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

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Nos. 07-984 and 07-999

In The

Supreme Court of the Anited States

COEUR ALASKA, INC.,

Petitioner,

SOUTHEAST ALASKA

CONSERVATION COUNCIL, et al.,

Respondents.

ALASKA,

Petitioner,

SOUTHEAST ALASKA

CONSERVATION COUNCIL, et al.,

Respondents.

On Writs Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

BRIEF FOR THE HONORABLE G. TRACY MEHAN, III,

FORMER ASSISTANT ADMINISTRATOR

FOR WATER AT THE U.S. ENVIRONMENTAL

PROTECTION AGENCY AS AMICUS CURIAE

IN SUPPORT OF RESPONDENT

ROBERT W. ADLER

AMY J. WILDERMUTH*

UNIVERSITY OF UTAH

S.J. QUINNEY COLLEGE OF LAW

332 South 1400 East, Room 101

Salt Lake City, UT 84112

(801) 581-6833

*Counsel of Record

“KOE LAW BRIFF PRINTIN ) ROO) 225 69R4

IRCA! OL! CT ian? 2-255

TABLE OF CONTENTS

Page

INTRODUCTION AND INTEREST OF THE

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ha erticcsicinaiednennibiiiiennnnentndeninennes 1

SUMMARY OF ARGUMENT .......0.......ceeeeeeeeees 5

I iiiiiieistinebenniiihdninieniinndiiieniaaimneiadbinminien 7

I. THE LANGUAGE, STRUCTURE, AND

PURPOSES OF THE CLEAN WATER

ACT REQUIRE THAT THE PROCESS

WASTEWATER DISCHARGES FROM

THE KENSINGTON MINE BE SUBJECT

TO THE MANDATORY NEW SOURCE

PERFORMANCE STANDARDBG ................. 7

A. Section 306 Imposes Mandatory

Pollution Control Obligations ............... 7

B. Section 402 Effectuates the Mandatory

Applicable Treatment Standards.......... 9

1. Section 402 is the Proper

Permitting Mechanism for Coeur

Alaska’s Proposed Discharge ........... 11

2. Section 404 Cannot Be Used to

Exempt This Facility from Manda-

Re cinicinrdneinenpaiiisbniansiiiddamreiners 14

3. The EPA and Corps’ Definition of

Fill Cannot and Should Not Be

Read As Displacing the Clear

Statutory Commands of the Clean

I diac icici asl ccpuiaencieaiinnditen 17

IT.

ITT.

TABLE OF CONTENTS - Continued

Page

Petitioners’ Statutory Claims Mis-

understand the Relationship Between

Sections 402 and 404.........ccoccsssccessesesoses

DISCHARGE REQUIREMENTS ESTAB-

LISHED BY REGULATION CANNOT BE

MODIFIED IN PERMITS .............. cece e sees

This Court Rejected a Similar, But

Less Extreme, Argument in E. I. du

Pont de Nemours & Co. v. Train ...........

Allowing the Secretary to Confer

Unbridled Exemptions Through

Section 404 Would Render Congress’

Carefully-Defined Statutory Variances

I i nciiinnsedndniinnialendiantmninmmabesdene

EXEMPTING THE PROPOSED DIS-

CHARGES FROM NSPS VIOLATES FUN-

DAMENTAL STATUTORY GOALS............

Allowing This Discharger to Evade the

NSPS Would Contravene the Zero

NI, eiticncarsancicacinuncecpcnstuencunees

The Exemption Granted Here Defeats

the Uniformity Mandated by Congress,

and Unfairly Favors Some Sources

SD ecisditcscosinisttiasescaicciinesbeilgniindenashasieiasiagion

TABLE OF CONTENTS -— Continued

Page

C. Allowing Untreated Discharges to

Destroy a Pristine Lake Makes a

Mockery of the Statutory Objective to

Restore and Maintain the Integrity of

a Ey WHO ecnttanecescscnsncnicninneces 39

CIS ctscsitstnicscsinssevesstencencnsesvenasttonsosaseinese 41

TABLE OF AUTHORITIES

Page

CASES

Am. Frozen Food Inst. v. Train, 539 F.2d 107

ETE eee ce ae nee a 35

Am. Iron and Steel Inst. v. EPA, 568 F.2d 284

(Sd Civ. 2977)......cccccecese a eR TONES ET Te 9,31

Am. Iron and Steel Inst. v. EPA, 115 F.3d 979

Erne En ee 10

Am. Paper Inst. v. Train, 543 F.2d 328 (D.C.

Re ee a ee ne ee ne eT oe 13

Arkansas v. Oklahoma, 503 U.S. 91 (1992).....5, 12, 40

Bragg v. Robertson, 72 F. Supp. 2d 642 (S.D.W.

a aaa ae eal 24, 25

Chem. Mfrs. Ass’n v. EPA, 870 F.2d 177 (5th

a sieeaesiiamsnnbeliciin 32

Chem. Mfrs. Ass’n v. Natural Res. Def. Council,

Inc., 470 U.S. 116 (1985)...................... ..36, 38, 39

Chevron v. Natural Res. Def. Council, 467 U.S.

SRE EES ee Re een Renee a ee Oe 17

Cooper Indus., Inc. v. Aviall Servs., Inc., 543

a ceceseecbae li

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

Ne a I idaintiitisinstitigaiviinies sivntineinnnlisiedinenenneain passim

EPA v. California ex rel. State Water Res.

Control Bd. , 426 U.S. 200 (1976)............................ 12

EPA v. Nat’l Crushed Stone Ass'n, 449 U.S. 64

a la Sdcbasadeleanmanannaeninl 12, 34, 38

TABLE OF AUTHORITIES - Continued

Page

Indus. Union Dept., AFL-CIO v. Am. Petroleum

ae I ey I CE eeceeseeesiniiinaiciiandiiitanimenes 29

Kentuckians for the Commonwealth, Inc. v.

Rivenburgh, 317 F.3d 425 (4th Cir. 2003).............. 26

Milwaukee v. Illinois (Milwaukee II), 451 U.S.

BL TIT Ascinsiccotsinsnicibdascivisndinnsbanilabeniuepaniaeiiaapameniniiiaided 7,12

Minnesota by Spannaus v. Hoffman, 543 F.2d

ace ieee alien 10

Pub. Employees Ret. Sys. of Ohio v. Betts, 492

Ss ID css siunsinisseetpsiiilaminiaiatandamngaiidiiddaabetdiaad 17

PUD No. 1 v. Wash. Dep't of Ecology, 511 U.S.

Sey TTD is cicicssicinininilisiiecieiuimucaiianeccdsbaaeanaiaanineaiitiad 40

Res. Invs. Inc. v. U.S. Army Corps of Eng'rs,

151 F.3d 1162 (Oth Cir. 1906)..........ccccccccccccceees. 19, 20

Riverkeeper, Inc. v. EPA, 358 F.3d 174 (2d Cir.

IIIs ssncsiaciisisieihadslideiaiinpachshmeedapiidideih ticlateataiieit al eee eae 36

Rybachek v. EPA, 904 F.2d 1276 (9th Cir. 1990)........ 13

U.S. Steel Corp. v. Train, 556 F.2d 822 (7th Cir.

TITUT TP iatsincdsineanasanticcneniavendindiilacsamdenimaianiniabaandiaaiedial 13

United States v. Johnson, 529 U.S. 53 (2000) ..... 33, 34

United States v. Riverside Bayview Homes,

we oe Bt: ree 40

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

STIL, SII ico sieisnceieneiendsdiamdelaiimatentiasaaiaaalant 13, 35, 39

White v. United States, 543 F.3d 1330 (Fed. Cir.

