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CASE NO. 11-70776
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
NATIVE VILLAGE OF KIVALINA IRA COUNCIL, NATIVE VILLAGE OF POINT HOPE IRA COUNCIL, ALASKA COMMUNITY ACTION ON TOXICS, and NORTHERN ALASKA ENVIRONMENTAL CENTER Petitioners,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Respondents,
and
TECK ALASKA, INCORPORATED and NANA REGIONAL CORPORATION, Intervenors.
PETITIONERS’ OPENING BRIEF
VICTORIA CLARK BROOK BRISSON BRENT NEWELL TRUSTEES FOR ALASKA SOFIA PARINO 1026 W. 4th Ave., Suite 201 CENTER ON RACE, POVERTY & THE Anchorage, Alaska 99501 ENVIRONMENT (907) 276-4244 47 Kearny Street, Suite 804 San Francisco, CA 94108 (415) 346-4179 Attorneys for Petitioners Native Village of Point Hope IRA Council, Attorneys for Petitioner Native Alaska Community Action on Toxics, Village of Kivalina IRA Council and Northern Alaska Environmental Center
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CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appellate Procedure 26.1,
Petitioner Native Village of Kivalina IRA Council states as follows: 1) Native
Village of Kivalina IRA Council has no parent companies, and 2) there are no publicly-owned companies that have a 10% or greater ownership in the Native
Village of Kivalina IRA Council.
Native Village of Kivalina IRA Council is the governing body of the Native
Village of Kivalina, a federally recognized Tribe established pursuant to the provisions of the Indian Reorganization Act of 1934 and amended in 1936.
Petitioner Native Village of Point Hope IRA Council states as follows: 1)
Native Village of Point Hope IRA Council has no parent companies, and 2) there are no publicly-owned companies that have a 10% or greater ownership in the
Native Village of Point Hope IRA Council.
Native Village of Point Hope IRA Council is the governing body of the
Native Village of Point Hope, a federally recognized Tribe established pursuant to the provisions of the Indian Reorganization Act of 1934 and amended in 1936.
Petitioner Alaska Community Action on Toxics states as follows: 1) Alaska
Community Action on Toxics has no parent companies, and 2) there are no publicly-owned companies that have a 10% or greater ownership in Alaska
Community Action on Toxics.
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Alaska Community Action on Toxics is a non-profit corporation whose organizational purpose is to assure justice by advocating for environmental and community health and works to protect Alaskans‘ and Alaska Natives‘ rights to clean water.
Petitioner Northern Alaska Environmental Center states as follows: 1)
Northern Alaska Environmental Center has no parent companies, and 2) there are no publicly-owned companies that have a 10% or greater ownership in the
Northern Alaska Environmental Center.
Northern Alaska Environmental Center is a non-profit corporation whose organizational purpose is to promote conservation of the environment and sustainable resource stewardship in Interior and Arctic Alaska through education and advocacy.
