ee

R. Eugene Turner, et al., Count It by Acre or

Function — Mitigation Adds Up to Net Loss of

Wetlands, National Wetlands Newsletter,

November-December 2001 .0............cccccececeeceeeeees

INTERESTS OF AMICI CURIAE

Amici American Rivers, National Wildlife Fed-

eration, Natural Resources Defense Council, Earth-

works, and Waterkeeper Alliance submit this brief in

support of Respondents Southeast Alaska Conserva-

tion Council, et al., urging the Court to affirm the

decision below.’ Amici are non-profit public interest

organizations working to protect the environment,

public health, and communities that rely on healthy

waters, whose work includes persuading policy mak-

ers to provide greater environmental and public

health protection, conducting research into environ-

mental and public health problems, and using the

citizen suit provisions of environmental laws, includ-

ing the Clean Water Act, 33 U.S.C. § 1251 et seq., to

enforce those laws. Amici all have a long history of

involvement in, and expertise concerning, the protec-

tion of our nation’s waters and the implementation of

the Clean Water Act. Through testimony in Congress,

comments and other advocacy in the Executive

Branch, and litigation in the courts, they have pur-

sued these interests repeatedly during the three

‘ In accordance with S. Ct. Rule 37.3(a), all parties have

consented to the filing of this brief. All petitioners and respon-

dents except the United States have done so by consent letters

filed directly with the Clerk; the consent of the Solicitor General

is filed herewith. Pursuant to S. Ct. Rule 37.6, Counsel for Amici

state that no counsel for a party authored this brief in whole or

in part and no person or entity other than Amici or their counsel

made a monetary contribution to the preparation or submission

of this bref.

decades since enactment of the seminal 1972

amendments that gave the Act its current structure.

Specifically, Amici have participated in the section

402 and section 404 permitting processes under the

Clean Water Act and have been involved as parties or

friends of the court in various Clean Water Act cases

before this Court and others, including through the

filing of an amicus brief in the lower court in this

case. All of these organizations have members and

supporters who use and rely on a wide array of wa-

ters throughout our nation for recreation, scientific

study, and protection of their health, safety, property,

drinking water, and food supply. Amici’s interests in

protecting waterways across the United States are

threatened if the Court reverses the decision below.

SUMMARY OF ARGUMENT

The Clean Water Act, one of the nation’s most

vital environmental laws, regulates the discharge

of pollutants into waters of the United States. It does

so in large part through two permit programs. First

and most comprehensive, section 402 requires a

National Pollutant Discharge Elimination System

(“NPDES”) permit for discharges of pollutants by

industrial and municipal sources. 33 U.S.C. § 1342.

Second, section 404 requires a permit for discharges

of “dredged or fill material,” which often involves

physical alterations to water bodies, such as the

filling of wetlands or other waters to facilitate con-

struction. 33 U.S.C. § 1344. In essence, section 404 is

an exception to the ordinary rule of NPDES permit-

ting for a very narrow subset of discharges to water —

those that may physically alter the aquatic environ

ment in an adverse way. Unless a discharge is per-

mitted under one of these programs, it is prohibited.

33 U.S.C. § 1311(a).

The differences between the two Clean Water Act

permit programs are significant, reflecting their very

different purposes. The NPDES program works to

protect the nation’s waters from the disposal of pol-

luted waste streams. It does so by incorporating

industry-specific technology-based effluent limita-

tions designed to reduce and eventually eliminate the

discharge of pollution. Importantly, the U.S. Envi-

ronmental Protection Agency (“EPA”) develops efflu-

ent limitation guidelines to establish technology-

based requirements for all categories and classes of

pollutant discharges. States, which typically issue

individual NPDES permits under federal law, must

translate these guidelines into effluent limitations

and must include any other protections necessary

to ensure compliance with state water quality

standards. The statute expressly requires periodic

review and updating of available controls, effluent

limitations, and individual permits to ensure that

pollution loading continues to decrease as technology

improves.

Section 404 dredge and fill material permits, on

the other hand, ordinarily target the physical im-

pairment of rivers, wetlands, and other waters and

the destruction of aquatic habitat, rather than end-of-

the-pipe discharges. Implemented primarily by the

U.S. Army Corps of Engineers (“Corps”) with minimal

EPA oversight and little state involvement, dredge

and fill permits cover what are typically one-time

construction activities. For this reason, the section

404 program does not focus on effluent limitations

and control technologies, but instead addresses

ecological impacts by requiring project proponents to

first avoid, then minimize, and then mitigate any

project impacts. Because section 404 is not intended

to address ongoing pollution discharges, dredge and

fill permits also do not include the kind of monitoring,

reporting, review, and renewal provisions that lie at

the heart of the technology-forcing NPDES program.

Thus, while the section 404 permit program plays a

vital role in protecting the nation’s waters from the

harmful effects of discharges that convert water

bodies to dry land, it simply is not equipped — and

was never intended — to displace the regulation of

industrial pollutants under section 402.

The Corps’ and Petitioners’ position here contra-

venes this basic statutory architecture by authorizing

what is self-evidently an ongoing discharge of indus-

trial pollutants under the section 404 dredge and fill

permit program. The proposed new Kensington Mine

gold processing facility will discharge an estimated

210,000 gallons of polluted wastewater every day into

a sub-alpine lake in the Tongass National Forest.

This wastewater stream is the result of a froth-

flotation process that uses a variety of conditioners

and frothing agents to separate gold from the rest of

the mined material. Joint Appendix (“JA”) 192a. Once

the gold is extracted, the resulting waste stream is a

slurry — a suspension of solids in water — consisting of

chemical additives, heavy metals such as aluminum,

copper, lead and mercury, and crushed rock debris.

With a pH of 10, this waste slurry will kill all fish and

most other aquatic life in Lower Slate Lake. Id. at

197a, 206a. The toxicity resulting from the discharge

may well preclude the lake from ever again providing

a suitable habitat for macroinvertebrates, which are

critical for supplying nutrients to fish. Jd. at 199a.

Thus, “the extent to which aquatic life could be re-

stored eventually is unclear.” Jd. at 522a. To avoid

these kinds of harms, and after evaluating the avail-

ability of treatment alternatives, EPA in 1982 estab-

lished a zero-discharge standard of performance

for wastewater from new froth-flotation gold process-

ing operations like Kensington Mine. 40 C.FR.