LRT EM ee Se NEN a wre wee, aL Raat aE Ewe 17

TABLE OF AUTHORITIES — Continued

Page

STATUTES

EET ee 17

a a sii ernansinetnnnenennl 37, 40

a sascmceccinpnssesienceiaiiiminenets 15

ET stsede 5, 7

asc ns cra scntenidtininnnonsemnanlcitin 7,8

an sa eeeernebeelinhill 34

I aeenclemceloeitebiinl 8

I ce. assneteensenianibonaiiii 35, 36

a sesieipenetiimiiaiainll 36

a 8, 9 16, 37

ese csnanniseeieaeiinnennesneill 8

a encniabadionauninaiand 6

A ee eS 10, 14

33 U.S.C. $ 1342(0).............. csi cilcbeeienincailaleliachedclanaseenidiiadas 14

EIS a 14,16

EEE a Se ae 15

a a icin tatinenesiagnulbidantl 10,15

a scialapasensonmnseieeionsen 15

I . cscouatunientedenintusaosaniiion 16

Vii

TABLE OF AUTHORITIES — Continued

Page

REGULATIONS AND REGULATORY MATERIALS

I I sciccnsnsnscereccsananconeniensiontiin 19

es te ER vvccccvcscscsepcescccesesscesseneetnnsiiin 17

I accccnssceneneniinenencnsenneninnnnennsiti 19

ee ee I ciichnsicdcesesnescssscrcnnsecesenssusmentenn 17

40 C.F.R. § 440.104(b)(1) (2008)................... eee 2,9, 28

Kensington Venture Gold Mine Project, AK,

Tongass National Forest-Chatham Area,

Juneau Ranger District, 54 Fed. Reg. 43,189

TD cosine csitnintigmindipiteeliatoaiaiiinsibdndionmieneinennees 3

Final Revisions to the Clean Water Act

Regulatory Definitions of “Fill Material” and

“Discharge of Fill Material,” 67 Fed. Reg.

ms 7: 2 S| | nen 22, 23, 24, 26

Ore Mining and Dressing Point Source

Category Effluent Limitations Guidelines

and New Source Performance Standards, 47

Fed. Reg. 54,598 (Dec. 3, 1982) .................cesseceeerees 2

Proposed Revisions to the Clean Water Act

Regulatory Definitions of “Fill Material” and

“Discharge Fill Material,” 65 Fed. Reg.

21,292, 21,294 (Apr. 20, 2000)......... 19, 20, 22 25, 26

vill

TABLE OF AUTHORITIES — Continued

OTHER AUTHORITIES

Clean Water Act Definition of Fill Hearing

Before Subcomm. on Clean Air, Wetlands,

and Climate Change of the S. Comm. on

Environment and Public Works, 107th Cong.

(Testimony of Benjamin H. Grumbles,

Deputy Assistant Administrator, Office of

Water, United States Environmental

Protection Agency and George S. Dunlop,

Deputy Assistant Secretary of the Army

(Policy and Legislation)) (June 6, 2002),

available at _ http://epw.senate.gov/107th/

Grumbles OGOGOB.Dtam............0.000cc0000..2..20. 19,

H.R. Rep. No. 92-911, at 76-77 (1972) (Conf.

ai cilciconsitiitiaseilbitaiatilsinatincbnideabnicivateitinlesaitibaniaiiaainaes

H.R. Rep. No. 95-830, at 105 (1977) (Conf.

Rep.), reprinted in 1977 U.S.C.C.A.N. 4424,

ii teniestasiiisbebctinshiasdstaonanediaduideneinbannnimnadtaaianidieane

Qs and As on the “Fill” Rule at 2, http://www.

usace.army.mil/cw/cecwo/reg/fillqas.pdf...........

S. Rep. No. 92-414, at 76 (1972) (Conf. Rep.),

reprinted in 1972 U.S.C.C.A.N. 3668, 3742 .....

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, TECHNICAL RESOURCE DOCUMENT

EXTRACTION AND BENEFICIATION OF ORES AND

MINERALS: GOLD, Vol. 2 1-59 (Aug. 1994),

available at http://www.epa.gov/osw/nonhaz/

industrial/special/mining/techdocs/gold/goldch 1.

Page

21, 24

ieee 40

INTRODUCTION AND INTEREST

OF THE AMICUS CURIAE

The parties’ consent to the filing of this brief was

filed with the Clerk of this Court in accordance with

Supreme Court Rule 37.’

Amicus Curiae G. Tracy Mehan, III, has held

several positions in which he was charged with

implementing the Clean Water Act (CWA) and its

various programs. From 2001 to 2003, Mr. Mehan

served as the Assistant Administrator for Water at

the United States Environmental Protection Agency

(EPA). Accordingly, Mr. Mehan has a keen interest in

ensuring that the integrity of the statutory structure

of the Clean Water Act is preserved. Most importantly

here, because he was in charge of the office that

developed the “fill” rule at issue in this case, Mr.

Mehan is interested in seeing that the rule is prop-

erly understood and implemented.

STATEMENT

1. In 1982, the EPA promulgated new dis-

charge standards for facilities engaged in mining

' In accordance with Supreme Court Rule 37.6, Amicus

Curiae certify that no counsel for any party in this case au-

thored this bref in whole or in part, and furthermore, that no

person or entity, other than Amicus Curiae, has made a mone-

tary contribution specifically for the preparation or submission

of this bref.

and processing of metal ores. See Ore Mining and

Dressing Point Source Category Effluent Limitations

Guidelines and New Source Performance Standards,

47 Fed. Reg. 54,598 (Dec. 3, 1982). Under those rules,

the standard for all new mines that use a froth-

flotation milling process to extract gold allows no

discharge of process water into navigable waters,

unless certain narrow exceptions apply. See id.

54,602-03 (explaining that certain discharges are

allowed to specified limits where contaminants build

wp im recycled water and in excess rainwater and

runoff). The EPA found that, by 1982, existing mills

were achieving zero discharge “through total recycle

amé evaporation of process wastewater.” Jd. at 54,602.

Because New Source Performance Standards (NSPS)

“are based on the best available demonstrated tech-

nology” and “|njew plants have the opportunity to

install the best and most efficient production proc-

esses and wastewater treatment technologies,” id. at

54,600, the EPA concluded that it was appropriate to

require new mills to meet a standard that was being

met by a majority of existing mills, id. at 54,602.

Moreover, the agency concluded, based on evidence

that “[mlills currently achieving zero discharge are

located in areas ranging from flat to extremely steep

and mountainous,” “[zjero discharge [was] demon-

strated for a wide spectrum of topographical con-

straints.” Jd.

The zero-discharge standard adopted by the EPA

in 1982 remains the standard today. See 40 C.F.R.

$ 440.104(b\1) (2008). As a result, froth-flotation

mills built in the United States since January 17,

1983 (the effective date of the NSPS) that extract gold

must use tailings ponds to dispose of process waste.

2. In 1989 — nearly seven years after the EPA

promulgated the froth-flotation zero-discharge NSPS

— Petitioner Coeur Alaska, Inc. proposed to extract

gold from the Kensington Gold Mine in southeast

Alaska using a_ froth-flotation process. See

Kensington Venture Gold Mine Project, AK, Tongass

National Forest-Chatham Area, Juneau Ranger

District, 54 Fed. Reg. 43,189 (Oct. 23, 1989). Over the

past 20 years, Coeur Alaska has proposed three

different methods for disposing of its waste.

In 1990, Coeur Alaska proposed damming a

nearby waterway, Sherman Creek, and discharging

its process wastewater into the impounded waters.

The EPA and the Army Corps of Engineers (Corps)

never issued a permit for this proposed discharge. JA

288a-289a; 351a-352a.

In 1996, Coeur Alaska proposed to construct a

“dry tailings facility,” which would result in the

tailings being dried and then contained in an im-

poundment. Both the Corps and the EPA issued

permits to Coeur Alaska for this method of disposal.

JA 289a; JA 352a.

In 2004, Coeur Alaska again changed its disposal

plan. It proposed to release at least 210,000 gallons —

and perhaps as much as 510,000 gallons — of process

wastewater per day directly into nearby Lower Slate

Lake, a 23-acre subalpine lake. JA 480a; Resps. Br. at

4 & n.2. In order to isolate the waste that would be

placed in Lower Slate Lake from surrounding waters,

Coeur Alaska would be required to build a 500-foot

dam at the lake’s outfall as well as a series of diver-

sions, including a ditch through a wetland area and a

pipeline to divert Slate Creek around the lake. JA

523a; JA 484a.