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TABLE OF CONTENTS CORPORATE DISCLOSURE STATEMENT...... i
TABLE OF AUTHORITIES……………………………………………………….v
CHRONOLOGY OF RELEVANT DATES……………………………………….1
INTRODUCTION………………………………………………………………….4
STATEMENT OF JURISDICTION……………………………………………….5
STATEMENT OF THE ISSUES…………………………………………………..5
STATEMENT OF THE CASE…………………………………………………….6
STATUTORY BACKGROUND…………………………………………………..9
STATEMENT OF FACTS………………………………………………………..11
A. The Red Dog Mine and the Aqqaluk Expansion……………………11
B. NPDES Permits for the Red Dog Mine…………..…………………12
C. History of Violations at the Red Dog Mine…………………………14
D. Relevant 1998 Permit Monitoring Conditions………………………17
E. Relevant 2010 Permit Monitoring Conditions………………………18
SUMMARY OF THE ARGUMENT……………………………………………..20
STANDARD OF REVIEW……………………………………………………….20
STANDING……………………………………………………………………….23
A. The Native Villages Suffer Injury to their Interest in Clean Water and Subsistence Fishing………………………….…24
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B. The Conservation Groups Suffer Injury to their Organizational Interests………………………………………..…………………….26
C. Reduced Monitoring and Reporting in the 2010 Permit Inflicts Informational Injury…………………………………………28
D. The Native Villages and Conservation Groups Suffer Procedural Injury…………………………………………………….30
E. The Injuries to the Native Villages and Conservation Groups are Caused by the 2010 Permit and the EAB Order Denying Review…………………………………………...…31
F. A Favorable Decision by this Court will Redress the Injuries………31
ARGUMENT……………………………………………………………………...32
I. THE ORDER DENYING REVIEW OF THE MONITORING ISSUES IN THE ADMINISTRATIVE APPEAL WAS ARBITRARY, CAPRICIOUS, AND AN ABUSE OF DISCRETION……………………………………..32
A. An Administrative Appeal Must Identify the Permit Conditions at Issue and Explain why EPA‘s Responses to Comments were Clearly Erroneous and Warranted Review…32
B. Kivalina Complied with the EAB‘s Procedural Requirements…………………………………………………33
C. The Environmental Appeals Board Ignored Kivalina‘s Compliance with 40 C.F.R. § 124.19(a)……………………...34
D. Kivalina‘s Compliance with 40 C.F.R. § 124.19(a) Contrasts Starkly with Appropriately Dismissed Appeals……………...40
CONCLUSION AND RELIEF REQUESTED……………...... 42
CERTIFICATE OF COMPLIANCE WITH WORD LIMIT……………………..44
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STATEMENT OF RELATED CASES…………………………………………...45
CERTIFICATE OF SERVICE……………………………………………………46
EXHIBIT 1: STANDING DECLARATIONS
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TABLE OF AUTHORITIES
FEDERAL STATUTES
Akhtar v. Burzynski, 384 F.3d 1193 (9th Cir. 2004) ...... 22
Am. Fed’n of Gov’t Employees Local 1 v. Stone, 502 F.3d 1027 (9th Cir. 2007) ...... 26
American Mining Congress v. U.S. EPA, 965 F.2d 759 (9th Cir. 1992) ...... 9
Burlington Truck Lines v. United States, 371 U.S. 156 (1962) ...... 21
Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) ...... 22
City of L.A. v. United States Dep’t of Commerce, 307 F.3d 859, 868 (9th Cir. 2002) ...... 22
City of Pittsfield v. U.S. Environmental Protection Agency, 614 F.3d 7 (1st Cir. 2010) ...... 41
Defenders of Wildlife v. Browner, 191 F.3d 1159 (9th Cir. 1999) ...... 21
Desert Citizens Against Pollution v. Bisson, 231 F.3d 1172 (9th Cir. 2000) ...... 21
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167 (2000) ...... 23
Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) ...... 27
In re Teck Cominco, 2004 EPA App. LEXIS 12, (June 15, 2004) ...... 13
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In re Teck Cominco, 2007 EPA App. LEXIS 43 (EAB, Oct. 10, 2007) ...... 13
