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

Nos. 07-984 & 07-990

me —_— ——

Supreme Court of the United States

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COEUR ALASKA, INC.,

Petitioner,

Vv.

SOUTHEAST ALASKA CONSERVATION COUNCIL, ET AL.,

Respondents.

STATE OF ALASKA, _

Petitioner,

V.

SOUTHEAST ALASKA CONSERVATION COUNCIL, ET AL.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF OF AMICI CURIAE MEMBERS OF

CONGRESS IN SUPPORT OF RESPONDENTS

David C. Vladeck

Counsel of Record

Kathryn A. Sabbeth

Georgetown University Law Center

600 New Jersey Ave., NW

Washington, DC 20001

(202) 662-9540

Counsel for Amici Curiae

TABLE OF CONTENTS

pe FE Mise ky |. re i

INTEREST OF AMICI CURIAE. ............... 1

de alia lpn ne Gg '5.5 cee s8 eb abs 3

SUMMARY OF ARGUMENT... ..........ecce000:. 8

ee es Pe ea eke eee OOO 10

I. The Clean Water Act Vests EPA With

Exclusive Authority To Issue Permits

Authorizing The Discharge of Industrial

ea as Gira aw oes eee eee 10

ie 6 06 boob 0 bS Od Oe Oe 11

B. The Act’s History and Purpose Support

pe UCC CCT CCT TTT eee 17

II. The Corps’ Permit Is At Odds With

Settled Adm «strative Interpretation

Of The Clean Water Act................. 22

A. The Corps’ Authority Under Section

404 Does Not Extend to Issuing Permits

For the Discharge of Mining Wastes as

EE Gn wd an aa Ge es ok 8 ss es 22

B. The Corps’ Permit is Contrary to

Settled Understanding of the Meaning

Of the Term “Fill Material”........... 27

a4 ke se bebe e's bra e es 60k eS 31

ll

TABLE OF AUTHORITIES

Cases: Pages

Agerton v. City of Lake Charles,

273 So.2d 353 (La. Ct. App. 1973)............ 29

Ass'n to Protect Hammersley, Eld, & Totten

Inlets v. Taylor Res., Inc., 299 F.3d 1007

se a ad ak be ons 0 68 0 11

Dolan v. United States,

Ne wake bee es ee aees 11

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

ne ueweeekvceen 15, 24

Garcia v. United States,

ER a ar 14

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.

Insur. Co., 463 U.S. 29 (1983)............ 26, 27

Natural Res. Def. Council, Inc. v. Costle,

568 F.2d 1369 (D.C. Cir. 1977) .............. 11

NLRB v. Amax Coal Co.,

I re 27, 29

Rapanos v. United States,

Ne ew cece ec eeceeens 13

Reiter v. Sonotone,

ek cece cceeeenees 14

Reserve Mining Co. v. EPA,

514 F. 2d 492 (8th Cir. 1975)........... 9, 18,19

Rheault v. Tennefos Constr. Co., Inc..,

Lae I. We Gee Gree. TOTD). . wwe ee ees 29

S.D. Warren v. Me. Bd. of Envtl. Prot.,

Te ev aecew ee 14

Traigle v. Lafayette Airport Comm'n,

309 So.2d 904 (La. Ct. App. 1975)............ 29

United States v. Gonzales,

eet eebcebees . 14

United States v. Homestake Mining Co.,

OOO ©. Sak Coe Cap. BUTE. . ww cece cscs: 20

lll

United States v. Iron Mountain Mines, Inc.,

812 F. Supp. 1528 (E.D. Cal. 1992)........... 20

United States v. James,

Re 14

United States v. Wells,

Ee 27

V.C. Edwards Contracting Co., Inc. v. Port of

Tacoma, 503 P.2d 1133 (Wash. Ct. App. 1972). 29

Winkelman v. Parma City Sch. Dist.,

og .. 11

Statutes:

AT ae en ee ee EF 18

nent E 18

Ee rr re ar 8,11

CO See 11, 18

ss ste ees eneuseeereseus 13

oe nsevetovesenenebn 21

es ns ce enue eee e sabes 11,18

es a ee one OOM kn eb eS 15

ean 8,9, 11,18

We, PD, gw ccc ceca ccc cees 19

Sere 13

ee ke econ ese ene eneees 12

SB UO.C. 61844. .................... 3,9, 10, 14

etc ececocunecnena 27

EE ee 22

ccc cnwavcevcuwes 3

33 U.S.C. § 1344(f)(1). ............--020 eee 16, 22

33 U.S.C. § 1344(f)(2). .............0eceee. 16, 17

Falmouth, Me., Code ch. 601 § 5.34 (2003). ...... 28

Regulatory Materials:

40 Fed. Reg. 31.320 (July 25. 1975).............. 6

iv

42 Fed. Reg. 37,122 (July 19, 1977)........ 6, 23, 24

47 Fed. Reg. 25,682 (June 14, 1982).............. 4

47 Fed. Reg. 54,598 (Dec. 3, 1982)............... 4

51 Fed. Reg. 8,871 (Mar. 14, 1986)........... 24, 26

53 Fed. Reg. 20,764 (June 6, 1988).............. 24

65 Fed. Reg. 21,292 (Apr. 20, 2000)............. 25

67 Fed. Reg. 31,129 (May 9, 2002)......... 6, 24, 25

a C.F.R. § 209.120(d)(6) (1976)................ 23

3 C.F.R. § 209.120(d)(7) (1976)................ 23

- he Be Ly, rari 23

eR RR rere 23

33 C.F.R. § 323.2(e)(3) (2002)... ... 2... cee 26

oe 4, 26

40 C.F.R. Parts 405, 406, 411, 425 & 429. ....... 30

Legislative Materials:

A Legislative History of the Water Pollution

Control Act Amendments of 1972, 93d Cong.,

lst Sess. (Jan. 1973). ......... 12, 15, 18, 20, 21

Miscellaneous:

Amcrican Society of Civil Engineers, Definitions of

Surveying and Associated Terms (1972)....... 28

Bruner & O’Connor Construction Law........... 29

EPA, Terms of Environment (2007)............. 28

Oxford English Dictionary (2nd ed. 1989)........ 28

INTERESTS OF AMICI CURIAE'

The question in this case is whether the issuance

of a permit by the U.S. Army Corps of Engineers

(“Army Corps” or “Corps”) authorizing petitioner Coeur

Alaska, Inc., to discharge millions of gallons of

wastewater containing tailings from its gold mine into

a pristine lake that is a navigable water of the United

States violates the Clean Water Act (“the Act”). The

Ninth Circuit answered that question in the

affirmative.