If the permits issued in this case are upheld, over

the 10 to 15 year projected lifetime of the Kensington

mine, millions of gallons of wastewater and approxi-

mately 4.5 million tons of solid waste will be dumped

into the lake. JA 483a. It is estimated that the dis-

charge will raise the bottom of the lake 50 feet, and

will cause the surface area to increase from 23 acres

to 62 acres. JA 482a-483a. The discharge will contain

significant concentrations of several metals, including

aluminum, copper, lead, and mercury; the pH of the

effluent will be over 10, which is significantly higher

than the current pH of the lake. JA 522a. There is no

dispute that “all fish and most other aquatic life (such

as macroinvertebrates, periphyton, and zooplankton)

in Lower Slate Lake would be lost” during the years

of mining operations. JA 197a. Although Coeur

Alaska’s closure plan includes restoring fish popula-

tions to Lower Slate Lake when it ceases mining

operations, it is unclear what, if any, restoration will

be possible. JA 254a; 202a; 522a.

3. In response to a question about Coeur

Alaska’s new disposal plan, on May 17, 2004, EPA

Division Directors Diane Regas, James A. Hanlon,

and Geoffrey H. Grubbs sent a memo to EPA Region

X’s Director of the Office of Water, Randy Smith. JA

14la. They wrote that the discharge of the mine

waste into Lower Slate Lake fell under section 404 of

the Clean Water Act, which meant that the Corps

would be responsible for issuing a permit for that

discharge. JA 143a. Any other discharges to navigable

waters, such as those from the impoundment of

Lower Slate Lake, would require a permit from the

EPA under section 402 of the Clean Water Act. JA

143a.

In December 2004, the U.S. Forest Service ap-

proved Coeur Alaska’s revised plan of operations. JA

21la-212a. Consistent with the May 2004 memo’s

division of responsibility between the Corps and the

EPA, in 2005, the EPA issued a permit for three

proposed discharges of pollutants, none of which

included the discharge of the process mining waste

into the Lower Slate. JA 317a-331la. The Corps issued

a permit for the discharge of the process wastewater

into Lower Slate Lake. JA 266a-86a.

SUMMARY OF ARGUMENT

Section 301l(a) of the CWA provides: “Except as

in compliance with this section and sections |302,

306, 307, 318, 402, and 404] of this Act, the dis-

charge of any pollutant by any person shall be

unlawful.” 33 U.S.C. § 1311(a) (2002); see also Ar-

kansas v. Oklahoma, 503 U.S. 91, 101-02 (1992).

This section does not require a single discharger to

comply simultaneously with sections 302, 306, 307,

318, 402, and 404. Instead, it requires compliance

with all applicable sections of those listed.

The key issue in this case is which of the provi-

sions Congress listed in section 301l(a) apply to the

proposed discharge into Lower Slate Lake. Some of

the listed provisions (the balance of section 301 and

sections 302, 306, 307, and 318’) impose substantive

treatment obligations designed to fulfill the statutory

goals and purposes, while the remaining two provi-

‘sions (sections 402 and 404) are permitting devices

designed to effectuate the substantive requirements

of the statute.

The plain language and structure of the statute

requires that the proposed discharge into Lower Slate

Lake comply with the NSPS for gold mines using the

froth-flotation process, promulgated in 1982 pursuant

to section 306. Allowing the proposed discharges to

evade mandatory pollution control requirements

through the formalism of issuing a permit under

section 404, rather than under section 402, ignores

plain statutory text and the overall! statutory scheme,

eviscerates fundamental statutory goals, generates

perverse incentives for dischargers, and creates

unfair disparities among similar facilities.

* Section 318 applies to aquaculture projects and is not

relevant here. See 33 U.S.C. § 1328 (2002).

ARGUMENT

I. THE LANGUAGE, STRUCTURE, AND

PURPOSES OF THE CLEAN WATER ACT

REQUIRE. THAT THE PROCESS WASTE-

WATER DISCHARGES FROM THE KEN-

SINGTON MINE BE SUBJECT TO THE

MANDATORY NEW SOURCE PERFORM-

ANCE STANDARDS

A. Section 306 Imposes Mandatory Pollu-

tion Control Obligations

Section 301(a) prohibits “the discharge of any

pollutant by any person” except as in compliance with

the listed provisions. 33 U.S.C. § 1311(a) (emphasis

added); see Milwaukee v. Illinois (Milwaukee IT), 451

U.S. 304, 310-11 (1981). This conditioned discharge

prohibition is the statutory vehicle through which

Congress imposed specific treatment obligations,

which are designed to become increasingly stringent

and ultimately achieve the statutory goal of the

complete climination of discharges. See E. I. du Pont

de Nemours & Co. v. Train, 430 U.S. 112, 118-20

(1977).

Individual dischargers are not subject to all of

the substantive control provisions listed in section

301(a) simultaneously because different controls

apply to different facilities and in different circum-

stances. Thus, effluent limitations issued by the EPA

pursuant to section 301(b) impose technology-based

treatment obligations on existing sources, 33 U.S.C.

§ 1311(b),’ while NSPS issued by the EPA under

section 306 impose potentially stricter technology-

based treatment obligations on new sources, id.

§ 1316.

Each treatment requirement, however, is manda-

tory with respect to sources to which it applies.

Section 30l(e) unambiguously provides: “Effluent

limitations established pursuant to this section or

{section 302] shall be applied to all point sources of

discharge of pollutants in accordance with the provi-

sions of this chapter.” Jd. § 1311(e) (emphasis added).

Similarly, section 306 requires: “After the effective

date of standards of performance promulgated under

this section, it shall be unlawful for any owner or

operator of any new source to operate such source in

violation of any standard of performance applicable to

such source.” Jd. § 1316(e) (emphasis added).’

* Congress mandated limits based on the “best practicable

control technology currently available” (BPT) by 1977, 33 U.S.C.

§ 1311(bX 1A), and stricter limitations based on the “best

available technology economically achievable” (BAT) thereafter,

id. § 1311(b\ 2A). Intermediary treatment requirements apply

to conventional pollutants, based on the “best conventional

pollutant contro! technology.” Id. § 1311(b\2)(E).

* Likewise, Section 307 requires EPA to adopt mandatory

limitations for sources of toxic pollutants: “After the effective

date of any effluent standard or prohibition or pretreatment

standard promulgated under this section, it shall be unlawful

for any owner or operator of any source to operate any source in

violation of any such effluent standard or prohibition or pre-

treatment standard.” /d. § 1317/d) (emphasis added)

Once the proper category is determined for a

given source, the mandatory obligation of either

section 301(e) or section 306(e) applies. See Am. Iron

and Steel Inst. v. EPA, 568 F.2d 284, 307-08 (3d Cir.

1977) (invalidating regulation exempting facilities

once the EPA promulgated uniform limitations, and

holding that limitations apply to all sources within

the class).

The EPA promulgated NSPS for froth-flotation

process gold mines in 1982 and that standard re-

mains in effect. See 40 C.F.R. § 440.104(b)(1) (2008).

There is no dispute that the Kensington Mine quali-

files as a new source and will employ the froth-

flotation milling process to extract gold. Under the

plain language of section 306(e), it is unlawful for

Petitioners to operate in violation of those standards,

and it was unlawful for the Corps to issue a permit

allowing them to do so.

B. Section 402 Effectuates the Mandatory

Applicable Treatment Standards

Sections 402 and 404 are procedural mecha-

nisms designed to implement the substantive re-

quirements of the Act. Congress enacted section 402

* A “new source” is “any source, the construction of which is

commenced after the publication of proposed regulations

prescribing a standard of performance under this section which

will be applicable to such source, if such standard is thereafter

promulgated in accordance with this section” 33 USC.

§ 1316(aX 2).

to implement, inter alia, effluent limitations and

NSPS adopted by the EPA. 33 U.S.C. § 1342(a)

(2002). This section serves as the principal mecha-

nism for permitting discharges under the Clean

Water Act. See Am. Iron and Steel Inst. v. EPA, 115

F.3d 979, 990 (D.C. Cir. 1997) (“The centerpiece of the

CWA is the NPDES permitting program [of section

402].”).

Section 404, on the other hand, applies to a much

more limited category of discharges, and is not the

mechanism Congress adopted to effectuate effluent

treatment standards. See 33 U.S.C. § 1344(a) (2002).