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ...... 31
Massachusetts v. EPA, 549 U.S. 497 (2007) ...... 31
Michigan Department of Environmental Quality v. U.S. Environmental Protection Agency, 318 F.3d 705 (6th Cir. 2003) ...... 41
Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29 (1983) ...... 21
Natural Resources Defense Council, Inc. v. EPA, 966 F.2d 1292 (9th Cir. 1992) ...... 23
NRDC v. U.S. Environmental Protection Agency, 863 F.2d 1420 (9th Cir. 1988) ...... 9
Pitt River Tribe v. U.S. Forest Service, 469 F.3d 768 (9th Cir. 2006) ...... 26
Public Util. Dist. No. 1 v. Federal Emergency Mgmt. Agency, 371 F.3d 701 (9th Cir. 2004) ...... 23
Ranchers Cattleman Action Legal Fund United Stockgrowers of America v. U.S. Dep’t of Agric., 415 F.3d 1078 (9th Cir. 2005) ...... 22
Russian River Watershed Protection Comm. v. City of Santa Rosa, 142 F.3d 1136, 1139 (9th Cir. 1998) ...... 10
San Francisco Baykeeper v. Cargill Salt Div., 481 F.3d 700 (9th Cir. 2007) ...... 11
Sierra Club v. Morton, 405 U.S. 727 (1972) ...... 27
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Smith v. Pacific Properties and Dev. Corp., 358 F.3d 1097 (9th Cir. 2004) ...... 26
Summers v. Earth Island Institute, 555 U.S. 488, 129 S. Ct. 1142 (2009) ...... 31
Thomas Jefferson University v. Shalala, 512 U.S. 504 (1992) ...... 22
Waterkeepers of N. Cal. v. AG Indus. Mfg., Inc., 375 F.3d 913 (9th Cir. 2004) ...... 9
Wilderness Society, Inc. v. Rey, 622 F.3d 1251 (9th Cir. 2010) ...... 28
FEDERAL STATUTES
5 U.S.C. § 706(2)(A) ...... 21
16 U.S.C. § 3121 ...... 24
33 U.S.C. § 1251(a) ...... 9
33 U.S.C. § 1311(a) ...... 9
33 U.S.C. § 1313 ...... 36
33 U.S.C. § 1318(a)(4)(A) ...... 10, 36, 39, 40
33 U.S.C. § 1341(a) ...... 10
33 U.S.C. § 1342 ...... 5, 23
33 U.S.C. § 1342(a)(1) ...... 9, 39
33 U.S.C. § 1342(a)(2) ...... 10, 28
33 U.S.C. § 1342(o) ...... 10
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33 U.S.C. § 1362(5) ...... 23
33 U.S.C. § 1365(a)(1) ...... 10, 29, 28
33 U.S.C. § 1365(f) ...... 28, 29
33 U.S.C. § 1365(f)(6) ...... 10
33 U.S.C. § 1369(b)(1)...... 5
33 U.S.C. § 1369(b)(1)(F) ...... 5, 23
33 U.S.C. § 1369(b)(3)...... 42
33 U.S.C. § 3121 ......
43 U.S.C. § 1606 ...... 11
FEDERAL REGULATIONS
40 C.F.R. § 124.19(a) ...... 8, 30, 32, 33
40 C.F.R. § 124.19(d) ...... 8
FEDERAL REGISTER NOTICES
73 Fed. Reg. 66243 (Nov. 7, 2008)...... 8
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CHRONOLOGY OF RELEVANT DATES 1985 EPA issued the first National Pollutant Discharge
Elimination System (―NPDES‖) permit for the Red Dog
Mine.
1990 NPDES Permit expired.
November 24, 1997 Consent Decree entered that imposes a $1.7 million civil
penalty for alleged Clean Water Act violations at the Red
Dog Mine.
July 17, 1998 EPA reissues NPDES permit for the Red Dog Mine
(―1998 Permit‖).
2003 EPA proposes to reissue NPDES permit for Red Dog
Mine; reissued permit does not take effect; 1998 Permit
administratively extended.
March 8, 2004 Several Kivalina residents file a Clean Water Act citizen
suit alleging Clean Water Act violations at the Red Dog
Mine.
July 28, 2006 The U.S. District Court for the District of Alaska granted
summary judgment to the Kivalina residents, establishing
621 violations of the Clean Water Act.
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August 24-30, 2006 EPA inspects the Red Dog Mine and discovers that Red
Dog Mine is diluting effluent discharged from Outfall
001 in violation of the 1998 Permit.
May 6, 2008 The District Court entered judgment in favor of the
Kivalina residents, establishing an additional 206
violations of the Clean Water Act.
October 23, 2008 Consent Decree resolved the citizen suit.