This brief in support of respondents is filed on

behalf of the following Members of Congress: Frank

Pallone, Jr., Pete Stark, Maurice Hinchey, Donald

Payne, Raul Grijalva, Jan Schakowsky, Rosa DeLauro,

Rush Holt, Mike Honda, Dennis Kucinich and Earl

Blumenauer. Amici are Members of a number of

Committees that have jurisdiction over environmental

matters, including the Natural Resources Committee,

the Energy and Commerce Committee, the Education

and Labor Committee, the Ways and Means

Committee, andthe Appropriations Committee. Amici

have a strong interest in ensuring the Act is properly

implemented. Each amicus rejresents a district

containing navigable waterways potentially affected by

' Pursuant to Rule 37.6 of the Rules of the Supreme

Court of the United States, no counsel for a party authored

this brief in whole or in part, and no counsel or party made

a monetary contribution to its preparation or submission.

No person other than amici curiae or their counsel made a

monetary contribution to the briefs preparation or

submission. This brief is filed with the written consent of

the parties, which is on file with the Clerk of the Court.

the outcome of this case.

At bottom, this case presents a question of

congressional intent — namely, whether Congress gave

the Army Corps the authority to issue a permit

allowing the discharge of industrial pollutants into

navigable waters that the Act otherwise forbids. Amici

are uniquely situated to address this question.

Although amici submit this brief 1n their individual

capacities, not on behalf of Congress, their views are

informed by their considerable experience as Members

of Congress.

In amici’s view, the Ninth Circuit correctly ruled

that the permit issued by the Army Corps violated the

Act. The Act mandates uniform compliance with

discharge standards for industrial wastes established

by the Environmental Protection Agency (“EPA”). The

Corps’ limited authority to issue permits for

construction and navigation projects in no way

supplants EPA’s exclusive authority over waste

disposal. Indeed, the position advocated by petitioners

disregards the Act’s clear text, invites an end-run

around EPA’s sole authority to authorize the discharge

of wastewater, and gives mining companies incentives

to dump their wastes into rivers and lakes and not on

land. Adopting petitioners’ approach would promote

large-scale dumping of industrial wastes into the

waters of the United States — exactly the dumping the

Act was designed to end.

3

BACKGROUND

1. The permit in question in this case was

issued by the Army Corps to grant Coeur Alaska, Inc.,

permission to discharge contaminated waste, known as

process wastewater, directly into waters of the United

States. Se. Alaska Conservation Council v. U.S. Army

Corps of Eng’rs, 486 F.3d 638, 640 (9th Cir. 2007)

(““SEACC’). Section 402 of the Act gives EPA exclusive

authority to issue permits for the discharge of

industrial pollutants. 33 U.S.C. § 1342. Section 404 of

the Act provides a limited exception to EPA’s otherwise

exclusive permitting authority by granting to the Army

Corps the power to issue “dredge and fill” permits for

the placement of “fill material” into waters of the

United States — that is, when it is necessary to use

“fill” to construct bridges, dams, piers, or other

infrastructure, or to alter water flow to facilitate

navigation. 33 U.S.C. §§ 1344, 1344(f). Nothing in

Section 404 authorizes the Army Corps to issue

permits for the discharge of industrial pollutants or, for

that matter, waste products of any kind.

To ensure that no discharge of industrial wastes

regulated by the Act deviates from EPA standards,

Sections 301 and 306 of the Act subject al/ discharges

to uniform discharge standards set and administered

by EPA. And EPA has, in fact, set a zero discharge

standard for precisely the kind of gold-mine waste

Coeur Alaska seeks to discharge. In 1982, EPA

conducted a survey of waste disposal methods in use at

gold mines across the nation and concluded that waste

disposal techniques resulting in zero discharge into

waters of the United States were routinely and cost-

4

effectively employed. 47 Fed. Reg. 54,598, 54,602 (Dec.

3, 1982); 47 Fed. Reg. 25,682, 25,692 (June 14, 1982).

For this reason, EPA established a “zero discharge”

standard for gold mines that use the froth-flotation

process to separate valuable ore from waste, as would

Coeur Alaska’s mine. See 40 C.F.R. § 440.104(b)(1).

There is no question that, had Coeur Alaska sought a

permit from EPA, the application would have been

denied under EPA’s twenty-six-year-old zero discharge

rule.’

2. Coeur Alaska instead sought a permit from

the Army Corps under Section 404 of the Act, which

authorizes the Corps to issue “dredge and fill” permits,

to allow its Kensington Mine to discharge heavily

polluted wastewater into Lower Slate Lake. See

SEACC, 486 F.3d at 640. Coeur Alaska plans to extract

gold from the Kensington Mine and then separate it

from waste rock using a process known as froth-

flotation. Jd. at 641. Coeur Alaska will remove rock

from the mine, grind it into fine gravel, and pump it

(along with various chemicals) into large water tanks

where the froth-flotation process occurs. Id. The

addition of chemicals causes bubbles to form around

the gold-bearing ore and float to the top of the tank,

where the ore is skimmed off. Jd. Some of the

remaining material — known as tailings — can be re-

deposited in the mine. But a significant amount (as

° This standard effectively requires Coeur Alaska to

dispose of waste products from its froth-flotation mill either

on land or in protected impoundments such as artificial

ponds lined with impermeable membranes. SEACC, 486

F.3d at 641.

5

much as 4.5 million tons in this instance) must be

discarded elsewhere. Id.