Congress’ principal focus in section 404 was on the

ability of the Corps of Engineers to dredge waterways

to maintain and improve navigability for commerce,

and to permit disposal of the resulting dredged spoils

at specified sites. See Minnesota by Spannaus v.

Hoffman, 543 F.2d 1198, 1203-06 (8th Cir. 1976). As

such, section 404 created a separate permitting

mechanism for discharges of dredged and fill mate-

rial, whereas section 402 authorized the EPA and the

states to regulate other pollutants. Jd. at 1208

(“Unlike all other pollutants, dredged spoil is not

regulated under the NPDES.”).

Petitioners make a “category mistake” in arguing

that the agencies must choose between compliance

with the applicable NSPS under section 306 and the

permitting requirements in section 404. Petr. Coeur

Alaska Br. at 22-32; Petr. Alaska Br. at 34-35. The

first step under the Act is to identify the substantive

treatment requirements that apply to a particular

discharger. Here, section 306(e) plainly mandates

that the NSPS for froth-flotation gold mines applies

to the proposed Kensington Gold Mine. Next, the

agencies must apply the permitting mechanism that

properly implements the applicable substantive

requirements. Only section 402 does so.” The correct

statutory construction is one that fully effectuates the

law’s interlocking provisions. Cooper Indus., Inc. v.

Aviall Servs., Inc., 543 U.S. 157, 167 (2004) (“[The

Court] must, if possible, construe a statute to give

every word some operative effect.”).

1. Section 402 is the Proper Permit-

ting Mechanism for Coeur Alaska’s

Proposed Discharge

This Court has explained the carefully-designed

relationship between the substantive pollution con-

trols in sections 301, 306, and 307 and the permit

mechanism in section 402:

* Petitioners argue that their discharges meet the regula-

tory definition of “fill,” and therefore may be permitted under

section 404. Assuming they are correct, the discharges would

meet both the definition of “fill” for purposes of section 404, and

the definition of “pollutant” for purposes of section 402. Then

Petitioners argue further that section 404 does not by its own

terms mandate compliance with section 306, as section 402 dues.

That difference, however, only confirms that section 402 is the

proper permitting provision for this source. As discussed, infra,

however, the regulatory definition of “fill” cannot and does not

cover this discharge.

|[T|he Amendments establish the National

Pollutant Discharge Elimination System

(NPDES) as a means of achieving and enforc-

ing the effluent limitations. Under NPDES,

it is unlawful for any person to discharge a

pollutant without obtaining a permit and

complying with its terms. An NPDES permit

serves to transform generally applicable ef-

fluent limitations and other standards...

into the obligations .. . of the individual dis-

charger. ...

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

426 U.S. 200, 204-05 (1976), superseded by statute on

other grounds, 33 U.S.C. § 1323(a) (2002) (citations

omitted); see also Milwaukee Il, 451 U.S. at 311

(explaining that once the EPA promulgates effluent

limitations by regulation, those limitations are incor-

porated as permit conditions under section 402). In

Milwaukee I], this Court noted that a section 402

permit “directly subiects the discharger to the admin-

istrative apparatus established by Congress to

achieve its goals.” Jd. at 318. The permits “incorpo-

rate, as required hy the Act, the specific effluent

limitations established by EPA regulations... .” /d. at

319-20 (emphasis added) (citations omitted); see also

Arkansas v. Oklahoma, 503 U.S. at 101-02 (stating

that section 301l(a) prohibits discharges absent an

NPDES permit, and the NPDES permit is the pri-

mary means of enforcing effluent limitations); EPA v.

Nat'l Crushed Stone Ass'n, 449 U.S. 64, 71 (1980)

(interpreting section 402 to require that all discharg-

ers must obtain NPDES permits, which translate

generally applicable effluent limitations into individ-

ual obligations of dischargers).

The Courts of Appeals have also explained the

relationship between the permit mechanism in sec-

tion 402 and treatment requirements established by

EPA regulations:

[T]he permit-issuing system established by

section 402 of the Act, 33 U.S.C. § 1342, pro-

vides a procedure whereby the general efflu-

ent limitations for each class of point sources

are transformed by EPA, or some EPA-

approved state agency, into an authorization

for a specific plant or mil! to discharge efflu-

ents up to specified limits.

Weverhaeuser Co. v. Costle, 590 F.2d 1011, 1020 (D.C.

Cir. 1978); see Rybachek v. EPA, 904 F.2d 1276, 1283

(9th Cir. 1990) (“Through the Clean Water Act, Con-

gress has directed EPA to incorporate into the per-

mits increasingly stringent technology-based effluent

limitations.”); U.S. Steel Corp. v. Train, 556 F.2d 822,

830 (7th Cir. 1977), abandoned on other grounds by

City of West Chicago, Ill. v. U.S. Nuclear Regulatory

Comm'n, 701 F.2d 632, 644 (7th Cir. 1983) (explaining

role of NPDES permit to translate generally applica-

ble limitations into obligations of individual discharg-

ers); Am. Paper Inst. v. Train, 543 F.2d 328, 334 (D.C.

Cir. 1976) (“Primary enforcement of these standards

is to be accomplished under Section 402 of the Act. 33

U.S.C. § 1342. This section establishes a permit

system as the basic mechanism for enforcing the

effluent limitations established under Section 301.”).

No opinion except for the District Court decision

below mentions the possibility of using section 404 as

the permitting mechanism for point sources for which

the EPA has adopted effluent limitations or NSPS,

and for good reason. Section 402(a) authorizes the

EPA to issue NPDES permits “upon condition that

such discharge will meet either (A) all applicable

requirements under sections [301, 302, 306, 307, and

403] ... or (B) prior to the taking of necessary im-

plementing actions relating to all such requirements,

such conditions as the Administrator determines are

necessary to carry out the provisions of this [Act].” 33

U.S.C. § 1342(a) (2002). State NPDES permits must

ensure compliance with the same controls. Id.

§ 1342(b)(1). Moreover, the “permit shield” provision

in section 402(k) decrees that “[clompliance with a

permit issued pursuant to this section shall be

deemed compliance with” the same list of statutory

provisions under which the EPA establishes NSPS

and other pollutant control obligations. Jd. § 1342(k).

2. Section 404 Cannot Be Used to Ex-

empt This Facility from Mandatory

NSPS

Section 404 applies on its face to a much nar-

rower category of pollutant discharges that are not

subject to NSPS or other technology-based controls.

The presumption that the EPA implements the major

pollution control provisions of the statute is under-

scored in section 101(d) of the Act, which provides:

“Except as otherwise expressly provided ... the

Administrator of the Environmental Protection .

Agency ... shall administer this [Act].” 33 U.S.C.

§ 1251(d) (emphasis added). Thus, this Court should

be wary of allowing the Secretary of the Army to

exempt dischargers from pollution controls promul-

gated by the Administrator absent an express provi-

sion to that effect in section 404 or elsewhere in the

Act.

Section 404 authorizes the Secretary to issue

permits only for a specific subcategory of pollutants,

“dredged or fill material,” and only to “specified

disposal sites.” 33 U.S.C. § 1344(a). Although section

404 permits are subject to regulatory guidelines

adopted by the EPA, those rules are based on receiv-

ing water impacts and other factors rather than

uniform, technology-based treatment requirements.

See id. §§ 1344(b), 1343(c). Section 404 contains no

reference whatsoever to effluent limitations or NSPS

adopted by the EPA for industrial discharges under

section 301 or section 306, and thus is not designed to

implement those controls.’

" Petitioners argue that section 404 includes references to

section 307, but not to section 301 or section 306. Petr. Coeur

Alaska Br. at 27 n.4; see Petr. Alaska Br. at 29 n.6 Congress,

however, added references to section 307 to clarify that certain

exemptions to section 404 would not apply to any “discharges of

dredged or fill maternal containing toxic pollutants regulated

under section 307.” H.R. Rep. No. 95-830, at 105 (1977) (Conf.