§ 440.104(b)(1). If reversed, this case would allow the

facility to circumvent EPA’s long-standing no-

discharge standard.

The implications of Petitioners’ and the Corps’

statutory interpretation in this case extend well

beyond the gross pollution of the Lower Slate Lake

and the complete destruction of its ecosystem. Many

industries currently discharge polluted wastewater

containing sediments or other settlable solids that

might alter the bottom elevation of the receiving

water. Indeed, EPA has established technology-based

standards for total suspended solids from many

industrial categories. Under Petitioners’ reading of

the Clean Water Act, these sources could well fall out

of the NPDES program altogether by virtue of the

solids content in their waste streams, even when

those wastes contain significant levels of harmful

industrial pollutants. Such a result would violate the

plain reading of the Clean Water Act, dramatically

undercut the Act’s fundamental structure, and mark

a radical departure from more than 30 years of

agency practice. Moreover, it could significantly alter

the states’ important historical role in regulating

local water quality by controlling industrial dis-

charges. The Court should not embrace an interpreta-

tion of the Clean Water Act that both subverts the

plain language of the law and threatens to upend the

successful federal-state partnership that has moved

the nation’s waterways ever closer to the statutory

goals of “swimmable” and “fishable.” See 33 U.S.C.

§ 1251{a)(2).

ARGUMENT

The decision below properly recognized that this

dispute is resolved by the plain language of section

306(e), which has independent force and declares that

all new sources “shall” comply with any applicable

performance standard. 33 U.S.C. § 1316(e). As Re-

spondents explain, because EPA has promulgated a

zero-discharge standard of performance for the froth-

flotation process at issue here, no discharge can be

permitted under the Corps’ discretionary section 404

permitting program, even if the resulting wastewater

has sufficient solids to alter the bottom elevation of a

water of the United States. Claims to the contrary in

this lawsuit are an improper attempt to rewrite this

standard of performance without following the proper

rulemaking process. A judicial interpretation of the

Clean Water Act that allows a section 404 permit to

override duly promulgated standards of performance

and effluent limitations undermines the fundamental

structure and intent of the statute.

I. CONGRESS INTENDED SECTION 402,

NOT SECTION 404, TO CONTROL THE

DISCHARGE OF INDUSTRIAL POLLUT-

ANTS IN PROCESS WASTEWATER.

A. Section 402 Establishes a Comprehen-

sive, Technology-Based Program to

Regulate Industrial Discharges and

Reduce or Eliminate Pollutant Load-

ing Over Time.

The plain language, statutory structure, histori-

cal background, and legislative history of the Clean

Water Act all demonstrate that Congress intended

to regulate industrial process wastewater of the

kind at issue here through the comprehensive

NPDES program, not through section 404 dredge

and fill permits. Under the umbrella of section 402,

Congress created an all-encompassing wastewater

discharge permit program to protect public health

and preserve water quality for industrial, domestic,

recreational, and wildlife uses. The section 402

program is undergirded by the discharge prohibitions,

effluent limitations, and water quality standards

embodied in sections 301, 303, 304, and 306 of the

statute. Together with the statute’s information

gathering, monitoring, and reporting requirements,

these substantive provisions are designed to imple-

ment the “national goal that the discharge of pollut-

ants into navigable waters be eliminated,” 33 U.S.C.

§ 1251(a)(1).

The Clean Water Act, enacted in the wake of an

alarming rise in industrial pollution, establishes an

overarching objective “to restore and maintain the

chemical, physical and biological integrity of the

nation’s waters,” 33 U.S.C. § 1251l(a). For the two

decades immediately following World War II, congres-

sional efforts to address the expanding water pollu-

tion problem from aé receiving water quality

perspective proved largely unsuccessful. See Weyer-

hauser Co. v. Costle, 590 F.2d 1011, 1042 (D.C. Cir.

1978). For this reason, the 1972 overhaul of the Clean

Water Act charted a bold new course for protecting

the quality of the nation’s waters by requiring tech-

nology-based permits for any discharge of any pollut-

ant into waters of the United States.

The new NPDES permitting program was de-

signed “to set and enforce standards to abate and

control water pollution” through two major changes,

“Iflirst, the |amended statute] ... aimed at achieving

maximum ‘effluent limitations’ on ‘point sources,’ as

well as achieving acceptable water quality stan-

dards|,}” and second, the discharger’s performance

was “measured against strict technology-based efflu-

ent limitations. ...” EPA v. Cal. ex rel. State Water

Res. Control Bd., 426 U.S. 200, 204 (1976).’ In par-

ticular, the statute charges EPA with the responsibil-

ity for determining “best available technology” for the

control of toxic and other non-conventional pollutants

and “best conventional pollutant control technology”

for conventional pollutants such as organic wastes,

and for converting these determinations into effluent

limitation guidelines for particular industrial catego-

ries. 33 U.S.C. § 1311(b)(2)(A) & (E), 1314(b). Each

state must also adopt local water quality standards to

achieve the statute’s overarching mandate, taking

into consideration public health and designated uses,

including the need for public water supplies, the

propagation of fish and wildlife, and recreational,

agricultural, industrial, navigational and _ other

purposes. 33 U.S.C. § 1313(c). EPA regulations un-

equivocally mandate that “[iJn no case shall a State

adopt waste transport or waste assimilation as a

designated use for any waters of the United States.”

40 C.F-R. § 131.10.

Permitting agencies translate the EPA technol-

ogy-based guidelines into actual discharge limits in

individual NPDES permits. If technology-based

* For a more comprehensive discussion of the Clean Water

Act’s various provisions, see Ralph L. Stephenson & James W.

Blackburn, The Industria! Wastewater Systems Handbook 12

(1998), available at http://hooks google .com/books?id=4TX_WImt

4zwC&pmintsec=frontcover#PPP1,M1.

effluent limitations are insufficient to meet state

water quality standards, permitting agencies must

incorporate more stringent water quality-based

effluent limits into individual NPDES permits. Thus,

the NPDES program is the heart of the modern Clean

Water Act, and it serves as the primary tool through

which effluent limitations, standards of performance,

and water quality requirements are implemented. See

Chevron U.S.A., Inc. v. Hammond, 726 F.2d 483, 489

(9th Cir. 1984). Forty-six states and one territory

have been delegated authority by EPA to issue

NPDES permits.”