In 1997, Cocur Alaska sought and was granted

a permit to build a dry tailings facility on land near the

mine, which would not have involved the discharge of

wastewater. Jd. at 641-42. Rather than spend money

to build the facility, Coeur Alaska instead proposed in

2001 to dam nearby Lower Slate Lake and use the lake

as adump site for the tailings-laden wastewater, which

would be discharged into the lake in the form of a semi-

liquid “slurry.” This discharge would raise the bottom

of the lake by approximately fifty feet and cause the

lake’s surface area to triple in size. Jd. The

wastewater contains a number of toxic substances,

including aluminum, chromium, copper, lead and

mercury, which would cause substantial environmental

damage to this pristine lake and adjacent wetlands.

Id. at 642; see also Respondents’ Br. at 4. Coeur

Alaska applied for, and received, a permit from the

Corps under Section 404 of the Act. This is the first

time the Corps has issued a permit allowing a gold

mine operator to discharge process wastewater into

waters of the United States.

The Corps’ issuance of this permit was a

departure from the Corps’ longstanding interpretation

of its authority under Section 404. Until 2002, the

Corps took the position that its permitting authority

over “fill” was limited to fill used for construction or

navigation. In 1975, the Army Corps defined “fill

material” to mean material used to replace an aquatic

area with dry land or to raise the elevation of a water

body. 40 Fed. Reg. 31,320, 31,325 (July 25, 1975). In

6

1977, the Corps clarified that “fill material” is material

used for the “primary purpose” of construction or for

navigational safety. See 42 Fed. Reg. 37,122, 37,145

(July 19, 1977). In contrast, if material was placed in

a water body “primarily to dispose of waste,” the waste

was not fill material and thus EPA, not the Corps, had

jurisdiction under Section 402. Id.

In 2002, the Army Corps redefined “fill material”

to embrace anything at all that, when dumped in a

water body, raises the elevation, and abandoned the

“primary purpose” test for waste. 67 Fed. Reg. 31,129

(May 9, 2002). Because industrial wastes sink to the

bottom of a water body and raise its elevation, the

Corps’ expanded definition of “fill” threatened to

arrogate authority the Act assigns to EPA. To avoid

dispute over their respective jurisdiction, the Army

Corps, together with EPA, appended to the new

definition a statement clarifying that neither agency’s

authority would change as a result of the rule-making.

Id. at 31,130; see also id. at 31,135.

In 2005, however, the Army Corps did an about-

face and issued a “dredge and fill” permit to Coeur

Alaska. The permit authorizes the discharge of

210,000 gallons of wastewater daily into the Lower

Slate Lake; a discharge that cannot be reconciled with

EPA’s zero discharge standard. If the discharge is

allowed to proceed, it will result in millions of gallons

of wastewater contaminated with chemicals and

containing 4.5 million tons of suspended solids such as

pulverized lead and mercury being flooded into a

pristine lake surrounded by wetlands in the Tongass

National Forest. SEACC, 486 F.3d at 642. The lake

7

would be rendered a “dead lake,” unable to sustain life

and unsuitable for human use, and the pollution would

spread to nearby wetlands, causing’ untold

environmental] harm. Jd.

3. Three conservation organizations, Southeast

Alaska Conservation Council, Sierra Club, and Lynn

Canal Conservation, challenged the Corps’ decision in

United States District Court for the District of Alaska.

These groups contended that Coeur Alaska’s actions

were governed by the National Pollution Discharge

Elimination System (NPDES) permitting program set

up under Section 402 of the Act, and in particular by

the 1982 EPA regulation prohibiting the “discharge of

process wastewater to navigable waters from mills that

use the froth-flotation process.” Coeur Alaska and the

State of Alaska intervened on behalf of the Corps and

filed a motion for summary judgment, which the

district court granted. Jd. at 643.

The Ninth Circuit reversed. In finding the

Corps’ permit invalid, the court relied on the text of

Sections 301 and 306 of the Act, which make unlawful

any discharge that does not comply with applicable

effluent and performance standards. Id. at 646-48. In

so holding, the court reyected Coeur Alaska’s argument

that Congress had created an implied exemption for

permits sought under Section 404. Instead, the court

found that Congress intended the existence of a

discharge standard or limitation implemented through

Section 402 to preclude the issuance of a Section 404

permit. /d. at 647-48.

8

The court also noted that when the two

permitting agencies — EPA and the Corps —

promulgated a joint regulation regarding fill material

in 2002, both the regulation and their joint statements

emphasized the continuing applicability of previous

discharge standards and permitting practices. Id. at

651-53. Because EPA promulgated a standard for

process wastewater of the type the Kensington mine

will produce well prior to 2002, the court concluded

that the Corps’ issuance of a permit to Coeur Alaska

was at odds with the agencies’ position that the Corps

lacked authority to issue a permit under Section 404

where, as here, a discharge standard is in force. Id. at

653.

SUMMARY OF ARGUMENT

Amici join in respondents’ more comprehensive

treatment of the issues in this case. Amici file this

brief to highlight two points:

First, the Clean Water Act refutes petitioners’

claims. The Act prohibits the Army Corps from issuing

permits that authorize the discharge of process

wastewater into our nation’s navigable waters. Indeed,

the Act was passed for the very purpose of maintaining

and improving the quality of the nation’s waters by

reducing pollution. 33) U.S.C. § 1251(a). The Act does

so by directing EPA to control the disposal of waste

into waters of the United States. Jd. § 1342. At the

same time, the Act withdrew the expansive authority

previousiy exercised by the Army Corps under the

Refuse Act, confining the Army Corps to discrete power

to issue “dredge and = permits to enable construction

|

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9

of infrastructure projects like jetties and piers, so long

as they do not obstruct navigation. See id. § 1344.

Congress reposed authority only in EPA — not the

Army Corps — to license waste disposal in waters of

the United States. Id. § 1342.

This reading of the Act is confirmed by the Act’s

history. One event leading to the enactment of the Act

was the wholesale discharge of mining wastes into the

Great Lakes. The Act was passed to eliminate

dumping of industrial waste into our nation’s rivers

and lakes, and, in the interim, to ensure that no

dumping takes place without EPA’s approval. See

generally Reserve Mining Co. v. EPA, 514 F. 2d 492

(8th Cir. 1975). Amici’s reading of the Act is also

confirmed by EPA’s interpretation of the Act as

forbidding the “discharge of process wastewater to

navigable waters from mills that use the froth-flotation

process.”