Rep.), reprinted in 1977 U.S.C.C.A.N. 4424, 4480. Likewise,

Petitioners assert that the omission in section 404(p) of any

reference to section 306 authorized the Corps, by negative

(Continued on following page)

Likewise, the “permit shield” in section 404(p),

analogous to the NPDES permit shield in section

402(k), provides that compliance with a section 404

permit “shall be deemed compliance . . . with sections

{[301, 307, and 403],” but not with the section 306

NSPS to which Petitioners’ proposed discharges are

subject. Compare 33 U.S.C. § 1342(k) with id.

§ 1344(p). The straightforward interpretation of the

reference to section 301 is that compliance with

section 404 exempts a discharger from the presump-

tive ban imposed by section 301(a), in parallel with

the concomitant reference in section 301(a) to section

404. It is entirely illogical to assume that Congress

intended section 404 to implement effluent limita-

tions for existing sources pursuant to section 301(b),

but not NSPS for the same categories of industries

pursuant to section 306.

inference, to issue a permit that exempts that discharger from

treatment requirements that section 306(e) plainly imposes on

“any owner or operator” of a new source. 33 U.S.C. § 1316(e).

There is no rational explanation why a discharger permitted

under section 402 is subject to the statute’s mandatory NSPS

while a discharger permitted under section 4104 is not.

3. The EPA and Corps’ Definition of

Fill Cannot and Should Not Be

mead Read As Displacing the Clear Statu-

tory Commands of the Clean Water

Act

Petitioners claim that Coeur Alaska’s proposed

discharge falls within the EPA and Corps’ 2002 re-

vised definition of “fill,” found in 33 C.FR.

§ 323.2(e)(1\ii) (2008) and 40 C.F.R. § 232.2 (2008),

because it will raise the elevation of Lower Slate Lake

by 50 feet and is “mining-related slurry.” See Coeur

Alaska Br. at 17. As such, they assert the discharge

must be permitted under section 404, not section 402.

The fill definition, however, cannot undermine the

statutory commands of the Clean Water Act and

should not be read to do so.

“(NJo deference is due to agency interpretations

at odds with the plain language of the statute itself.”

Pub. Employees Ret. Sys. of Ohio v. Betts, 492 U.S.

158, 171 (1989), superseded by statute on other

grounds, Older Workers Benefit Protection Act, Pub.

L. No. 101-433, 104 Stat. 978 (1990): see 5 U.S.C.

§ 706(2)(A), (C) (allowing courts to set aside agency

action that are “not in accordance with law” or “in

excess of statutory jurisdiction, authority, or limita-

tions”). Where, as here, the plain language of a

statute provides a clear answer, “that is the end of

the matter.” Chevron v. Natural Res. Def. Council,

467 U.S. 837, 842 (1984). The statute, not the

agency's interpretation, governs. White v. United

States, 543 F.3d 1330, 1338 (Fed. Cir. 2008) (“The

agency’s interpretation must be rejected ... because

the interpretation it advocates would result in a

regulation that conflicts with the clear language of

the statute. ... Since the agency interpretation of its

regulation would change precisely what Congress has

already decided, it must be rejected.”).

The agencies’ unprecedented interpretation and

application of the fill regulation to Coeur Alaska’s

mining operations in this case contravenes the plain

language of the statute. As such, it does not warrant

deference of a::y kind and should be disregarded.

Moreover, when the definition of fill was revised

in 2002 — which Mr. Mehan oversaw in his role as the

EPA’s Assistant Administrator for Water — the agen-

cies never contemplated or intended the unlawful

result reached by the agencies here. Because the EPA

and the Corps failed to consider the context in which

the revision arose, and the purposes for which it was

promulgated, they misapplied the fill definition in

this case.

Before 2002, the Corps and the EPA defined fill

differently. The Corps defined fill as

any material used for the primary purpose of

replacing an aquatic area with dry land or of

changing the bottom elevation of a water-

body. The term does not include any pollut-

ant discharged into the water primarily to

dispose of waste, as that activity is regulated

under section 402 of the Clean Water Act.

33 C.F.R. § 323.2(e) (2000). The EPA, on the other

hand, defined fill as “any ‘pollutant’ which replaces

portions of the ‘waters of the United States’ with dry

land or which changes the bottom elevation of a water

body for any purpose.” 40 C.F.R. § 232.2 (2000).

According to the agencies, these inconsistent

definitions — one emphased purpose; the other did not

— “resulted in inconsistencies which impede the fair

and effective implementation of the CWA in a number

of ways.” Proposed Revisions to the Clean Water Act

Regulatory Definitions of “Fill Material” and “Dis-

charge Fill Material,” 65 Fed. Reg. 21,292, 21,294

(Apr. 20, 2000); see also Clean Water Act Definition of

Fill Hearing Before Subcomm. on Clean Air, Wet-

lands, and Climate Change of the S. Comm. on Envi-

ronment and Public Works, 107th Cong. (Testimony of

Benjamin H. Grumbles, Deputy Assistant Adminis-

trator, Office of Water, United States Environmental

Protection Agency and George S. Dunlop, Deputy

Assistant Secretary of the Army (Policy and Legisla-

tion)) (June 6, 2002), available at http://epw.senate.

gov/107th/Grumbles_060602.htm [hereinafter, Depu-—

ties’ Senate Testimony).

In particular, the agencies pointed to the Ninth

Circuit’s decision in Resource Investments Inc. v. U.S.

Army Corps of Engineers, 151 F.3d 1162 (9th Cir.

1998), which involved the proposed construction of a

solid waste landfill on wetlands that qualified as

waters of the United States. The Corps had denied

the application for a permit because the applicant

“had failed to demonstrate the unavailability of

practicable alternatives for waste disposal that were

less environmentally damaging ... and that the

proposed landfill was not in the public interest be-

cause it would cause significant degradation of wet-

lands and posed an unacceptable risk of groundwater

contamination.” Jd. at 1165.

When the denial was challenged, the question

was whether a 404 permit was required and, if so,

whether the denial was proper; no one argued that a

402 permit should be required. The Ninth Circuit

concluded that a section 404 permit was not required,

relying on the Corps definition of fill:

[T]he layers of gravel and low-permeability

soil, as well as the synthetic liner that would

underlie the solid waste in [the] proposed

landfill, do not constitute fill material be-

cause their primary purpose is not to replace

an aquatic area with dry land or to change

the bottom elevation of a waterbody, see 33

C.F.R. § 323.2(e), but rather to serve as a

leak detection and collection system.

Id. at 1168.

The agencies therefore proposed in 2000 to revise

the definition of fill to address the error of Resource

Investments Inc. and other cases that excluded cer-

tain activities from regulation under section 404. See

65 Fed. Reg. at 21,294-95. As Deputies from both the

Corps and the EPA explained to the Senate Subcom-

mittee on Clean Air, Wetlands, and Climate Change,

this change was essential to avoid results that would

undermine the statute:

[I]f this approach to interpreting the Corps’

“primary purpose test” were to be taken to

its extreme conclusion, the unreasonable end

result could be that almost any traditional

fill material proposed to be placed in waters

of the U.S. does not need a Section 404 per-

mit. Such an interpretation would be clearly

contrary to the intent of Congress expressed

in the plain words of CWA Sections 404 and

301, which require that any “fill material” to

be placed in any water of the U.S. must be

legally authorized by a permit under CWA

Section 404.

Deputies’ Senate Testimony.

The agencies also noted that the EPA’s then-

current definition of fill might create confusion be-

tween section 402 and section 404:

|Wje believe that this definition needs clari-

fication, because, read literally, it could sub-

ject to regulation under CWA section 404

certain pollutants that have been, are being,

and should be regulated by the technology

and water quality based standards used in

the section 402 program. For example, in-

dustrial waste or sewage may contain sus-

pended solids which ultimately will settle to

the bottom following discharge. Although

this would not replace waters with dry land,

this could have effects on the water body's

bottom elevation. Where such pollutants are

covered by proposed or final effluent limita-

tions guidelines and standards under section

301, 304, or 306 of the CWA or the discharge

is covered by a NPDES permit issued under

section 402 of the CWA, the proposed rule

would exclude the discharge from the defini-

tion of fill.