Congress intended the NPDES program to be

technology-forcing and expected that pollution levels

would decrease as treatment technologies improved.

Accordingly, the Clean Water Act mandates that

EPA’s assessment of available control technologies be

revisited, and where appropriate strengthened, “at

least annually.” 33 U.S.C. § 1314(b). Similarly, EPA

must review and revise technology-based effluent

limitations every five years. 33 U.S.C. § 1311(d). And

* See EPA, State Program Status, available at http://

cfpub.epa.gov/npdes/statestats.cfm. The Clean Water Act not

only allows states to administer the NPDES in lieu of the federal

government, 33 U.S.C. § 1412(b); 40 C.F.R. Part 123, it also

allows them to set more stringent standards to meet loca] water

quality concerns. 40 C.F.R. § 131.4. Many states have taken

advantage of this opportunity. See, e.g., Pennsylvania Depart-

ment of Environmental Protection, Report on Water Quality

Management Regulations with Provistons More Stringent Than

Federal Requirements (1995), available at http://www.dep state

pa.us/dep/subject/rbi/federal. htm.

finally, individual NPDES permits for ongoing indus-

trial discharges must be reviewed and renewed at

least once every five years and are expressly subject

to anti-backsliding provisions that prohibit the use of

less stringent standards in subsequent permits. 32

U.S.C. § 13842(b)(1)(B) & (0)(1). Through this carefully

crafted process, dischargers must satisfy increasingly

stringent technology-based controls and effluent

limitations, in an effort to achieve the Acts zero-

discharge goal. See Natural Res. Def. Council uv.

Train, 510 F.2d 692, 707 (D.C. Cir. 1975); see also S.

Rep. 92-414, 1972 U.S.C.C.A.N. 3668, 3701 (1971)

(“(Tjhe program established by this section requires

increasingly tougher controls on industry; . . . indus-

try will be required every five years to re-evaluate its

control efforts and to apply the best technology then

available. .. .”).

Another important aspect of the NPDES program

is its incorporation of data collection and disclosure

requirements. EPA must establish monitoring and

reporting requirements to ensure that permittees

consistently comply with effluent limitations, stan-

dards, and permit conditions. 33 U.S.C. § 1318(a).

Dischargers must prepare and maintain records and

reports, sample effluent, and allow entry by EPA or

the state permitting agency, all for the purpose of

ensuring compliance with the Clean Water Act. /d.

Each NPDES permit must incorporate these require-

ments. 33 U.S.C. § 1342(a\(2); 40 C.FR. §§ 122.41())

(monitoring and recordkeeping) & 122.42(a) (additional

reporting requirements for manufacturing, commer-

cial, mining, and silvicultural dischargers). The result-

ing information is generally available to the public, 33

U.S.C. § 1318(b), which can enforce NF’'DES permit

standards, if necessary, through the statute’s citizen

suit provisions. See 33 U.S.C. § 1365(a)(1)(A) & (f)(6).

B. Section 404 Functions Differently

from Section 402 by Employing a

“Practicability” Standard and Apply-

ing a Hierarchy of Avoidance, Minimi-

zation, and Mitigation Rather than

Strict Pollution Control Technologies.

By contrast, section 404 establishes a narrowly

tailored permit program intended to apply not to

industrial pollutant discharges, but rather to earth

moving activities that may physically alter and

thereby adversely affect the nation’s waters. As it

considered path-breaking water pollution control

legislation in 1972, Congress was aware that dredge

and fill activities presented a different threat than

industrial discharges. See, e.g., 117 Cong. Rec. 38,797,

38,853 (Nov. 2, 1997), reprinted in 1 Sen. Comm. On

Public Works, 93d Cong., lst Sess., A Legislative

History of the Water Pollution Control Act Amend-

ments of 1972 (“CWA Leg. Hist.”), at 1386 (statement

by senator who introduced section 404 provision

noting that “lojne of the main deficiencies of this bill

is that it treats dredged materials the same as indus-

trial waste, sewage, sludge, or refuse introduced into

a river system, lake estuary or ocean. The disposal of

dredged material does not involve the introduction of

new pollutants; it merely moves the material from

one location to another.”).. Congress also was

“uniquely aware” that the Corps historically had

authority to regulate dredging, filling, and construc-

tion in navigable waterways of the United States

under section 10 of the Rivers and Harbors of 1899,

33 U.S.C. § 403, and it “did not wish to create a

burdensome bureaucracy in light of the fact that a

system to issue permits already existed.” Conf. Rep.

No. 92-500, reprinted in CWA Leg. Hist. at 177. Thus,

Congress carved out a limited exception to the

NPDES permit program for such earth moving activi-

ties by creating the separate section 404 permit

process. See Michael Hollins, Addition by Removal?

National Mining Limits Section 404 Control of Con-

struction in Wetlands, 14 J. Land Use & Envtl. L.

341, 345-48 (1999) (explaining that section 404 was

intended as a narrow exception to section 402).

Section 404 functions quite differently from

section 402. Significantly, it is administered primarily

‘ This statement is not necessarily correct as a factual

matter because, as we have learned, dredged and fill material

can contain harmful pollutants, but it demonstrates that

Congress intended section 404 as a limited carve-out from the

rbroader section 402 permitting scheme. Congress understood

that sections 301 and 404 are intended to control movement of

dredged material within a waterbody, as well as the introduction

of fill material from outside a waterbody. In addition to destroy-

ing and altering the receiving water, both dredged and fill

material can result in significant pollution in downstream

waters by causing sediment, turbidity, and other impairments.

by the Corps, an agency whose historic expertise lies

in engineering, navigation, and flood damage protec-

tion, not pollution control. Although EPA is the

agency responsible for ultimately ensuring that

Corps-issued permits comply with the Clean Water

Act and has supervisory authority to review section

404 permits issued by the Corps, 33 U.S.C. § 1344(c),

an interagency agreement makes clear that only

those specific individual permit decisions that involve

“aquatic resources of national importance” will be

elevatec. for formal EPA review, and even that limited

review involves a cumbersome multi-step administra-

tive process. Clean Water Act Section 404(q) Memo-

randum of Agreement Between the Environmental

Protection Agency and the Department of the Army

(Aug. 11, 1992) at Part IV(1).° Moreover, while

roughly 1,640,000 section 404 applications were

submitted between 1979 and 2005, EPA utilized its

section 404(c) veto authority only 11 times, with

virtually all of these vetoes occurring in the 1980's.