Second, petitioners’ argument should be rejected

because it flies in the face of longstanding, consistent

administrative interpretation by both EPA and the

Army Corps, which holds that only EPA, and not the

Corps, may authorize discharges subject to an effluent

standard issued by EPA.

Petitioners’ argument is further flawed because

it seeks to expand the term “fill material” far beyond

its established meaning. Petitioners claim that mine

waste contains materials similar to fill, and therefore

the Army Corps properly issued Coeur Alaska a permit

under Section 404 of the Act. 33 U.S.C. § 1344. But

this argument collides with the unavoidable fact that

10

the word “fill” is a term of art: It refers to material

used to fill a space to facilitate construction. By no

stretch is “fill” a synonym for “waste” or “any collection

of solid materials,” as petitioners claim. Indeed,

petitioners’ argument has no limiting principle. If

their reading of the statute were correct, a company

could get a Corps permit to dump any pollutant into

navigable waters of the United States by calling it

“fill,” so long as it wou!d raise water levels, even if the

waste’s discharge was otherwise forbidden by EPA, and

even if the discharge was only for waste disposal.

The Army Corps’ unprincipled departure from

these settled administrative interpretations threatens

to destabilize a statutory and regulatory regime that,

by and large, has operated as Congress directed in the

Act. The Ninth Circuit was right to invoke principles

of regulatory consistency in vacating the permit the

Corps issued to Coeur Alaska.

ARGUMENT

I. The Clean Water Act Vests EPA With

Exclusive Authority To Issue Permits

Authorizing The Discharge Of Industrial

Wastes.

The question in this case is whether the Clean

Water Act authorizes the Army Corps to issue a

discharge permit to Coeur Alaska _ allowing

contaminated wastes to be dumped into waters of the

United States. Answering that question “depends

upon reading the whole statutory text, considering the

purpose and context of the statute, and consulting any

1]

precedents or authorities that inform the analysis.”

Dolan v. United States, 546 U.S. 481, 486 (2006). See

also Winkelman v. Parma City Sch. Dist., 127 S. Ct.

1994, 2000 (2007). The text, purpose, history, and

longstanding administrative interpretation of the Act

all point in the same direction: Only EPA may issue a

permit authorizing the discharge of waste into the

navigable waters of the United States.

A. The Act’s Text.

The Act’s core goal is to “restore and maintain

the chemical, physical, and biological integrity of the

Nation’s waters” by “elimin|ating]” the “discharge of

pollutants into the navigable waters.” 33 U.S.C. §

1251(a). To accomplish this goal, Sections 301 and 306

of the Act require EPA to establish pollution control

standards that must be imposed on all industrial and

municipal discharges pursuant to the NPDES

permitting program under Section 402. 33 U.S.C. §§

1311, 1316, 1342. See also, e.g., Ass'n to Protect

Hammersley, Eld, & Totten Inlets v. Taylor Res., Inc.,

299 F.3d 1007, 1009 (9th Cir. 2002) (stating that the

imposition of standards via the Section 402 permit

program is the “cornerstone” of the Act); Natural Res.

Def. Council, Inc. v. Costle, 568 F.2d 1369, 1374 (D.C.

Cir. 1977) (stating that Section 402 permitting is

“central to the enforcement” of the Act).°

* The Clean Water Act received broad backing as a

much-needed pollution control measure. The 92nd Congress

conducted a major review of existing water pollution laws

(continued...)

12

Section 402 of the Act grants EPA exclusive

authority to issue permits for the discharge of waste —

including industrial waste — into the waters of the

United States. According to Section 402, “[p]ermits for

discharges associated with industrial activity shall

meet all applicable provisions of this section.” 33

U.S.C. § 1342(p)(3) (emphasis added). There is no

question that mining is an “industrial activity,” and

not an infrastructure project like the construction of a

bridge, dam or pier. Therefore, any discharge of

mining waste into the waters of the United States

must be authorized by a permit issued in accordance

with Section 402, or the discharge is unlawful.’

°(...continued)

and enacted the Federal Water Pollution Control Act

Amendments of 1972, now known as the Clean Water Act.

The Act passed the Senate unanimously and the House by

an overwhelming majority. Senate Report and Debates,

reprinted in A Legislative History of the Water Pollution

Control Act Amendments of 1972 (hereinafter “ALH”) at

222; House Report and Debates, ALH at 277. President

Nixon vetoed the bill because of fiscal concerns. See Federal

Water Pollution Act—-Veto Message, Oct. 17, 1972, ALH at

137. Congress overrode that veto with landslide votes. See

House Debate on Overriding the President’s Veto of S. 2770,

ALH at 95-96, 109-13; Senate Debate on Overriding the

President’s Veto of S. 2770. ALH at 135-36.

* In contrast, Section 402(/(2), states that NPDES

permits are not required for mine runoff that has not been

contaminated with mine waste:

The Administrator shall not require a permit under

(continued...)

13

Section 301 drives home that the Act’s pollution

control standards are not discretionary and that any

permit under Title IV, which embraces Sections 402

and 404, must comply with those standards. Section

301 provides that, “[e]xcept as in compliance with this

section and sections 1312, 1316, 1317, 1328, 1342, and

1344 of this title, the discharge of any pollutant by any

person shall be unlawful.” 33 U.S.C. § 1311(a)

(emphasis added). See also Rapanos v. United States,

547 U.S. 715, 723 (2006) (stating that Section 301’s

prohibition is one of the “principal provisions” of the

Act).

Congress's crafting of Section 301 merits close

attention. First, Congress used the connector “and” in

setting out the general rule that “[e]xcept as in

compliance with this section and sections .. . of this

title,” including Sections 306, 402 and 404, the

discharge of pollution “shall be unlawful.” Congress’s

‘(...continued)

this section, nor shall the Administrator directly or

indirectly require any State to require a permit, for

discharges of stormwater runoff from mining

operations ... which are not contaminated by contact

with, or do not come into contact with, any

overburden, raw material, intermediate products,

finished product, byproduct, or waste products

located on the site of such operations.

