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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2009

## Text

Nos. 07-984 and 07-999

In The
Supreme Court of the Anited States

¢

COEUR ALASKA, INC.,

Petitioner,
v.

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

e

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

i

TABLE OF CONTENTS

Page

INTRODUCTION AND INTEREST OF THE
i ta nicceicnataccedeniiennnniid 1
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.

C.

il

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

A.

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............

A.

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

30

30

33

37

37

38

il

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

iv

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

vl

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

1

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.

,
4

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.

2

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

3

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

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

5

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

6

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).

7

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.

8

§ 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)

9

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).

10

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

11

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.

12

|[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

13

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.”).

14

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

15

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)

16

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.

17

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

18

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.

19

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

20

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,

21

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

22

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

23

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

24

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

25

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

26

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

27

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

28

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

29

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

30

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

31

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

32

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

33

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

34

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

35

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.

36

§ 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.

37

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

38

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.

39

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

40

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

41

should be restored within “a few hours, days, or
weeks,” not decades.

&
vv

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0065%3A24. Public record. Not legal advice.