EPA, Clean Water Act Section 404(c) “Veto Authority.”

Earlier this year, EPA finally issued one additional

veto for a project that would have drained and dam-

aged at least 67,000 acres of wetlands in northwest

Mississippi, bringing the total to 12 permit vetos in

36 years.’

‘ Available at http://www.usace.army.mil/ew/cecwo/reg/mou/

epa104q.htm#3.

* Available at http://www.epa.gov/owow/wetlands/pdf/404c. pdf.

’ See EPA, Chronology of 404(c) Actions, http://www.epa.gov/

owow/wetlands/regs/404c. html.

Similarly, while the Clean Water Act allows

partial delegation of the section 404 program to the

states, only two states have assumed such responsi-

bility. 33 U.S.C. § 1344(g) (allowing delegation for

waters other than, inter alia, “those waters which are

presently used, or are susceptible for use in their

natura! condition or by reasonable improvement as a

means to transport interstate or foreign commerce”);

40 C.FR. §§ 230.70-.71 (partially delegating section

404 permit authority to Michigan and New Jersey).

Thus, the section 404 program is implemented largely

by an agency within the Department of Defense,

rather than by state or local water quality officials.

The Corps has been widely criticized for its poor

implementation of the section 404 program, and for

inadequate enforcement of section 404 permits.*

Moreover, because earth moving and land conver-

sion activities do not readily lend themselves to end-of-

pipe technology controls and because section 404 is not

intended to regulate industrial pollutants, the dredge

and fill program does not use “best available” control

* See, e.g., GAO, Wetlands Protection: Corps of Engineers

Does Not Have an Effective Oversight Approach to Ensure that

Compensatory Mitigation is Occurring 2 (2005) (concluding that

“parts of the guidance |for compensatory mitigation] are vague

or internally inconsistent” and that the Corps districts visited by

the GAO “performed limited oversight to determine the status of

compensatory mitigation.”); GAO, Report to Congressional

Requesters, The Scope of Section 404 Program Remains Uncer-

tain (1993) (noting significant continuing problems with Corps

enforcement of the program), GAQ, The Corps of Engineers’

Administration of the Section 404 Program (1988) (same).

strategies, effluent limitations, and standards of

performance. Instead, section 404 discharge require-

ments are uniquely designed to protect water quality

and aquatic habitat from the impacts of dredge and

fill activities. Section 404(b)(1) permit guidelines

allow the Corps to issue permits only where there is

no “practicable alternative” that would cause less

damage to the aquatic ecosystem. These guidelines

also prohibit, inter alia, discharges of dredged or fill

material where the discharge would have unaccept-

able impacts on water quality, violate toxic standards

or prohibitions under the Act, have unacceptable

impacts on endangered species, or violate require-

ments that protect marine sanctuaries. 40 C.F.R.

§ 230.10.”

Once the Corps decides that a permit can be

issued, the agency must ensure that “appropriate and

practicable steps have been taken which will mini-

mize potential adverse impacts of the discharge on

the aquatic ecosystem.” 40 C.FR. § 230.10(d). As

interpreted by the Corps and EPA, the guidelines

require (1) avoidance of impacts to the maximum extent

practicable, (2) minimization of unavoidable impacts

where “appropriate and practicable,” and finally (3)

compensatory mitigation for unavoidable impacts, in

that order. Memorandum of Agreement Between

The Department of Army and The Environmental

Protection Agency Concerning the Determination of

’ Available at http://www.usace.army.mil/ew/cecwo/reg/2003

webcharts pdf (FY 2003), http://www.usace army.mil/ew/cecwo/

reg/2002webcharts. pdf (FY 2001 and FY 2002)

Mitigation Under the Clean Water Act Section

404(b)(1) Guidelines (Feb. 6, 1990)."° The guidelines

make no mention of the new standard performance

requirements of section 306 for the simple reason

that section 404 is not intended to regulate the type

of sources — such as wastewater from froth-flotation

processes — subject to those requirements.

Despite these guidelines, actual implementation

of the section 404 program has proven less than

adequately protective of our Nation’s waters. Corps

practice indicates that it pays little adherence to

avoidance of impacts. Although the agencies have a

“goal” of “no net loss of wetlands functions and val-

ues,” they have admitted that application of the

“appropriate and practicable” standard in any par-

ticular instance “may lead to individual permit deci-

sions which do not fully meet this goal because the

mitigation measures necessary to meet this goal are

not feasible, not practicable, or would accomplish only

inconsequential reductions in impacts.” Jd. In 2001,

the National Research Council concluded that “(t]he

goal of no net loss of wetlands is not being met for

wetland functions by the [section 404] mitigation

program, despite progress in the last 20 years.”

National Research Council, Compensating for Wet-

land Losses Under the Clean Water Act 2 (2001).

Scientists have found that “the section 404 permitting

" Available at http://www.usace.army.mil/ew/cecwo/reg/mou/

mitigate.htm.

‘' There is no similar “no net loss” goal for impacts permit-

ted to other waters of the United States under the 404 program

program has been fostering an 80 percent net loss of

wetlands.” R. Eugene Turner, et al., Count It by Acre

or Function -— Mitigation Adds Up to Net Loss of

Wetlands, National Wetlands Newsletter, November-

December 2001. There is no indication that the Corps’

implementation of the section 404 program is achiev-

ing any better results for other waters, such as lakes

and streams.

In short, section 404, which the Corps itself

acknowledges “was intended by Congress to provide a

vehicle for regulating materials whose effects include

the physical conversion of waters to non-waters,” 65

Fed Reg. 21,292, 21,293 (Apr. 20, 2000), does not

provide the regulatory structure to effectively safe-

guard the nation’s waters from discharges of indus-

trial pollutants or move us toward the statutory goal

of eliminating such discharges.