§ 402(/)(2). This provision makes sense because permits are

required under Section 402 for any mine runoff which has

been contaminated by mine waste. Subsection (/) would

make no sense under petitioners’ reading of the Act.

14

use of “and” instead of “or” was deliberate. See, e.g.,

Garcia v. United States, 469 U.S. 70, 74 (1984); Reiter

v. Sonotone, 442 U.S. 330, 338-39 (1979). As the text

makes clear, Congress did so to ensure that every

permit issued under the Act complies with the

pollution control requirements of Section 301 as well as

the separate and additional requirements of the section

authorizing the issuance of the permit. SEACC, 486

F.3d at 655. See also S.D. Warren v. Me. Bd. of Envtl.

Prot., 547 U.S. 370, 376-78 (2006) (giving text of Clean

Water Act everyday meaning).

Second, and of equal significance, Congress’s

repeated use of the word any underscores Section 301’s

breadth. See, e.g., United States v. Gonzales, 520 U.S.

1, 5 (1997); United States v. James, 478 U.S. 597, 604

(1986). The Section was plainly written to ensure that

“the discharge of any pollutant by any person” is

unlawful, unless the person has obtained a permit that

complies with Section 301. There is no exception to

this requirement; the provisions language is

categorical.”

* This understanding of the Act was widely shared at

the time it was being drafted. [n comments on the draft

legislation, EPA’s Administrator observed that “[e]ffluent

limitations required by Section 301 would be established

and applied to all point sources of discharges covered by the

Act by means of the permits issued under Title IV.” H.R.

Rep. No. 92-911, reprinted in ALH, at 844. See also E_I. du

Pont de Nemours & Co. v. Train, 430 U.S. 112, 138 (1977)

(“It is clear that Congress intended these [Section 301]

regulations to be absolute prohibitions.”).

15

Another section reinforces amici’s reading of the

Act. Section 306(e) provides that 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.” 33 U.S.C. § 1316(e). Again,

Congress’s repeated use of the word “any” drives home

the categorical nature of this prohibition — the

provision makes it unlawful for any operator of any

new source to violate any applicable performance

standard, period. There is no way to square the Corps’

issuance of discharge permit to Coeur Alaska with the

unambiguous dictate of Section 306(e). There is no

dispute that the Kensington mine is a “new source”

subject to EPA’s zero discharge standard. Nor does the

language suggest an exception. Thus, in the language

of Section 306(e), a discharge of waterborne mining

wastes into waters of the United States would be “in

violation” of a “standard of performance applicable to

such source.”

This reading of the Act is also consistent with,

and preserves, the narrow authority the Act confers on

the Army Corps to issue permits. Under Section 404,

the Army Corps’ permitting authority is limited to

“dredge and fill” construction and navigation projects;

it does not extend to the disposal of industrial wastes.

33 U.S.C. § 1344.

Section 404 of the Act makes this clear in two

ways. To begin with, Subsection 404(f(1) describes

operations with “dredge and fill” components exempted

from regulation. 33 U.S.C. § 1344(f(1). These

operations include: farming: water conservation;

maintenance and _ reconstruction of pre-existing

16

structures “such as dikes, dams, levees, groins, riprap,

breakwaters, causeways, and bridge abutments or

approaches, and transportation’ structures”;

“construction of temporary sedimentation basins on a

construction site which does not include placement of

fill material into the navigable waters”; and

“construction or maintenance of farm roads or forest

roads, or temporary roads for moving mining

equipment,” so long as navigable waters are “not

impaired” and “any adverse effect on the aquatic

environment” is minimized. 33 U.S.C. § 1344(f)(1)(A)-

(F). The words “construction” and “navigation” run

through these descriptions of exempted dredging and

filling activities for a reason — dredging and filling are

activities integral or related to construction and

infrastructure projects. See id.

Next, Subsection 404(f)(2) defines those “dredge

and fill activities” that are noc exempted and therefore

may not be undertaken without a permit. Under

Subsection (f)(2), a permit is required for the “[1]

discharge of dredged or fill material into the navigable

waters incidental to any activity having as its purpose

bringing an area of the navigable waters into a use to

which it was not previously subject, [2] where the flow

or circulation of navigable waters may be impaired or

the reach of such waters be reduced.” 33 U.S.C.

§ 1344(f)(2) (emphasis added). The first clause defines

the discrete scope of the Army Corps’ jurisdiction,

encompassing only discharges that are incidental to

construction activities requiring deposits into waters —

such as the building of bridges or dams — that might

have an impact on navigation. /d. ‘The second clause

sets forth the purpose for which a permit may be issued

17

by the Corps, which is to ensure the safety and non-

obstruction of navigable waters. Id. Read together,

the two subsections of Section 404(f) make evident that

the Corps’ permitting authority is limited to activities

undertaken for purposes relating to “dredge and fill”

operations; that is, operations necessary for

infrastructure development and navigation in waters

of the United States.

The text of the Act resolves this case. The

“dredge and fill” permit the Army Corps issued to

Coeur Alaska is invalid not just because its issuance

exceeded the Corps’ authority under Section 404, but

also because the permit violates Section 301’s “absolute

prohibition” on the discharge of waste without a permit

properly issued by EPA under Section 402 of the Act,

as well as Section 306(e)’s prohibition against

discharges by “new sources” in violation of EPA

established performance standards.

B. The Act’s History and Purpose Support

Amici’s Reading.

This conclusion is bolstered by a review of the

drafting history of the Act. One of Congress’s chief

concerns was to eliminate the exact kind of discharge

Coeur Alaska seeks permission for — that is, the

dumping of process wastewater or waterborne solid

waste into waters of the United States. At the time the

Act was making its way through Congress, several

Members of Congress were trying to force the Reserve

Mining Company to stop dumping 67,000 tons of

taconite tailings daily into Lake Superior. See, e.g.,

Senate Consideration of the Report of the Conference

18

Committee, Oct. 4, 1972, reprinied in ALH at 190-94

(remarks of Sen. Griffin of Michigan); see also Reserve

Mining Co. v. EPA, 514 F.2d 492, 530-31 (8th Cir.

