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<br /> �Vatzonal U'icalife Federation v. Gorsuch 18 ERC 1117
<br /> solid -Pollution" as that term is defined in tant" in §502(6) was designed to add
<br /> gar- _ §502(19), 33 U.S.C. § 1362(19), and that "municipal discharges" to the "basic for-
<br /> mical it would be pointless to recognize dam- mula" of the Refuse Act. S. Re No. 414.
<br /> active ' : Rep.
<br /> induced water changes as pollution with- 92d Cong., 1st Sess. 76 (1971) ("S.
<br /> irded out treating these same changes as in- Rep."), reprinted in 2 Congressional Re-
<br /> and __ volving a pollutant.50 The argument has
<br /> Rural search Service, Environmental Policv Di-
<br /> some superficial appeal. The Supreme vision, 93d Cong., lst Sess., A Legislative
<br /> -here = Court, however, has ruled that certain History of the Water Pollution Control Act
<br /> tions, radioactive materials are not "pollutants" Amendments of 1972, at 1415, 1494
<br /> coon even though they undoubtedly emit "pol- (Comm. Print 1973) ("1972 Leg.
<br /> sub- - lution." Train v. Colorado Public Interest st
<br /> Hist. '). Thus, while Congress did not
<br /> vater Research Group, Inc., 426 U.S. 1 (1976)- specifically exclude dams from the
<br /> g of Moreover, under usual rules of statutory NPDES program, it expressed neither
<br /> new construction, use of two different terms is specific intent to include them nor gener-
<br /> used presumed to be intentional, see, e.g., Rus- al intent to equate "pollutant" and " ol-
<br /> �Ilu- sell v. Lau, Enforcement Assistance Administra- lution." Also, the broad term "refuse"
<br /> ed11 lion, 637 F.2d 354, 356 (5th Cir. 1981), was replaced with a list of specific items
<br /> s, especially when the le;slation specially "so that litigable issues are avoided over
<br /> e
<br /> vhat defines both terms. Finally, EPA's policy- the question of whether the addition of a
<br /> yin oriented explanation for the distinction particular material is subject to control
<br /> Ali g that Congress purposely limited the requirements." Id. Needless to say, if
<br /> in , federal NPDES permit program to certain «pollutant" was intended to be as all-
<br /> •tion well-recognized pollutants and left con- encompassing as "pollution," there
<br /> trol of other water-altering substances or would have been no need to fear liti a
<br /> hat quite plausible.
<br /> conditions to the states under §208 — is lion over what it included, and hence n o
<br /> s2
<br /> need for such a definitional list.
<br /> '�- The legislative history, while not en-tirely consistent with the statutory Ian- The reasonableness of EPA's distinc-
<br /> guage, further suggests that the Act does lion between "pollutant" and "pollution"
<br /> T V. not require EPA to treat dam-induced is reinforced by the changes made in
<br /> water conditions as "pollutants." Prior sz This statement in the Senate Report is
<br /> ;en law (the Refuse Act of 1899, 33 U.S.C. inaccurate since the 1972 Act also added such
<br /> t a §407), had required a permit only for items as "agricultural waste," "munitions,"
<br /> S. industrial discharges of"refuse" into navi- "rock," and "sand" to the definition of"pollu-
<br /> PA gable waters. The definition of "pollu- tant." We rely on it only to indicate that
<br /> )es Congress did not affirmatively intend "pollu-
<br /> so Wiidlife Federation Brief at 14. There is tant" to be all-inclusive.
<br /> er- some weak case support for this view. In South SY Again, the text of the definition cannot be
<br /> its. Carolina Wildlife Federation v. Alexander,457 fully reconciled with the legislative history.
<br /> on F.Supp. 118, 125 (11 ERC 2045] (D.S.C. 1978) The Act defines "pollutant" to include "indus-
<br /> 2d (South Carolina I), the court supported its trial, municipal, and agricultural waste," itself
<br /> z 1 conclusion that low dissolved oxygen could an imprecise and therefore litigable term.
<br /> n- possibly be a chemical waste by noting that
<br /> A "no reasonable purpose would be served by The House Report is of little help in deter-
<br /> ict admitting pollution while denying the exis- mining how inclusive Congress meant the term
<br /> nt fence of a pollutant." Subsequently, however, "Pollutant" to be. It stresses the importance of
<br /> the definitions in general but does not discuss
<br /> ]- . the same court found the broad definition of the substance of articular defined terms. See
<br /> �T pollution to be only suggestive and "not H.R. Re No. 911, 92d Con 2d Sess. 75-76
<br /> 3 dispositive of the `pollutant' question." South (1972), 1972 Leg. Hist. 753, 762-63 [hereinaf-
<br /> Carolina II, supra note 47, —F.Supp.at 7, slip ter cited as H.R. Re
<br /> 'x op. at 25. In United States v. Earth Sciences, p']'
<br /> Inc., 599 F.2d 368, 373 (loth Cir. 1979), the In order to fully understand (the Act], it is
<br /> `e court stated: "We believe it contravenes the necessary to recognize that certain terms ...
<br /> 1-`'J intent of [the Act] and the structure of the have very specific and technical meanings.
<br /> n« statute to exempt from regulation any activity The definitions of these terms are included
<br /> �t that emits pollution from an identifiable in section 502 of title V, and it is recom-
<br /> d, point." Earth Sciences, however, involved an mended that very special attention be ac-
<br /> admitted toxic pollutant. The court, in decid- corded section 502 .... [S]ome of the more
<br /> ing that mining activity can involve a "point important terms ... [are] "pollution" ... ,
<br /> source," apparently did not focus on the "pollutant" ... , "discharge of a pollutant"
<br /> .: statutory distinction between pollutant and "thermal discharge" ... "discharge,"
<br /> a pollution. (and] "point source" ....
<br /> s• Il
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