C. The Corps’ Approach in This Case

Marks a Radical Departure From Con-

gressional Intent and Past Agency

Practice.

1. Congress, the Corps, and _ the

Courts Have All Recognized the

Distinction Between Mining Proc-

ess Wastes and Fill.

While section 404 plays an important role in

regulating the discharge of dredge and fill material,

it was never meant to regulate contaminated waste-

water from mining or other industrial processes. One

of Congress’ principal goals in enacting the Clean

Water Act was to eliminate the ongoing practice

of using lakes and rivers for waste disposal. See

S. Rep. No. 92-414, at 7 (1971), reprinted in 1971

U.S.C.C.A.N. 3668, 3674 (“The use of any river, lake,

stream or ocean as a waste treatment system is

unacceptable.”). As Respondents explain in their

brief, Congress recognized that the disposal of mining

wastes was part of the problem, and it intended that

the industrial pollution controls articulated for the

first time in the 1972 amendments to the Clean

Water Act would apply to such disposal activities,

including specifically the disposal of slurried mine

tailings similar to the waste stream that will be

produced at Kensington Mine. See Brief of Respon-

dents’ at 40-44 (discussing congressional intent to

preserve EPA’s enforcement claims in Reserve Mining

Co. v. EPA, 514 F.2d 492 (8th Cir. 1975) when section

402 permits replaced discharge permits under section

13 of the Refuse Act, 33 U.S.C. § 407).

The process mining wastes discharged into Lake

Superior in Reserve Mining and the froth-flotation

process wastes to be disposed into Lower Slate Lake

in this case are similar to each other and categori-

cally distinct from the mine “overburden” at issue in

such mountain-top removal cases as Kentuckians

for the Commonwealth v. Rivenburgh, 317 F.3d 425

(4th Cir. 2003). That case involved burying valley

waterways with rock and soil left over from the strip

mining process.” Because the material was not the

result of a chemical process regulated by an applica-

ble effluent guideline, Kentuckians did not raise the

issue of whether section 404 was appropriate for the

discharge of toxic mine waste slurries that are subject

to national standards of performance.

In Kentuckians, the Corps argued that section

404 regulations were “designed to address changes

that convert waters of the U.S. to dry land” whereas

the focus of section 402 is on “wastewater from indus-

trial operations.” Jd. at 446 (“Fill material differs

fundamentally from the types of pollutants covered

by section 402 because the principal environmental

concern is the loss of a portion of the water body

itself.”) (quoting 65 Fed. Reg. at 21,293). The Fourth

Circuit upheld as permissible the Corps’ definition of

“fill material” to mean “all material that displaces

water or changes the bottom elevation of a water

body except for ‘waste’ - meaning garbage, sewage,

and effluent that could be regulated by ongoing efflu-

ent limitations as described in § 402.” Id. at 448

(emphasis added). Thus, Kentuckians (and the Corps)

recognized that industrial waste subject to section

402 effluent limitations is not “fill” within the mean-

ing of section 404.

* Amici agree with the district court in Kentuckians and

strongly oppose the issuance of section 404 permits for the

disposal of mine overburden in U.S. waters as such disposal

activities cannot meet the standards applicable to the issuance

of such permits

While the proposed Kensington Mine discharge

will raise the bottom elevation of Lower Slate Lake by

over 50 feet, JA 519a, thereby smothering benthic

habitat and decimating ecological function, it also will

have the effect of dramatically degrading water

quality through the introduction of harmful indus-

trial pollutants, pollutants whose discharge is limited

by an applicable standard of performance. Jd. 192a.

In fact, nearly all aquatic life in the lake will be

destroyed by the effects of the discharge, and it is not

clear that a functional ecosystem can ever be re-

stored. Id. 522a. The Kensington Mine discharge will

use a natural lake as a disposal site for contaminated

industrial process wastes. Petitioners’ approach thus

threatens to return the nation to the days when

polluters deliberately used our public lakes and rivers

as private dumping grounds — a practice that served

as one of the key drivers for the 1972 revamping of

the Clean Water Act.

2. EPA Has Long Recognized that Dis-

charges from the Industrial Proc-

essing of Mining Wastes Are Subject

to Section 306 and Section 402 of

the Clean Water Act.

Until now, the federal agencies have not disputed

that mining process waste slurries constitute indus-

trial discharges subject to effluent limitations and the

NPDES permit program, even if they also contain

solids that may physically alter waters of the United

States. In 1982, EPA exercised its authority under

section 306 of the Clean Water Act to establish a “no

discharge” standard of performance for process

wastewater into waters of the United States from

new mills that use froth-flotation for beneficiation of

gold ore — precisely the process at issue here. 40

C.F.R. § 440.104(b)(1). Congress directed EPA to

impose the most stringent technology-based effluent

limitations, called standards of performance, under

section 306 because “{njew facilities have the oppor-

tunity to implement the best and most efficient. ...

wastewater technologies,” including technologies

applicable to ore mining and mill processes. 47 Fed.

Reg. 25,682, 25,696 (June 14, 1982). Section 306

standards of performance must reflect “the greatest

degree of effluent reduction which the Administrator

determines to be achievable through application of

the best available demonstrated control technology,

processes, operating methods, or other alternatives,

including, where practicable, a standard permitting

no discharge of pollutants.” 33 U.S.C. § 1316(a)(1).

Once a standard of performance is adopted, all new

sources must comply; there are no variances avail-

able. E.J. du Pont de Nemours & Co. v. Train, 430

U.S. 112, 138 (1985).

EPA has expressly recognized that the froth-

flotation standard, like other section 306 standards of

performance and section 301 effluent limitations, is

implemented for individual mining and mill opera-

tions through NPDES permits issued by state permit-

ting authorities or EPA under section 402. 47 Fed.

Reg. 54,598, 54,606 (Dec. 3, 1982). The subsequent

effort by EPA and the Corps to clarify the definition of

“fill material” did not alter this fact or negate the

applicability of sections 306 and 402 to mine process

wastewater. In the preamble to the final rule, the

agencies stated unequivocally that, “[nJor does today’s

rule change any determination we have made regard-

ing discharges that are subject to an effluent limita-

tion guideline and standards, which will continue to

be regulated under section 402 of the CWA.” 67 Fed.