1975). Reserve Mining operated a taconite mine in

Minnesota’s Mesabi Iron Range, but placed its mill (the

beneficiation plant) on the shore of Lake Superior. Jd.

at 500. Reserve Mining had been dumping process

wastewater into the lake for decades, causing extensive

water contamination and threatening the safety of

residents who drank the lake water and used the lake

for fishing and recreation. Jd. at 580-31. The Act was

designed in part to put an end tothat dumping. See 33

U.S.C. § 1311, 1316, 1342.

Prior to the passage of the Clean Water Act, the

Army Corps was responsible for regulating deposits

into waters of the United States, including waste

disposal, under the Rivers and Harbors Appropriation

Act of 1899. The Corps had issued permits for

construction, deposits of fill and other potential

obstructions to navigation under Section 10 of that Act

(33 U.S.C. § 403), and had recently instituted a permit

program for industrial waste discharges under Section

13 (33 U.S.C. § 407), more commonly known as the

Refuse Act. The Clean Water Act transferred to EPA

responsibility for permitting and standard-setting for

waste discharges, leaving the Corps to administer only

the construction and navigation-related dredge and fill

permitting process.

The impact of this near-total reallocation of

authority was evident in the Reserve Mining case. Just

three years after the Act’s passage, the U.S. Court of

Appeals for the Eighth Circuit concluded that the

19

Reserve Mining Company’s dumping of process

wastewater into Lake Superior, conducted pursuant to

a permit issued under 33 U.S.C. § 403 (Section 10 of

the Rivers and Harbors Act) authorizing the company

to “deposit tailings from the ore processing mill” into

the lake, was now subject to the NPDES permit

program authorized under Section 402 of the Clean

Water Act. See Reserve Mining, 514 F.2d at 531. In

the court’s view, Reserve Mining’s most recent

application for a Refuse Act permit to discharge process

wastewater into Lake Superior, submitted to the Army

Corps in 1971 but not acted on, automatically had been

converted into an NPDES permit application under

Section 402 upon the Clean Water Act’s enactment.

See id. The Eighth Circuit concluded that, while the

original permit Reserve Mining had received from the

Army Corps in 1960 remained valid with regard to the

navigational impacts of Reserve Mining’s dumping —

the only impacts assessed by the Army Corps — that

permit was not sufficient to authorize Reserve Mining’s

ongoing discharge of industrial wastes. Jd. at 532. At

no point did the court even consider that the discharge

of process wastewater might be permitted under the

Corps’ Section 404 dredge and fill authority,

undoubtedly because mine waste clearly did not

constitute “fill.” J/d.°

° The court’s treatment of Reserve Mining’s permit is

consistent with the mandate of 33 U.S.C. § 1342(a)(5). It

also accords with Congress's statement that “Section 402

transfers the 1899 Refuse Act permit program from the

Corps of Engineers to the Administrator jof EPA].” ALH at

321. See also ALH at 274 (“Section 402 transfers the

(continued...)

20

Until the Corps’ issuance of the Coeur Alaska

permit, the Act was always understood to vest EPA

with sole authority to issue permits for wastewater

discharges. This understanding is evident not just in

the Reserve Mining case, but in others as well. For

example, just four years after the Act took effect, the

Homestake Mining Company was required to obtain a

Section 402 permit subject to pollution control

standards under Sections 301 and 306 before it could

discharge “waste water containing tailings, heavy

metals, and suspended solids” from its South Dakota

gold mine into navigable waters. United States v.

Homestake Mining Co., 595 F.2d 421, 422-23 (8th Cir.

1979). Also in the 1970s, Iron Mountain Mines, Inc.,

was required to obtain a Section 402 permit for

discharges from a California mine that produced gold

and other ores. United States v. Iron Mountain Mines,

Inc., 812 F. Supp. 1528, 1540 (E.D. Cal. 1992)

(addressing liability issues).

*(...continued)

[discharge permit program] from the Army Corps to the

EPA, and provides a mechanism for the States to assume

full jurisdiction.”). Indeed, after the Act’s passage in 1972,

the Army Corps ceded jurisdiction tu EPA over all pending

applications under the Refuse Act. See, e.g., Highlights of

the Bill, Conference Report from House Debate, ALH at 362

(“Pending applications under the Refuse Act program would

be transferred from the Corps of Engineers who are

administering the 1899 Refuse Act to the Environmental

Protection Agency who would initially be responsible for the

administration of the new program.”).

21

As a final point, petitioners’ argument, if

accepted, would not only end run the Act’s pollution

control requirements, but would also defeat the Act’s

goal of uniform treatment for companies engaged in

waste discharge. The National Association of Home

Builders (“NAHB”) suggests the standards imposed by

Sections 301 and 306 are superfluous because the

Army Corps conducts an extensive analytical process

before issuing a Section 404 permit to ensure that no

serious environmental harm will result. But the case-

by-case evaluations that NAHB touts and that the

Corps conducts cannot supplant EPA-issued standards.

Congress drafted the Clean Water Act to require EPA

to set industry-wide, science-based effluent standards

which take into account the burden a standard would

place on an industry. According to the 1972

Conference Report, “The conferees intend that the

[EPA] Administrator . .. will make the determination

of the economic impact of an effluent limitation on the

basis of classes and categories of point sources, as

distinguished from a plant by plant determination.”

ALH at 304. Although a permit applicant may seek an

exception from an industry-wide standard, the burden

is a high one. See, e.g., 33 U.S.C. § 1311(c). The case-

by-case environmental review NAHB favors thus is

exactly the system that Congress rejected in the Clean

Water Act.’

* The NAHB’s argument also confuses the distinctly

different roles served by EPA’s standard-setting and the

Corps’ environmental review. EPA's job is to set uniform,

science-based discharge limits for industrial and municipal

discharges. The Corps’ review, in contrast, focuses on the

(continued...)

22

As is evident, the Act’s text, purpose, and history

demonstrate that only EPA, and not the Corps, may

issue permits for the discharge of waste into waters of

the United States. Accordingly, the judgment below

should be affirmed.

II. The Corps’ Permit Is At Odds With

Settled Administrative Interpretation

Of The Clean Water Act.

