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Case 3:05 -cv -00784 Document 133 -2 Filed 07/14106 Page 5 of 5 PagelD #: 4502 <br />agencies' regulations requires an explicit determination by the Corps that the exclusion is <br />being relied upon so long as the record for the Corps decision includes the analysis <br />required by the regulations, i.e., that the waste treatment system be designed to meet the <br />requirements of the CWA. As a general matter, however. it is our recommendation that <br />the Corps include an explicit determination, including defining the physical extent of the <br />waste treatment system to which the exclusion applies. In any case, there is no-need for <br />a CWA permit for a discharge into the waste treatment system, including a discharge <br />from the toe of the valley fill. <br />As previously discussed. a CWA Section 402 permit is required for any discharge <br />from the waste treatment system to waters of the United States: for example. a discharge <br />to waters of the U.S. below the embankment for the sediment pond. The Corps hits <br />authority to enforce the terms and conditions of the CWA Section 404 authorizations. <br />including those relating to potential waterquality impacts associated with the <br />construction and operation of the waste treatment system. Similarly. EPA or an approved <br />state program under Section 402. has authority to enforce relevant terms and conditions <br />of the CWA Section-402 permit, including those relating to potential water quality <br />impacts associated with the use and operation of the waste treatment system. <br />I believe EPA and the Corps are in agreement regarding the applicability of the <br />waste treatment system exclusion to the surface coal mining activities described in this <br />letter.. I look forward to continuing our coordination on this issue to assure that the waste <br />treatment system exclusion is consistently and appropriately applied in a manner that <br />protects human health and the envirionment. Should you have any questions about the <br />issues raised in this letter. please feel free to contact me or have your staff call my Chief <br />of Staff, Gregory Peck. at 203 -564 -5700. <br />i <br />Benjamin R Grumbles <br />Assistant Administrator <br />