65 Fed. Reg. at 21,295 (emphasis added). The pro-

posed rule therefore included the following caveat:

The term fill material does not include dis-

charges covered by proposed or final effluent

limitations guidelines and standards under

sections 301, 304 or section 306 of the Clean

Water Act (see generally, 40 CFR part 401),

or discharges covered by an NPDES permit

issued under section 402 of the Clean Water

Act.

Id. at 21,299.

In the final rule, the agencies deleted this lan-

guage due to “confusion associated with the proposed

provision,” largely over whether it referred to effluent

standards currently in effect or to ones that would be

promulgated in the future. Final Revisions to the Clean

Water Act Regulatory Definitions of “Fill Material” and

“Discharge of Fill Material,” 67 Fed. Reg. 31,129,

31,135 (May 9, 2002). The agencies explained, how-

ever, that the deletion had no substantive effect:

[AJlthough we have removed the language in

question from the rule itself, we emphasize

that today’s rule generally is intended to

maintain our exisling approach to regulating

pollutants under either section 402 or 404 of

the CWA. Effluent limitation guidelines and

new source performance standards (“effluent

guidelines”) promulgated under section 304

and 306 of the CWA establish limitations and

standards for specified wastestreams from

industrial categories, and those limitations

and standards are incorporated into permits

issued under section 402 of the Act. ... Rec-

ognizing that some discharges (such as sus-

pended or settleable solids) can have the

associated effect, over time, of raising the

bottom elevation of a water due to settling of

waterborne pollutants, we do not consider

such pollutants to be “fill material,” and

nothing in today’s rule changes that view.

Nor does today’s rule change any determina-

tion we have made regarding discharges that

are subject to an effluent limitation guideline

and standards, which will continue to be

regulated under section 402 of the CWA.

Id. at 31,135 (emphasis added).

The Deputies later reiterated that uncertainty

expressed over the proposed provision led to its

removal but that the agencies did not intend to

change the allocation of permitting under sections

402 and 404:

[WJhile the language in question does not

appear in the final rule itseif, the preamble

does emphasize that the effects-based defini-

tion is consistent with EPA’s long-standing

approach to defining fill material, and gen-

erally is intended to maintain our existing

approach to regulating pollutants under

either Section 402 or 404 of the CWA. In par-

ticular, as noted in the preamble, the final

rule does not change any determination EPA

has made regarding discharges that are sub-

ject to effluent limitation guidelines and

standards, which will continue to be regu-

lated under Section 402 of the CWA.

Deputies’ Senate Testimony; see also Qs and As on the

“Fill” Rule at 2, http://www.usace.army.mil/cw/cecwo/

reg/fillqas. pdf.

Accordingly, Petitioners’ attempt to exploit this

deletion must fail because it disregards the repeated

statements of the agencies that the deletion was not

intended to change the regulatory approach under

sections 402 and 404.

Petitioners also emphasize that the agencies

changed the definition of “fill” to include “placement

of overburden, slurry, or tailings or similar mining-

related materials,” 67 Fed. Reg. at 31,135, which,

they assert, is what will be discharged by the pro-

posed mine. They again fail to place this change in

context and thus misunderstand its applicability.

In the original notice in 2000, the agencies cited

Bragg v. Robertson, 72 F. Supp. 2d 642 (S.D.W. Va.

1999), as a case that misunderstood the fill rule. The

court in that case questioned the parties’ agreement

that the placement of coal mining overburden into

waters of the United States must be permitted under

section 404. Pointing to the primary purpose language

of the Corps’ regulation, it suggested that the Corps

lacked regulatory authority over the proposed dis-

charge because the “primary purpose [was] waste

disposal.” Jd. at 658.

The 2000 notice sought to clarify the issue pre-

sented in Bragg:

With regard to proposed discharges of coal

mining overburden, we believe that the

placement of such material into waters of the

U.S. has the effect of fill and therefore,

should be regulated under CWA section

404.... In Appalachia in particular, such

discharges typically result in the placement

of rock and other material in the heads of

valleys, with a sedimentation pond located

downstream of this “valley fill.” This has re-

quired authorization under CWA section 404

for the discharges of fill material into waters

of the U.S., including the overburden and

coal refuse, as well as the berms, or dams,

associated with the sedimentation ponds.

The effect of these discharges is to replace

portions of a water body with dry land.

Therefore, today’s proposal makes clear that

such material is to be regulated under CWA

section 404.

65 Fed. Reg. at 21,295. The agencies emphasized,

however, that this change was a narrow clarification

and it was not intended to alter what was to be

permitted under section 402: “[|Tjoday’s proposal

recognizes that discharges from coal mining activities

that are covered by a proposed or final EPA effluent

guideline (See, eg., 40 CFR part 434) are not fill

material and would remain subject to regulation

under CWA section 402.” Jd. at 21,296.

When the agencies broadened the fill language in

the final rule to include more than just “coal mining

overburden,” they did so because “[t)he general intent

of this rule is to cover materials that have the effect

of fill, not simply to focus on any one industrial

activity.” 67 Fed. Reg. at 31,135. In other words, the

agencies revised the definition to include wastes from

all mining operations, not just coal mining opera-

tions, when those wastes have the same effect as coal

mining overburden in valley fills. Nothing in this

change altered the basic requirement that mining

activities covered by an effluent guideline required a

permit under section 402.

Indeed, consistent with this longstanding divi-

sion of work under the Clean Water Act, in Kentucki-

ans for the Commonwealth, Inc. v. Rivenburgh, the

Fourth Circuit upheld the Corps’ determination that

section 404 permits, not 402 permits, are required for

valley fills in connection with mountaintop coal

mining. 317 F.3d 425 (4th Cir. 2003). Notably, the

pollutants in question were not subject to effluent

limitations or NSPS promulgated by the EPA under

sections 301, 306, or 307. See id. at 445. In fact, the

Court pointed out that “Section 402 confers on the

EPA responsibility to regulate the discharge of pol-

lutants into waters under mechanisms to administer

effluent limitations,” id. at 448, and specifically

upheld the determination that the valley fill activity

was to be regulated under section 404 because the

Corps was not attempting to issue a permit for an

“effluent that could be regulated by ongoing effluent

limitations as described in § 402,” id.

Like valley fills, the division of permitting re-

sponsibility with respect to gold mining using froth-

flotation extraction has been clear for many years. In

1994, the EPA issued a guidance document on gold

mining that explained:

The national technology-based _ effluent

guideline limitations have been established

for discharges from most active gold mines

under the Ore Mining and Dressing Point-

Source. These regulations address point

source discharges from all types of gold ex-

traction techniques, including open-pit, un-

derground, froth-flotation, heap, in situ, and

tank cyanide leaching.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

TECHNICAL RESOURCE DOCUMENT EXTRACTION AND

BENEFICIATION OF ORES AND MINERALS: GOLD, Vol. 2

1-59 (Aug. 1994) (citation omitted), available at http://

www.epa.gov/osw/nonhaz/industrial/special/mining/tech

docs/gold/goldch1.pdf. It further explained that gold

mines with discharges into navigable waters must be

permitted under section 402, which in turn must

comply with these standards. See id. at 1-59 tol-61.

The 2002 definition of fill, issued when Mr.

Mehan oversaw the EPA’s CWA programs, was never

intended to and, as a matter of law, cannot upset the

requirements of the Clean Water Act. Because Coeur

Alaska’s proposed discharge is subject to the NSPS

found in 40 C.F.R. § 440.104(b)(1), it must be permit-

ted under section 402.

C. Petitioners’ Statutory Claims Misun-

derstand the Relationship Between

Sections 402 and 404

Petitioner Coeur Alaska argues that section 404

applies to its proposed discharges into Lower Slate

Lake because they claim that section is a more spe-

cific provision that overrides the general requirement

of section 402. Petr. Coeur Alaska at 27-29. This

misunderstands the Clean Water Act on multiple

fronts.

First, it is not clear that section 404 is the “more

specific” of these two provisions. It is true that “fill”

material is one of many pollutants subject to the

discharge ban in section 301(a), and in that sense

section 404 applies to a narrower scope of pollutants

than does section 402. Section 402 permits, however,

implement the more specific treatment obligations

promulgated by the EPA pursuant to sections 301(b),

306 and 307. As a result, they effectuate far more

specific control obligations than the generalized rules

for selecting disposal sites under section 404(b).