Not only did the Corps’ issuance of a permit to

Coeur Alaska violate the Clean Water Act, it also

cannot be squared with longstanding administrative

interpretations of the Act on two key points — first, the

strict limits on the Corps’ “dredge and fill” permitting

authority under Section 404 and second, the meaning

of the term “fill material.” The Corps’ unexplained

and unprincipled departure from these long settled

agency views is yet another reason to affirm the Ninth

Circuit’s ruling.

A. The Corps’ Authority Under Section 404 Does

Not Extend to Issuing Permits for the

Discharge of Mining Wastes as “Fill

Material.”

As noted, the Act was passed 1n 1972. By 1976,

the Army Corps had formally adopted definitions for

*(...continued)

environmental consequences of dredge and fill operations,

which can damage aquatic life and wetlands. See 33 U.S.C.

§§ 1344(c), ((1)(E).

23

“fill material” and the “discharge of fill material,”

which acknowledged that the Corps’ authority was

limited to permits for fill needed for construction and

navigation projects. The Corps defined “fill material”

as material “used to create fill in the traditional sense

of replacing an aquatic area with dry land or of

changing the bottom elevation of a water body for any

purpose,” and “[djischarge of fill material” as “the

addition of fill material into navigable waters for the

purpose of creating fastlands, elevations of land

beneath navigable waters, or for impoundments of

water.” 33 C.F.R. §§ 209.120(d)(6), (7) (1976). In 1977,

the Army Corps clarified that waste materials were

excluded from its definition of fill materials. 42 Fed.

Reg. at 37,145 (excluding “any pollutant discharged

into the water primarily to dispose of waste”). At no

point did the Corps suggest that it could issue permits

authorizing the discharge of wastewater.

In the ensuing decades, the Army Corps

repeatedly reaffirmed its view that “fill material” “does

not include any pollutant 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(m) (1977); 33 C.F.R. § 323.2(e)

(2001). According to the Army Corps’ “primary purpose

test,” if material was placed in a water body for the

“primary purpose” of waste disposal, EPA had

permitting jurisdiction under Section 402. See 42 Fed.

Reg. at 37,148. Following that approach, a

Memorandum of Agreement (“MOA”) between the

Army Corps and EPA in 1986 listed mining wastes

among those discharges that required permits from

EPA under Section 402. 51 Fed. Reg. 8,871, 8,872

24

(Mar. 14, 1986). The MOA also specified that a

discharge “in liquid, semi-liquid, or suspended form”

would be permitted by EPA pursuant to Section 402, as

well as “a discharge of solid material of a homogeneous

nature normally associated with single industry

wastes.” Jd. Discharges requiring permits from the

Corps under Section 404 included discharges having as

their “primary purpose” or “one principle purpose of

multi-purposes to replace a portion of the waters of the

United States with dry land or to raise the bottom

elevation,” or discharges resulting “from activities such

as road construction or other activities where the

material to be discharged is generally identified with

construction-type activities.” Seeid. at 8,872; see also

53 Fed. Reg. 20,764 (June 6, 1988).

To be sure, in 2002 the Army Corps changed

course when it adopted a new regulatory definition of

“fill material” that included any material the discharge

of which has the effect of elevating a water body,

regardless of whether the discharge is for construction

or navigation. 67 Fed. Reg. at 31,130. The breadth of

this new definition, coupled with the Corps’

abandonment of its “primary purpose” test, raised

questions about whether the Corps was encroaching on

the EPA’s permitting authority under Section 402.

To avoid jurisdictional conflict, EPA and the

Army Corps issued a joint statement that “this final

rule will not modify existing regulatory practice.” 67

Fed. Reg. at 31,130. The agencies also agreed that not

every discharge with the effect of clevating water levels

could be considered fill material. In the proposed rule,

the agencies stated that no discharge subject to an

25

EPA standard under Section 306 would be considered

“fill material.” 65 Fed. Reg. 21,292, 21,299 (Apr. 20,

2000). In the final rule, the agencies explained that

they had deleted the clause excluding discharges

already subject to EPA standards because of concerns

raised in public comments that the language was

“vague” and “would result in uncertainty.” 67 Fed.

Reg. at 31,135 (“In light of the concerns and confusion

associated with the proposed provision, we have

decided to delete it from the rule.”). Instead, the

agencies specified that the re-definition would not

change permitting jurisdiction with regard to

discharges containing solids (such as mining waste):

Recognizing that some discharges (such

as suspended 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 determination 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. The final rule also contains exceptions for trash

and sewage, which also would have fit squarely within

the new definition of fill material had they not been

exempted. See 33 C.F.R. § 323.2(e)(3). In short, the

2002 rule-making maintained the status quo and

reaffirmed both agencies’ longstanding recognition that

26

discharges subject to EPA-established effluent

limitations are required to be regulated by EPA under

Section 402.

The permit issued by the Corps to Coeur Alaska

violates these understandings. As stated above, for

over two decades EPA has imposed an industry-wide

zero discharge standard on froth-flotation mills such as

the one planned by Coeur Alaska, pursuant to the

NPDES permit program. See 40 C.F.R. § 440.104(b)(1)

(“there shall be no discharge of process wastewater to

navigable waters from mills that use the froth-flotation

process ... for the beneficiation of copper, lead, zinc,

gold, silver, or molybdenum ores”). In addition, the

1986 MOA committed the Corps to defer to EPA to

permit mine waste as well as other waterborne

suspended solids, see 51 Fed. Reg. at 8872, a

commitment the Corps explicitly reaffirmed during its

2002 rule-making.

Therefore, according to the Corps’ promise to

maintain the regulatory status quo, it should have let

EPA decide whether to issue a permit for Coeur

Alaska’s planned discharge of process wastewater

under Section 402. It did not. Instead, in 2005, the

Army Corps disregarded both the MOA and the

statements it made along with EPA and issued a

Section 404 permit to Coeur Alaska. Making matters

worse, the Corps did not acknowledge, let alone

explain, why it changed course. The Army Corps’

failure to do so violates the longstanding rule that an

administrative agency must acknowledge and provide

a reasoned justification when it diverges from past

practice or pohcy. See, e.g., Motor Vehicle Mfrs. Ass'n

27

v. State Farm Mut. Auto. Insur. Co., 463 U.S. 29, 42-43

(1983). The Ninth Circuit was right to invalidate the

Corps’ permit on this ground as well.

