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1994-05-19_GENERAL DOCUMENTS - M1977378
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1994-05-19_GENERAL DOCUMENTS - M1977378
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DRMS Permit Index
Permit No
M1977378
IBM Index Class Name
GENERAL DOCUMENTS
Doc Date
5/19/1994
Doc Name
Legal Correspondence
From
Echo Bay Mines
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DMG
Permit Index Doc Type
General Correspondence
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D
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18 ERC 1120 .Vatzonal Wildlife Federation Gorsuch <br /> Although Congress did not expressly limits and enforcement was all but nonex- <br /> address whether EPA should have discre- istent.60 The 1972 Act made technology- <br /> tion to define the term "addition," we based effluent limits, rather than water <br /> note that it gave the agency reasonable quality standards, "the basis of pollution <br /> f discretion to define two other necessary prevention and elimination" because they <br /> ( components of the §402 permit program were "the best available mechanism to <br /> — "point source" and "pollutant." On control water pollution." S. Rep. at 8, <br /> that basis, : we consider it likely that 1972 Leg. Hist. 1426.61 <br /> Congress would have given EPA similar Nonetheless, it does not appear that <br /> discretion to define "addition" had it Congress wanted to apply the NPDES <br /> f expected the meaning of the term to be system wherever feasible. Had it wanted <br /> 3k;[; disputed. Therefore, EPA's interprets- to do so, it could easily have chosen <br /> tion must be accepted unless manifestly suitable language, e.g., "all pollution re- <br /> unreasonable, and we do not find it so. leased through a point source." Instead, <br /> .accord.LA our' ex rel.Ashcroft v. Department as we have seen, the NPDES system was <br /> of the Army, 672 F.2d 1297, 1304 [17 ERC limited to "addition" of "pollutants" <br /> 10011 (8th Cir. 1982) ("[T]he discharge "from" a point source. <br /> of a pollutant requires an `addition' of a The legislative history of the 1977 <br /> pollutant from a `point source' and nei- amendments further bolsters the view <br /> ther term applies] to soil erosion or the that the division of pollution control <br /> oxygen content of the water."). efforts between discharge permits under <br /> 3. The Primac,; of §402 in the §402 and areawide waste management <br /> Legislative Scheme plans under §208 was not just a device <br /> for separating out pollution sources ame- <br /> y The Wildlife Federation also argues nable to NPDES technological controls. <br /> ' that the definitions of pollutant' and Rather, Congress viewed state pollution <br /> "addition" should be read broadly be- <br /> cause the NPDES permit program is <br /> control« programs under §208 as In part <br /> Congress' preferred method of water an experiment>, in the effectiveness of <br /> state regulation. See S. Rep. No. 370, 95th <br /> pollution control and would have been <br /> ' Cong. 1st Sess. 8-9, 1977 Leg. Hist. 633, <br /> applied to all sources of pollution had 642-43 ("1977 S. Rep.") (emphasis add- <br /> Congress thought that it was technologi- ed): <br /> tally feasible to do so.59 There is indeed In 1972, the Congress made a clear <br /> some basis in the legislative history for and precise distinction between point <br /> the position that Congress viewed the sources, which would be subject to <br /> NPDES program as its most effective direct Federal regulation, and non- <br /> weapon against pollution. Prior to 1972, point sources, control of which was <br /> federal water pollution law had required specifically reserved to State and local <br /> the states, under EPA oversight, to devel-op water quality standards and then limit governments through the section 208process. <br /> industrial and municipal discharges so as <br /> to meet those standards. This system Between requiring re- <br /> proved au- <br /> proved inadequate. It was costly, slow, g <br /> and complicated to determine the ef-. thority for non-point sources, or con- <br /> fluent limits needed to maintain water tinuing the section 208 experiment, the <br /> quality. Many states did not set effluent committee chose the latter course, <br /> judging that these matters were appro- <br /> i9 Wildlife Federation Brief at 3-3, 24. The priately left to the level of government <br /> district court agreed. 530 F.Supp. at 1304 (!'it closest to the sources of the problem. <br /> appears that Congress would have put all T'A'le Senate Report also expresses a posi- <br /> pollutlon sources under [the NPDES] program tive intent to leave certain poilution prob- <br /> had it been feasible" to do so). Case support <br /> fcr this view can be found in Natural Re- 60 For an overview of the weaknesses of <br /> sources Defense Council, Inc. v. Costle, 568 prior law and the major changes introduced in <br /> F.2d 1369, 1374 (D.C. Cir. 1977) (NPDES the Clean Water Act, see EPA v. California ex <br /> program "is central to the enforcement of the rel. State Water Resources Control Bd., 426 <br /> [Act]") and United States v. Earth Sciences, U.S. 200, 202-05 [8 ERC 20891 (1976); S. Rep. <br /> Inc., 599 F.2d 368, 373 (10th Cir. 1979) at 1-10, 1972 Leg. Hut. 1419-28. <br /> ("Congress would have regulated so-called 61 For further cites to the legislative history, <br /> non-point sources if a workable method could see the district court opinion, 530 F.Supp. at <br /> have been derived"). 1304 n.56. <br />
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