Reg. 31,129, 31,135 (May 9, 2002). Since EPA deter-

mined that a zero-discharge standard was achievable

for new froth-flotation gold processing facilities more

than two and a half decades ago, the Corps has never

attempted to issue a section 404 permit for such an

operation — until the Kensington Mine project.”

In sum, the issuance of a section 404 permit for

the discharge of industrial mining process wastes into

waters of the United States is a startling departure

from the Corps’ and EPA’s prior interpretations and

past actions. It also flies directly in the face of section

306, which (when combined with the existing stan-

dard of performance for this industry) unambiguously

prohibits the discharge of wastewater from new gold

ore froth-flotation processing facilities into waters of

" The Corps occasionally grants section 404 permits to

mining operators for construction of man-made tailings ponds

when that construction impacts waters and wetlands under the

Corps’ jurisdiction. However, section 404 permits do not author-

ize the introduction of mining waste slurries into waters of the

United States; a separate section 402 permit is required for that

discharge activity.

the United States. Accordingly, the court of appeals’

decision should be affirmed.

Il. PETITIONERS’ NEW INTERPRETATION

OF SECTION 404 VIOLATES THE CLEAR

LANGUAGE OF THE CLEAN WATER ACT

AND UNDERMINES THE ACT’S BASIC

REGULATORY FRAMEWORK.

Beyond allowing the pollution of Lower Slate:

Lake, the Corps’ approach in this case threatens to

fundamentally alter and weaken the long-standing

Clean Water Act regulatory structure by blurring the

distinction between the section 402 and section 404

programs across many industrial categories, not just

the mining industry. Moreover, a reversal of the

decision below will undermine the principles of coop-

erative federalism embedded in the Clean Water Act

by shifting responsibility for implementation and

enforcement of discharge standards that affect water

quality away from state and local agencies.

A. Applying Section 404 to Industrial

Waste Discharges Directly Conflicts

With Sections 306 and 402 and Would

Allow Many Mining and Other Indus-

trial Wastes to Avoid Effluent Limita-

tions.

Petitioners’ and the Corps’ interpretation of the

Clean Water Act threatens to fundamentally alter

the regulation of this country’s industrial process

discharges, including but not limited to mining

wastes. Their expansive view of section 404 could

allow toxic and other industria! pollutants from whole

categories of regulated industries to escape section

306 standards of performance and NPDES effluent

limitations merely because a facility’s waste stream

also contains sediment or settleable solids. Some

industrial facilities may even have an incentive to

add sand or other solids to their waste in order to

invoke the section 404 process and thereby to evade

the more stringent and more appropriate standards

applicable under section 402. See 33 U.S.C. § 1342

(exempting discharges authorized under section 404

from the section 402 permit requirements). At the

very least, a reversal of the lower court’s clear deci-

sion would blur the regulatory line and open the door

for industry to argue in every close case that the

Corps should have authority to permit industrial

wastewater discharges, rather than complying with

applicable standards enforced via the section 402

permitting program.

Most obviously at risk are waters currently

protected by existing standards for the mining of ore

and the subsequent processing of such metals as

titanium, platinum, iron, and mercury, including the

froth-flotation gold mining process at issue here. See

40 C.F.R. Part 440. Standards for coal mining, which

apply to coal preparation plants and associated areas,

acid or ferruginous mine drainage, postmining areas,

coal remining, and western alkaline coal mining,

would also be implicated. See 40 C.F.R. Part 434.

Other effluent limits and standards of performance

apply to approximately 20 subcategories of mineral

mining related activities, including the mining of

crushed stone, sand and gravel, borax, phosphate

rock, sodium sulfate, and several other minerals. See

40 C.F.R. Part 436. If Petitioners’ interpretation

prevails in this case, there is little to stop facilities

engaged in each of these mining categories from

seeking a section 404 dredge and fill permit for their

industrial process waste streams in lieu of meeting

more protective section 306 and section 402 require-

ments.

But well beyond mining operations, most indus-

trial discharges contain solids that are regulated

under the section 402 program. Many of the other 50-

plus categories of point sources for which the EPA has

promulgated standards and guidelines over the years

discharge effluent with high solids content. For

example, the EPA has promulgated standards for 12

subcategories of dairy products processing, 40 C.F-R.

Part 405; 10 subcategories of grain mills, 40 C.F-R.

Part 406; three subcategories of cement manufactur-

ing, 40 C.F.R. Part 411; 9 subcategories of leather

tanning and finishing, 40 C.F.R. Part 425; 16 sub-

categories of timber products processing, 40 C.F.R.

Part 429; and 12 subcategories of meat and poultry

products processing, 40 C.F.R. Part 432. These and

other categories of discharges typically contain high

volumes of solids. See, e.g., 51 Fed. Reg. 24,974, 24,988

(July 9, 1986) (explaining treatment technology to

address excess solids in dairy products processing); 67

Fed. Reg. 8,582, 8,590, 8,595-97 (Feb. 25, 2002)

(noting that untreated wastewater from meat and

poultry facilities contains high concentrations of

solids and that primary treatment technology focuses

on the removal of floating and settleable solids).

Altogether, more than 65,000 industrial and

municipal sources are regulated under NPDES

permits and subject to technology-based effluent

limitations or standards of performance. See EPA,

Technical Support Document for the 2004 Effluent

Guidelines Program Plan (2004) at 4-6. To the

extent that these discharges arguably may alter the

bottom elevation of a receiving water, countless

facilities could seek the shelter of section 404 dredge

and fill permits in lieu of their present section 402

permits. Even if such efforts were ultimately unsuc-

cessful in some cases, the regulatory signal sent by

Petitioners’ and the Corps’ new interpretation of the

“fill material” rule is likely to generate significant

future uncertainty and litigation by blurring the long-

standing demarcation between the Clean Water Act’s

two distinct permitting programs.