B. The Corps’ Permit Is Contrary to Settled

Understanding of the Meaning of the Term

Fill Material.

The Corps has violated principles of reasoned

agency decision-making in yet another way: It has

robbed the term “fill material” of any meaning. As

explained above, the Corps’ permitting authority under

the Clean Water Act is limited to permits for “the

discharge of dredged or fill material into the navigable

waters at specified disposal sites.” 33 U.S.C. § 1344(a).

In an effort to arrogate authority denied to it by

Congress, the Corps has redefined “fill material” to

cover virtually any substance that can be dumped into

water so long as it raises the water level. But the term

“fill material” is a term of art that does not encompass

“waste,” especially where, as here, the discharge is

unrelated to any construction or navigation project.

The terms “fill” and “fill material” are terms

with well-established meanings that the Corps is not

free to dismiss. See, e.g., NLRB v. Amax Coal Co., 453

U.S. 322, 329 (1981) (“Where Congress uses terms that

have accumulated settled meanings... a court must

infer, unless the statute otherwise dictates, that

Congress means to incorporate the established

meaning of these terms.”); accord United States uv.

Wells, 519 U.S. 482, 491 (1997). “Fill material” is a

term of art in the engineering field, referring to an

aggregated material that, when deposited in a space or

28

gap, enhances stability. According to the Oxford

English Dictionary, in the 1800s a “fill” was “an

embankment to fill up a gully or hollow,” used, for

example, in conjunction with “cuts” (i.e., grooves or

ditches) for laying railroad tracks. 5 Oxford English

Dictionary 908 (2nd ed. 1989) (def. I(2)(b)). In 1972,

the year the Act was enacted, the American Society of

Civil Engineers defined “fill” by its verb and noun

forms as: “Use of material, or material used to equalize

or to raise topography to a certain grade.” American

Society of Civil Engineers, Definitions of Surveying

and Associated Terms 69 (1972). EPA’s website

currently defines “filling” as the act of “[djepositing

dirt, mud or other materials into aquatic areas to

create more dry land, usually for agricultural or

commercial development purposes, often with ruinous

ecological consequences.” EPA, Terms of Environment,

http://www.epa.gov/OCEPAterms/fterms.html] (May 14,

2007).

Building codes and construction ordinances offer

even more precise definitions of fill material and

“filling,” none of which extends to waste. For instance,

Falmouth Maine’s building code states that “(fill

material shall mean clean soil material, rocks, bricks,

and cured concrete, which are not mixed with other

solid or liquid waste, and which are not derived from

an ore mining activity.” Falmouth, Mc., Code ch. 601

§ 5.34 (1991, 2003).

In the 1970s, “fill material” was used for many

purposes, such as to embank roads, extend airport

runways, or reclaim portions of a water body as dry

land. See, e.g.. V.C. Edwards Contracting Co., Inc. v.

29

Port of Tacoma, 503 P.2d 1133, 1136-37 (Wash. Ct.

App. 1972) (involving placement of “fill material” for

road embankment); Traigle v. Lafayette Airport

Comm'n, 309 So.2d 904, 905 (La. Ct. App. 1975)

(involving use of “fill material” to construct runway);

Agerton v. City of Lake Charles, 273 So.2d 353, 354 (La.

Ct. App. 1973) (involving placement of “fill materia!” to

reclaim dry land). Fill material was valued as a

saleable commodity, not mere waste. See, e.g., Rheault

v. Tennefos Constr. Co., Inc., 189 N.W.2d 626, 627-28

(N.D. 1971) (regarding unfulfilled contract to furnish

“fill material” at cost of $11,706 for use in road-

building).®

The Corps itself consistently embraced these

settled definitions of the terms “fill” and “fill material,”

in formal regulations, the MOA, and other statements

of agency policy. See infra at pp. 22-25. Despite the

“accumulated settled meanings” of the terms fill and

fill material, see Amax Coal, 453 U.S. at 329,

petitioners now contend that fill can mean any

material that can be dumped into water that might

raise the water level.

Petitioners’ argument has no limiting principle.

If petitioners’ reading of the statute is correct, a

* To be sure, fill material can contain recycled content.

Fill material ofter contains recycled and inexpensive

materials such as rock, gravel, sand, compacted soil, glass

chips, or concrete, depending on its engineering function,

but must be of a compaction density, moisture content, and

shear strength suited to its use. See, e.g., 4 Bruner &

O’Connor Construction Law § 14:10.

30

company could dump any pollutant into navigable

waters of the United States and call it “fill,” even if the

material’s discharge was otherwise forbidden by EPA

and even if the discharge was only for waste disposal

and not for construction or navigation. Any number of

harmful substances currently regulated by EPA would

become fair game, including wastes from dairy

products processing, grain mills, seafood processing,

cement manufacturers, leather tanning and finishing

facilities, and timber products operations. See 40

C.F.R. parts 405, 406, 408, 411, 425, and 429. There

would be little the Corps could not permit mining and

other companies to dump in waters of the United

States — including toxic mine tailings containing

unlimited amounts of asbestos, arsenic, cyanide, and

sulphuric acid. Indeed, Coeur Alaska seeks to dump

waste containing mercury and lead. The Army Corps

cannot be allowed to cloak this discharge of toxic

wastes by calling it “fill.”

Because the permit the Corps issued to Coeur

Alaska cannot be reconciled with longstanding agency

interpretations of the Corps’ role under the Act and the

meaning of “fill material,” the Ninth Circuit properly

set it aside.

31

CONCLUSION

For the reasons set forth above and in

respondents’ brief, the judgment below should be

affirmed.

Respectfully submitted,

David C. Viadeck

Counsel of Record

Kathryn A. Sabbeth

Georgetown University

Law Center

600 New Jersey Ave., NW

Washington, DC 20001

(202) 662-9540

Attorneys for Amici Curiae®

November 14, 2008

* Counsel wish to acknowledge the assistance of Melissa

Birchard, a third-year law student, in the preparation of

this brief.