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Annette Quiff <br />Dave Akers <br />June 12, 2000 <br />I'agc G <br />40 C.F.It. S 122.31. <br />We arc tnvare that CDPHI{ has departed iron; tl,c fcdc:al regulatory approach in iu <br />calculation of penalties for tntpcnniued discharge here. We submit that CDPHE's <br />appl'O:rCh IS contrary to the intent of the (ae,n 1\`atcr Act and state stahrtc, howrror, <br />because it provides no encouragcmen[ for a discharger to apply for and obtain its permit <br />in advance of discharging. Any discharger may simply apply for a permit on the date the <br />discharge begins. lluring the entire period of time post-application bttt prior to permit <br />issuance, the discharger operates without etflucnt limitations and without ntoniturin; or <br />reporting requirements. This is contrary to the public nttcresl and the purh~ose o''the r\ct. <br />'!'hc pertinent cast law supports our position: <br />1'o be in campliancc with the CWA, it is necessary to not only apply for, but also <br />to have a }tcnttit. ,Ylukeluntne ltivc`r, l3 1~.3d a[ 309; 33 U.S.C. § 1311(a;, <br />1342(a); .sec at:ro U~tited Stares v. Tom-lint Uev., Inc., G14 P, Sttplt, G13, G14 (D. <br />Alaska 1985) (holding good faith efforts to acquire requisite permits under 37 <br />L.S.C. {~ 1342 does not absolve defendant of potential liability for CWA viola- <br />tions). <br />dem•IOOJh Allrerrrce v. Croton Brrtre Miner, 904 F.5upp. 11 G8, 1174 (.D. Mont. 1995). <br />l Iere, accordingly, the days of violation for DM should not be capped as of the dale of <br />appiication. 1'ltc public is tltc loser when a discharger ignores its clear responsiltility to <br />obtain a discharge pemtit. As is described at Icngtlt in ¶ 17(a) below, QM knew or <br />should have known of its duty to obtain a permit for the groundwater discharge. BM <br />should trove monitored so as to have been aware of the inception of that dischar;c and <br />should Itavc applied for tht permit at that time. HM should not he rewarded, in the form <br />oC a cap on penalties, for waiting to apply for its discharge permit until such a late date. <br />(b) The nlianoc olt data from BM fails to n:cognizc the occurrence ofpolluutnl:: in the <br />Rito Scco prior to October 7, 1997. CDPHF. looks at when pollutants occurred in the <br />1Lito Scco at ItS-5, a good distance downstream of the West Pil. The proper incuiry <br />would be when pollutants occurred at RS ~, closer to the Wcst Pit. By using RS-5, <br />CDPFJL gives BM n grace pciiod for the time during which pollutants were dis~:harged <br />flan tltc Nest Pit and travrletl downstream [n RS-5. '1-Ire $iVt monitoring data show that <br />elevated levels of sulfare (using 5G.1 mgll as elevated, as does CDPHE in l l L2 of the <br /> <br />