The incentive created by this new interpretation

undermines decades of EPA effort to reduce industrial

discharges of solids and sediments, which are prob-

lems in their own right. Sediments like sand, silt, and

clay are among the greatest threats to water quality

‘* Available at http://www.epa.gov/guide/304m/tsd.pdf.

in the United States." See Bernard J. Nebel & Rich-

ard T. Wright, Environmental Science: The Way the

World Works 281 (1993). In addition to blocking out

light, and thus limiting photosynthesis, sediments

that settle along the bottom of a water body smother

organisms and bury habitat. Jd. Sediments critically

affect fisheries and drinking water, causing over

$16 billion in environmental damage annually. See

Mid-America Regional Council, What is Sediment

Pollution?”

A major category of pollutant regulated under the

NPDES program is total suspended solids (“TSS”). 40

C.F.R. § 401.16; defined in 40 C.F.R. Part 136. Sus-

pended solids are considered pollutants because of

their adverse effects on water quality, particularly the

impacts of turbidity on fish. See Neville Ward, The

Problem of Sediment in Water for Fish 2 (1992)."

Under sections 301 and 306, EPA has promulgated

dozens of effluent limitation guidelines and standards

of performance covering TSS for a wide range of

* EPA defines sediment as “[pjarticulate organic and

inorganic matter that accumulates in a loose, unconsolidated

form on the bottom of natural waters.” EPA, EPA Terminology

Services, available at http://iaspub.epa.gov/sor_internet/registry/

termreg/searchandretrieve/termsandacronyms/search.do.

" Available at http://www.epa.gov/nps/toolbox/other/KSMO_

Sediment pdf.

" Available at http://www.mnr.gov.on.ca/MNR_E005389. pdf.

industrial sources and discharges,” including mining

slag and tailings.” See, e.g., 40 C.FR. § 421.244

‘* Examples of EPA effluent limitations that restrict total

suspended solids include: Grain Mills, 40 C.F.R. § 406.16;

Aluminum Smelting, 40 C.F.R. § 421.22; Copper Refining, 40

C.F.R. §§ 421.52, 421.54; Lead Manufacturing, 40 C.FR.

§§ 421.72, 421.132, 421.134; Zinc Manufacturing, 40 C.F.R.

§ 421.84; Metallurgic Acid Plants, 40 C.F.R. §§ 421.92, 421.94;

Tungsten Manufacturing, 40 C.F.R. §§ 421.102, 421.104; Colum-

bium-Tantalum Manufacturing, 40 C.F.R. §§ 421.112, 421.114;

Silver Manufacturing, 40 C.F.R. §§ 421.122, 421.124; Antimony

Manufacturing, 40 C.FR. §§ 421.142, 421.144; Beryllium

Manufacturing, 40 C.F.R. §§ 421.152, 421.154; Germanium and

Gallium Manufacturing, 40 C.F.R. §§ 421.182, 421.184; Indium

Manufacturing, 40 C.F.R. § 421.194; Mercury Manufacturing, 40

C.F.R. § 421.204; Molybdenum and Rhenium Manufacturing, 40

C.F.R. §§ 421.212, 421.214; Molybdenum and Vanadium Manu-

facturing, 40 C.F.R. §§ 421.222, 421.224; Nickel and Cobalt

Manufacturing, 40 C.F.R. §§ 421.232, 421.234; Nickel Manufac-

turing, 40 C.F.R. § 421.244 (slag tailings); Precious Metals and

Mercury Manufacturing, 40 C.F.R. §§ 421.252, 421.254; Precious

Metals Manufacturing, 40 C.F.R. §§ 421.262, 421.264; Rare

Earth Metals, 40 C.F_R. § 421.274, Tantalum Manufacturing, 40

C.FR. §§ 421.282, 421.284; Tin Manufacturing, 40 C.FR.

§§ 421.292, 421.294; Titanium Manufacturing, 40 C.FR.

§§ 421.302, 421.304; Tungsten and Cobali Manufacturing, 40

C.F.R. §§ 421.312, 421.314; Uranium Manufacturing, 40 C.F.R.

§§ 421.322, 421.324; Zirconium and Hafnium Manufacturing, 40

C.F.R. §§ 421.332, 421.334; Timber Products Processing, 40

C.F.R. § 429.111; Coal Mining, 40 C.F.R. Part 434, App. B; and

Ferroalloy Slag Processing, 40 C.F.R. § 424.32.

" The Compact Oxford Dictionary defines “slag” as “stony

waste matter separated from metals during the smelting or

refining of ore.” The Compact Oxford Dictionary (3d ed.), avarl-

able at http://www.askoxford.com/concise_oed/slag. “Tailings” is

defined by EPA Terminology Services as “(rlock and other waste

materials removed as impurities when minerals are mined and

mineral deposits are processed.” EPA, EPA Terminology Services,

(Continued on following page)

(nickel slag tailings); 40 C.F.R. § 421.222, § 421.224

(molybdenum and vanadium tailings). TSS limita-

tions generally require the reduction of solids before a

waste stream is discharged into waters of the United

States, and they often require the complete removal of

all suspended solids from new point sources” — pre-

cisely the opposite result achieved by the Corps’ new

expansive interpretation of section 404. Dischargers

currently subject to TSS limitations would have every

incentive to circumvent those limitations through a

request for a section 404 permit in place of their

NPDES permit.

B. Applying the Section 404 Permitting

Scheme to Industrial Waste Discharges

Undermines the Role of the States in

the Section 402 Permitting Program

and Reallocates Power to the Federal

Government, Contrary to Congress’

Explicit Intent.

As the Court has noted, the Clean Water Act

expressly establishes that it is the “‘policy of Con-

gress to recognize, preserve, and protect the primary

responsibilities and rights of the States to prevent,

reduce, and eliminate pollution....’” Rapanos uv.

available at http://iaspub.epa.gov/sor_internet/registry/termreg/

searchandrctneve/termsandacronyms/search.do.

* See, e.g., Aluminum Smelting, 40 C.F.R. §§ 421.24, 421.34

(setting discharge level for TSS at zero); Lead Manufacturing, 40

C.F.R. § 421.74 (same).