Second, Congress adopted section 404 as a very

limited exception to the broader permitting authority

of section 402. Section 404 was never intended to

supplant section 402 as the predominant means of

implementing categorical industrial effluent limita-

tions.

Third, it is inappropriate to appiy the canon of

statutory construction that specific provisions govern

general ones where doing so fails to give effect to key

operative statutory provisions, and to the statute as a

whole. In Industrial Union Dept., AFL-CIO v. Ameri-

can Petroleum Institute, this Court rejected an argu-

ment that the more specific provision regarding toxic

materials in section 6(b)(5) of the Occupational Safety

and Health Act of 1970 overrides the more general

definition of occupational safety and health standard

in section 3(8) of that statute, and construed the

statute in a way that gave effect to both provisions.

448 U.S. 607, 639-40 (1980). Here, section 306(e) of

the CWA can be given its full intended effect only if

the Kensington Mine is required to get a permit

under section 402 rather than 404.

Finally, allowing this result will provide ex-

tremely perverse incentives for dischargers, or at

least, would reward those dischargers within an

industrial category who have the highest volume and

highest impact discharges. Under the decision at

issue here, discharges with enough mass of sus-

pended solids to significantly change the bottom

contour of a water body can receive a section 404

permit to discharge those wastes with no treatment

whatsoever. In contrast, a discharger of the same

industrial wastes, within the same industrial cate-

gory defined by the EPA, but whose wastes are lower

in volume or lower in concentrations of suspended

solids, receive a section 402 permit and are subject to

a strict zero discharge requirement. In other words,

discharges that create the most environmental harm

receive the least stringent controls. Congress cannot

possibly have intended such a bizarre result.

II. DISCHARGE REQUIREMENTS ESTAB-

LISHED BY REGULATION CANNOT BE

MODIFIED IN PERMITS

A. This Court Rejected a Similar, But

Less Extreme, Argument in E. I. du

Pont de Nemours & Co. v. Train

Petitioners seek to re-litigate a contention that

their counterparts lost over three decades ago in E. I.

du Pont de Nemours & Co. v. Train, although in a

different procedural context. In du Pont, chemical

manufacturers argued that regulations adopted by

the EPA under sections 301, 304 and 306 merely

constituted “guidelines” for permit writers, and that

enforceable effluent limitations could only be estab-

lished through section 402 permits. E. I. du Pont de

Nemours & Co. v. Train, 430 U.S. 112, 124 (1977).

This Court ruled unanimously that Congress directed

the EPA to adopt uniform effluent limitations and

NSPS in regulations that apply to all sources within a

defined category, unless subject to an applicable

statutory or regulatory variance. /d. at 126-39.

If the Court were to allow the Corps to exempt

individual dischargers from mandatory NSPS

through the shell game of a section 404 permit rather

than a section 402 permit, that decision would over-

rule du Pont, at least with respect to new sources

whose discharges might qualify as “fill material.” In

fact, because Petitioners’ argument here is more

extreme than that rejected by this Court in du Pont,

it should be rejected a fortiori.

First, the section 404 permit issued by the Secre-

tary contains no treatment requirements whatsoever.

JA 360a-361la (tailings will be deposited in Lower

Slate Lake with no prior treatment). In du Pont, the

petitioners implicitly conceded that dischargers of

industrial wastes are subject to effluent limitations of

some kind. See 430 U.S. at 130-133. They argued,

however, that those requirements could be tailored to

individual sources through NPDES permits. /d. This

Court rejected that claim, because Congress man-

dated uniformity in technology-based controls and

because Congress and the EPA adopted narrowly-

tailored variance provisions by statute and regulation

as the exclusive relief valve from that uniformity. Jd.

at 129-32; see also Am. Iron and Steel Inst. v. EPA,

568 F.2d 284, 307-08 (3d Cir. 1977) (rejecting EPA

effort to exempt individual sources by regulation,

rather than through approved statutory variance

provisions). It is difficult to explain why Congress

would allow the Secretary to exempt industrial waste

dischargers through section 404 when Congress — and

this Court — rejected narrower relief through the

carefully-constructed system of regulations, vari-

ances, and permits established in sections 301, 306,

and 402. Moreover, under section 101l(d), such a

result requires express language not present in

section 404.

Second, petitioners in du Pont sought relief only

from the effluent limitations applicable to existing

sources. Petitioners here seek an exemption from the

stricter NSPS, despite Congress’ clear understanding

that new sources can design and implement pollution

controls free from the constraints of existing infra-

structure that may impede similer controls at exist-

ing sources. Chem. Mfrs. Ass’n v. EPA, 870 F.2d 177,

263 (5th Cir. 1989), clarified on reh’g, 885 F.2d 253

(1989). Again, it is difficult to believe that Congress

intended a more radical exemption from NSPS

through a section 404 permit than it — and this Court

- allowed for existing sources through a section 402

permit.

Third, Petitioner Coeur Alaska relies on the

“permit shield” provision in section 404, just as the

petitioners in du Pont relied on the analogous provi-

sion in section 402(k). See Petr. Coeur Alaska Br. at

28-29. In du Pont, however, this Court dismissed that

argument in a footnote:

Petitioners attach some significance to the

fact that compliance with a § 402 permit is

“deemed compliance ... with sectiojn| ...

306....” §402(k). This provision plainly

cannot allow deviations from § 306 standards

in issuing the permit. For, after standards of

performance are promulgated, the permit

can only be issued “upon condition that

such discharge will meet ... all applicable

requirements under sectio[n] ... 306....”

§ 402(a)(1); and one of the requirements of

§ 306 is that no new source may operate in

violation of any standard of performance.

§ 306(e). The purpose of § 402(k) seems to be

to insulate various permit holders from

changes in various regulations during the

period of a permit and to relieve them of hav-

ing to litigate in an enforcement action the

question of whether their permits are suffi-

ciently strict. In short, § 402(k) serves the

purpose of giving permits finality.

430 U.S. at 138 n.28. Once more, it is difficult to see

how the shield provision of section 404, which does

not even purport to address compliance with section

306, might exempt a discharger from the mandatory

NSPS standards when this Court declined to give

such effect to section 402(k).

B. Allowing the Secretary to Confer Un-

bridled Exemptions Through Section

404 Would Render Congress’ Carefully-

Defined Statutory Variances Superflu-

ous

Congress adopted specific, narrowly-prescribed

variances from the categorical technology-based

treatment standards promulgated by the EPA. Nota-

bly, none of those variances apply to new sources.

Where Congress includes precise exceptions that

apply under only constrained circumstances, courts

should not create — or allow agencies to create — a

much broader exception by implication. See United

States v. Johnson, 529 U.S. 53, 58 (2000) (“When

Congress provides exceptions in a statute, it does not

follow that courts have authority to create others.

The proper inference ... is that Congress considered

the issue of exceptions and, in the end, limited the

statute to the ones set forth.”).

In section 301(c), Congress allowed the Adminis-

trator to modify BAT limitations for individual

sources, but only “upon a showing ... that such

modified requirements (1) will represent the maxi-

mum use of technology within the economic capability

of the owner or operator; and (2) will result in rea-

sonable further progress toward the elimination of

the discharge of pollutants.” 33 U.S.C. § 1311(c). In

holding that the EPA properly declined to provide a

similar variance from BPT effluent limitations, this

Court explained that the narrowly limited purpose of

section 301(c) was to provide relief from the stricter

second round BAT limits where a discharger met at

least the first round of BPT limits, and where the

variance requires “the same sort of ... commitment

as the general BAT standard creates for the class.”

Nat'l Crushed Stone Ass’n, 449 U.S. at 73-74. Even

where this variance applies, it requires the best

available technology within the economic capability of

that source, and “reasonable further progress” toward

the statutory goal of eliminating discharges. /d. As

explained by the D.C. Circuit:

Although this formulation ensures a mean-

ingful variance, it should be noted that it is

not a license for avoidance of the Act’s strict

pollution control requirements. It simply al-

lows individual operators to argue, that,

given the overall impact of an effluent limi-

tation on their operations, they are faced

with stricter requirements than the Act au-

thorizes EPA to place on the industry as a

whole.