March 2007 EPA proposes to reissue NPDES permit for Red Dog
Mine (―2007 Permit‖).
September 27, 2007 EPA withdraws 2007 Permit to conduct additional
National Environmental Policy Act analysis.
December 5, 2008 EPA proposes to reissue NPDES permit for Red Dog
Mine (―2010 Permit‖).
September 4, 2009 EPA and Teck entered into a Consent Agreement and
Final Order to resolve the alleged monitoring violations.
January 8, 2010 EPA reissued 2010 Permit for Red Dog Mine.
February 16, 2010 Kivalina petitioned the Environmental Appeals Board
(―EAB‖) for review of the 2010 Permit.
February 19, 2010 Teck admits it has never been able to comply with the
Total Dissolved Solids limits in the 1998 Permit. 2 Case: 11-70776 06/04/2011 Page: 13 of 124 ID: 7774252 DktEntry: 20
February 26, 2010 EPA stayed the 2010 Permit‘s effluent limits for lead,
selenium, zinc, weak acid dissociable cyanide, and Total
Dissolved Solids pending appeal; EPA imposed stricter
limits in 1998 Permit pending appeal.
March 17, 2010 EPA withdrew the 2010 Permit‘s limits it had stayed and
imposed the corresponding 1998 Permit limits until
further agency action.
March 18, 2010 EPA filed a motion to dismiss the antidegradation and
backsliding sections of the administrative petition.
April 6, 2010 EPA filed a second motion to dismiss the wastewater
pipeline issue.
April 30, 2010 EAB granted both motions to dismiss, leaving only the
monitoring issues in section II.C.3 of the administrative
appeal for resolution.
October 31, 2010 Permitting authority over Clean Water Act NPDES
permits for mining operations in Alaska transferred from
the EPA to the State of Alaska.
November 18, 2010 The EAB issued the Order Denying Review.
February 18, 2011 Kivalina filed Petition for Review in the Ninth Circuit
Court of Appeals. 3 Case: 11-70776 06/04/2011 Page: 14 of 124 ID: 7774252 DktEntry: 20
INTRODUCTION This Petition for Review is but one more chapter in a long struggle to protect water quality in, and the subsistence use of, the Wulik River system from mining waste generated by the Red Dog Mine. Even with a long history of violating the
Clean Water Act, including dilution of the mine‘s discharges with diverted fresh water to manipulate monitoring data, the U.S. Environmental Protection Agency
(―EPA‖) reissued a National Pollutant Discharge Elimination System permit to
Teck Alaska, Inc. over the objections of Petitioners Native Village of Kivalina IRA
Council, et al. (collectively ―Kivalina‖). This new permit relaxed effluent limits for lead, zinc, cyanide, selenium, and Total Dissolved Solids, as well as substantially reducing the amount of self-monitoring required of Teck.
Kivalina appealed to the Environmental Appeals Board (―EAB‖).
Recognizing an impending defeat, EPA withdrew those five relaxed limits and moved to dismiss most of the appeal as moot. The EAB granted EPA‘s motions, and later dismissed the remaining monitoring issues on a procedural technicality.
The EAB‘s Order Denying Review that improperly dismissed Kivalina‘s appeal was arbitrary, capricious, and an abuse of discretion because Kivalina carefully set forth the relevant permit conditions and articulated why EPA‘s response to comments was in error and warranted review. This Court should thus
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hold that Kivalina met its threshold procedural burden, grant this Petition, and remand this matter to the EAB to resolve the appeal on the merits.
