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Jerry W. Raisch, Esq. <br /> Page 2 <br /> the enclosed letter makes clear , EPA' s views with regard to the <br /> need for a permit to cover mine seeps are quite different from <br /> EPA' s views with regard to dam releases . EPA views mine seeps as <br /> point source discharges that require permits . <br /> The other crucial factor which determined the Gorsuch "no permit" <br /> decision but which is absent in the Sunnyside situation, is the <br /> fact that the activity involved in Gorsuch was strictly related <br /> to the lawful exercise of a water right . While acknowledging the <br /> Clean Water Act ' s heavy reliance on permits to control water pol- <br /> lution, the Gorsuch Court found support for its decision not to <br /> require permits for dam releases on the Congressional intent , as <br /> expressed in Section 101 (g) of the Act , that there should be <br /> minimal interference with state water management decisions . See <br /> Gorsuch at 1122 . The potential discharges associated with the i <br /> plugging of the Sunnyside mine tunnels are the result of a reme= <br /> dial effort and not the result of a water quantity management <br /> plan. Therefore, the Gorsuch rationale does not apply here . <br /> While Gorsuch is inapposite here, a recent Ninth Circuit Court <br /> decision provides guidance in the Sunnyside situation. Please <br /> refer to Committee to Save Mokelumne River v. East Bay Utility <br /> District, 13 F. 3d 305 ( 9th Cir . 1993 ) . I also recommend that you <br /> look at the lower court ' s decision in that case for a very rele- <br /> vant discussion on the subject of "discharge of pollutants . " <br /> In sum, I feel that the Division' s position in this matter is <br /> legally sound and I disagree with your assessment to the contrar- <br /> y. I agree, however , that working toward a mutually acceptable <br /> solution is in everyone ' s best interest . I understand that the <br /> Division has already mailed a letter to Sunnyside Gold Corpora- <br /> tion suggesting an approach to develop a monitoring protocol and <br /> action plan for the site. That should be a good first step <br /> towards resolution. Please do not hesitate to call me if you <br /> have any questions or further comments . <br /> Sincerely, <br /> - AMELIA WHITING <br /> Assi ant Attorney General <br /> Nat ral Resources Section <br /> ( 3 3 ) 866-5117 <br />