United States, 547 U.S. 715, 737 (2006) (plurality

opinion) (quoting 33 U.S.C. § 1251(b)). In the decades

since Congress penned those aspirational words, the

section 402 permit program has blossomed into a

successful example of cooperative federalism, with

EPA setting minimum national discharge standards

and 46 states using their delegated NPDES permit

authority to implement and, where appropriate,

augment those standards to protect local water

quality for a variety of desired human and ecological

uses. The section 404 permit program has taken the

opposite path; as explained above, the Corps makes

most permitting decisions with little involvement

from EPA, state and local officials, or the public.

If widely adopted, the Corps’ approach at the

Kensington Mine facility threatens to shift significant

responsibility for water quality protection from the

state and local level to the federal government. At the

very least, mining facilities will have an incentive to

move away from the section 402 program and into the

shelter of section 404 permits; if other industrial

facilities follow suit, states will be forced to relinquish

their primary authority for setting and enforcing

effluent limits and managing local water quality

through the NPDES permit system.

III. KENSINGTON MINE HAS VIABLE AL-

TERNATIVES TO DISPOSING INDUS-

TRIAL WASTE IN NATURAL LAKES.

Petitioners and their supporting amici present

the Court with a false dilemma —- either allow dis-

posal of the froth-flotation process waste into Lower

Slate Lake and destroy the ecosystem or force Ken-

sington Mine to comply with the law and destroy the

business. In fact, conventional methods for disposing

of mining waste that do not violate the Clean Water

Act exist and are used in many other places. These

include “dry stacking,” paste disposal, and artificial

ponds that operate as waste treatment facilities for

the harmful pollutants contained in process wastewa-

ter. Some of these alternatives were considered by,

and even supported by, the Kensington Mine project

proponent.

A. Dry Stacking

The original plan for the Kensington Gold Mine,

submitted to the EPA in 1997, proposed the construc-

tion of a “dry tailings facility” - also known as “dry

stacking” — which would have dewatered the process

wastewater and placed the solid tailings in a dry

facility on land. JA 165a. Eventually, the dry tailings

would be covered and restored to support natural

vegetation. The EPA determined in 1997 that this

disposal plan was environmentally preferable to lake

disposal. /d. 21la-212a. Petitioner Ceour Alaska had

received a permit from the Corps and EPA for the dry

tailings facility, and its plan of operations was

approved by the U.S. Forest Service in 1997. Jd. 165a.

After a decline in gold prices, however, the company

terminated its dry tailings plan and sought a cheaper

way to dispose of its wastewater. See Southeast

Alaska Conservation Council v. U.S. Army Corps of

Eng’rs, 486 F.3d 638, 641 (9th Cir. 2007).

B. Paste Disposal

After losing the appeal below, Coeur Alaska

entered into negotiations with Respondents, mediated

by the mayor of Juneau, to explore alternative dis-

posal methods that would not violate the Clean Water

Act. The parties agreed to a solution that would

deposit the tailings as “paste” near Alaska’s Lynn

Canal without discharging any process wastewater

into waters of the United States. Similar to dry

stacking, paste disposal methods involve surface

disposal of mine wastes, but allow for pumping of

mud-like tailings. This alternative disposal approach

was submitted to EPA for the Kensington Mine in

January 2007. When this Court granted Petitioners’

petition for certiorari, however, Coeur Alaska dropped

its pursuit of the alternate permit.”'

*“ See Press Release, Coeur d'Alene Mines (Sept. 23, 2008),

available at http://phx.corporate-ir.net/phoenix.zhtml?c=86472&

p=irol-newsArticle&ID=1200286; see also Mine Gives Up

Permits Pursuit, SpokesmanReview.com, Sept. 26, 2008, http://

www.spokesmanreview.com/business/story. asp?1D=26217 1.

C. Man-Made Holding Facilities for Mine

Tailings

Man-made holding facilities, often referred to as

man-made or artificial ponds, have been a conven-

tional storage method for slurried mining waste for

the last 30 years and are used widely in Alaska. This

alternative, however, was never considered or pro-

posed in Coeur Alaska’s application for a permit from

the Corps and EPA. These holding facilities for mine

tailings are constructed specifically as waste treat-

ment facilities for mining discharges where the refuse

material is ponded to allow the settlement of solid

particles from the water it is carried in. See Hossein

et al., A Brief Survey of Current Surface Waste Dis-

posal Practices in the Metal Mining Industry, 7 Int'l

J. Mining, Reclamation, & Env’t 23 (1993). The

ponded water stores the toxic chemicals used in froth-

flotation processes and contained in the resulting

slurry. Mine operators using man-made holding

facilities must obtain a section 404 permit if the

construction will require dams, diversions, or will

otherwise affect waters of the United States. How-

ever, a section 402 permit is required if the holding

facility will discharge the treated material into a

natural water body to ensure that any such discharge

complies with the Clean Water Act’s effluent limita-

tions and standards of performance.

The practice of using man-made holding facilities

for mining waste is similar to practices used to con-

tain contaminated dredged material. While non-

industrial dredge and fill activities require a section

404 permit, if the sediments contain other pollutants,

such as heavy metals, EPA requires a section 402

permit implementing technology-based standards for

any discharge into a natural body of water. See K.R.

Demars et al., Dredging, Remediation, and Contain-

ment of Contaminated Sediments 195-96 (1995).

Coeur Alaska’s proposal is thus unlike the standard

methods for disposing of mine processing wastes or

the standard methods for treating contaminated

dredged material.” It runs counter to the Clean

Water Act and threatens to turn back the clock on

more than three decades of water quality improve-

ment.

“ The key point is that natural waters of the United States

cannot properly be used as a treatment facility for industrial

waste, as proposed by Coeur Alaska. Instead, Coeur Alaska

could create an artificial holding facility in an upland area not

connected to or created from natural waters of the United

States.

CONCLUSION

For the foregoing reasons, and the reasons set

forth in Respondents’ and other supporting amicus

briefs, the decision below should be affirmed.

Dated: November 14, 2008

Respectfully submitted,

DEBORAH A. SIVAS*

LEAH J. RUSSIN

ENVIRONMENTAL LAW CLINIC

MILLS LEGAL CLINIC AT

STANFORD LAW SCHOOL

Crown Quadrangle

559 Nathan Abbott Way

Stanford, California 94305

(650) 723-0325

*Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.