Weyerhaeuser Co., 590 F.2d at 1035 (emphasis in

original); see also Am. Frozen Food Inst. v. Train, 539

F.2d 107, 120 (D.C. Cir. 1976).

By contrast, Petitioners suggest that Congress

created — by sheer negative implication - a much

broader exemption from the stricter NSPS, without

any showing that the discharger cannot afford to

implement the standards or is unfairly burdened

when compared to others in its category. This is so,

claim Petitioners, even though Congress did not

include a variance for new sources in section 306. As

noted in du Pont: “In striking contrast to § 301(c),

there is no statutory provision for variances, and a

variance provision would be inappropriate in a stan-

dard that was intended to insure national uniformity

and ‘maximum feasible control of new sources.’ S.

Rep. No. 92-414, p.58 (1971), Leg. Hist. 1476.” 430

U.S. at 138.

Similarly, Congress enacted a limited variance

from the pollution control requirements imposed on

existing dischargers of nonconventional pollutants,

but only when dischargers adopt treatment at least

sufficient to meet BPT requirements and applicable

water quality-based effluent limitations. 33 U.S.C.

§ 1311(g). Again, this variance is not available to new

sources. See Riverkeeper, Inc. v. EPA, 358 F.3d 174,

192-93 (2d Cir. 2004). Yet Petitioners seek a far

broader exemption without any of the constraints in

section 301(g).

Finally, in du Pont this Court approved presump-

tively uniform national effluent guidelines in part

because the EPA adopted, by regulation, “fundamen-

tally different factors” (FDF) variances whereby

individual sources could demonstrate that their

pollution control capabilities were limited by differ-

ences directly relevant to the EPA’s rationale for

issuing the national limitations. In 1985, this Court

upheld the EPA’s use of FDF variances for discharges

of toxic pollutants from existing sources, while noting

that those variances were not available for new

sources. Chem. Mfrs. Ass’n v. Natural Res. Def. Coun-

cil, Inc., 470 U.S. 116, 122 n.8 (1985). Congress codi-

fied the EPA’s FDF variances, but only for limited

circumstances. See 33 U.S.C. § 1311(n) (2002).

The fact that Congress adopted narrowly-

constrained variances for existing sources, and that it

expressly foreclosed each of those variances for new

sources, shows that it could not possibly have in-

tended dischargers to obtain broader, wholesale

exemptions from NSPS simply by obtaining a permit

under section 404 rather than section 402.

lil, EXEMPTING THE PROPOSED DIS-

CHARGES FROM NSPS VIOLATES FUN-

DAMENTAL STATUTORY GOALS

A. Allowing This Discharger to Evade the

NSPS Would Contravene the Zero Dis-

charge Goal

As a principal means of attaining the statutory

objective, Congress directed the EPA to adopt increas-

ingly stringent technology-based limits on point

sources, and articulated a “national goal that the

discharge of pollutants into the navigable waters be

eliminated by 1985.” 33 U.S.C. § 1251(a)(1).

Congress backed up this statutory goal with

precise directions that the EPA, through its effluent

limitations and NSPS, prohibit discharges of pollut-

ants wherever possible. For the NSPS applicable

here, Congress mandated “application of the best

available demonstrated control technology, processes,

operating methods, or other alternatives, including,

where practicable, a standard permitting no dis-

charge of pollutants.” Id. §1316(a)(1) (emphasis

added).

Here, the EPA promulgated zero discharge limi-

tations for new gold mines using a froth-floatation

process, finding that it was technologically and eco-

nomically feasible to dispose of wastes from this

process in upland areas. Congress mandated that

such prohibitions be imposed on all facilities within

the category, and the statute contains “no provision

for exceptions from the standards for individual

plants; on the contrary, [it] makes it unlawful to

operate a new source in violation of the applicable

standard of performance after the effective date.” du

Pont, 430 U.S. at 121; see also Chem. Mfrs. Ass’n, 470

U.S. at 122 n.8 (noting that fundamentally different

factors variances are not available for new sources).

Accordingly, there is no justification for allowing

Coeur Alaska to evade the NSPS requirements.

B. The Exemption Granted Here Defeats

the Uniformity Mandated by Congress,

and Unfairly Favors Some Sources

Over Others

To ensure that similarly-situated dischargers are

treated fairly, and to prevent states from competing

for jobs at the expense of national pollution reduction

goals, Congress directed that effluent limitations and

NSPS be uniform within industry categories, subject

to the limited variance provisions discussed above.

See du Pont, 430 U.S. at 121, 126-30; Chem. Mfrs.

Ass’n, 470 U.S. at 119. ;

This Court has repeatedly highlighted Congress’

requirement that treatment standards within indus-

try categories be implemented as uniformly as possi-

ble. See du Pont, 430 U.S. at 129-30 (discussing

existing sources and quoting extensively from expla-

nations by Senator Muskie, principal Senate author

and sponsor of the 1972 amendments), 138 (new

sources); Nat'l Crushed Stone Ass'n, 449 U.S. at 77-78

(discussing uniform BPT limitations); Chem. Mfrs.

Ass'n, 470 U.S. at 119, 130 (requirement for EPA to

establish “uniform discharge limitations for

classes and categories” of dischargers; and noting

that “Congress did intend uniformity among sources

in the same category, demanding that ‘similar point

sources with similar characteristics ... meet similar

effluent limitations.’”). The D.C. Circuit explained

the reasons for this policy in Weyerhaeuser Co. v.

Costle: “Congress considered uniformity vital to free

the states from the temptation of relaxing local

limitations in order to woo or keep industrial facili-

ties. In addition, national uniformity made pollution

clean-up possible without engaging in the divisive

task of favoring some regions of the country over

others.” 590 F.2d at 1042.

Allowing treatment obligations to vary according

to the permitting provision used would flout this

statutory goal of uniformity in application of the Act’s

technology-based treatment requirements. There is

no evidence in the text of section 404 that Congress

intended that provision to be used in a way that is so

manifestly contrary to the goal of uniform treatment

obligations established in the rest of the statute.

C. Allowing Untreated Discharges to De-

stroy a Pristine Lake Makes a Mockery

of the Statutory Objective to Restore

and Maintain the Integrity of the Na-

tion’s Waters

The fundamental objective of the CWA is to

“restore and maintain the chemical, physical, and

biological integrity of the Nation’s waters.” 33 U.S.C.

§ 1251(a). See, e.g., PUD No. 1 v. Wash. Dep't of

Ecology, 511 U.S. 700, 704 (1994); Arkansas v. Okla-

homa, 503 U.S. at 101, 105-06; United States v.

Riverside Bayview Homes, Inc., 474 U.S. 121, 132

(1985). According to the 1972 Senate Report:

Maintenance of such integrity requires that

any changes in the environment resulting in

a physical, chemical or biological change in a

pristine water body be of a temporary na-

ture, such that by natural processes, within

a few hours, days or weeks, the aquatic eco-

system will return to a state functionally

identical to the original.

S. Rep. No. 92-414, at 76 (1972) (Conf. Rep.), re-

printed in 1972 U.S.C.C.A.N. 3668, 3742; see also

H.R. Re». No. 92-911, at 76-77 (1972) (Conf. Rep...

Here, the proposed discharges would kill every

fish in a pristine Alaskan Lake, and eliminate the

natural processes and functions of an ecosystem for

over a decade. It is difficult to fathom a result so

diametrically opposed to the fundamental objective of

the CWA. Respondents assert that they would restore

the lake and restock fish in some ten to fifteen years,

after mining operations cease. Even assuming that

such restoration is possible, the restoration proposed

here is inconsistent with Congressional intent that

any environmental changes from discharges should

be restored through natural processes, not dubious

artificial restoration, and that natural processes

should be restored within “a few hours, days, or

weeks,” not decades.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted,

ROBERT W. ADLER

Amy J. WILDERMUTH

UNIVERSITY OF UTAH

S. J. QUINNEY COLLEGE OF Law

332 South 1400 East, Room 101

Salt Lake City, UT 84112

(801) 581-6833

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.