STATEMENT OF JURISDICTION This is a petition for review of a final action of the United States
Environmental Protection Agency (―EPA‖) made under the Clean Water Act (―the
Act‖). This Court has jurisdiction pursuant to section 509(b)(1)(F) of the Act, 33
U.S.C. § 1369(b)(1)(F), which provides that a petition for review of an EPA action issuing or denying a permit under section 402, 33 U.S.C. § 1342, may be filed by
―any interested person in the Circuit Court of Appeals for the Federal judicial district in which such person resides[.]‖ 33 U.S.C. § 1369(b)(1)(F). The petition for review must be filed within 120 days of the date of such determination. 33
U.S.C. § 1369(b)(1). On November 18, 2010, the Environmental Appeals Board
(―EAB‖) issued the Order Denying Review, the final action which Kivalina petitions this Court for review. Petitioners‘ Excerpts of Record (―ER‖) 1:11-22.1
Kivalina timely filed this Petition for Review on February 18, 2011.
1 All citations to the record are by volume and page number. For example, a citation to Volume II, page 150 is ER 2:150. Document page numbers in Petitioners‘ Excerpts of Record are located in the upper right corner on each page. 5 Case: 11-70776 06/04/2011 Page: 16 of 124 ID: 7774252 DktEntry: 20
STATEMENT OF THE ISSUES 1. Whether the Order Denying Review of Kivalina‘s administrative appeal was
arbitrary, capricious, and an abuse of discretion when the appeal identified the
permit conditions at issue and described why EPA‘s responses to comments
were clearly erroneous and warranted review.
STATEMENT OF THE CASE On January 8, 2010, EPA reissued, for a term of five years, National
Pollutant Discharge Elimination System (―NPDES‖) Permit No. AK-003865-2
(―2010 Permit‖) to Teck Alaska, Inc. (―Teck‖), which allows continued discharges of wastewater from the Red Dog Mine into the Middle Fork of Red Dog Creek and new wastewater and storm water discharges associated with the mine‘s expansion into the Aqqaluk Deposit. ER 2:37, 2:58. On February 16, 2010, Kivalina timely petitioned the EAB for review of the 2010 Permit pursuant to 40 C.F.R. §
124.19(a). ER 1:1; ER 2:59-74.
The administrative appeal alleged four main reasons why the 2010 Permit violated the Clean Water Act. First, because Alaska lacked antidegradation implementation procedures necessary to certify that the 2010 Permit met Alaska‘s water quality standards, EPA could not lawfully issue the 2010 Permit when the permit relaxed effluent limits for lead, selenium, zinc, cyanide, and Total
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Dissolved Solids (―TDS‖)2 from the previous NPDES permit, issued in 1998
(―1998 Permit‖). ER 1:24, 27; 2:134-135. Second, the 2010 Permit violated the
Clean Water Act because by relaxing those effluent limits, EPA unlawfully allowed backsliding from the more stringent 1998 Permit limits. ER 1:27; 2:134-
135. Third, EPA abused its discretion when it relaxed monitoring and reporting requirements imposed by the 1998 Permit. ER 2:70-72. Finally, the Native
Village of Kivalina IRA Council argued that EPA had the authority to require Teck to discharge, through a wastewater pipeline, directly into the Chukchi Sea instead of into the Wulik River system and that EPA‘s refusal to require the pipeline was an abuse of discretion. ER 1:27; 2:147.
On February 26, 2010, EPA stayed the 2010 Permit‘s less-stringent effluent limits for lead (monthly average limit), selenium (daily maximum), zinc, weak acid dissociable (WAD) cyanide, and TDS pending resolution of the administrative petition. ER 2:128. Also pending resolution of the petition, EPA imposed the
1998 Permit‘s stricter limits for lead (monthly average limit), selenium (daily maximum), zinc, total cyanide, and TDS. Id. Finally, EPA found the remaining permit conditions uncontested and severable, and allowed them to go into effect.
Id.
2 The term ―Total Dissolved Solids‖ means dissolved inorganic salts and organic matter in water. ER 2:120. 7 Case: 11-70776 06/04/2011 Page: 18 of 124 ID: 7774252 DktEntry: 20
On March 17, 2010, pursuant to 40 C.F.R. § 124.19(d), EPA withdrew the
2010 Permit‘s limits it had stayed and imposed the corresponding 1998 Permit limits until further agency action. ER 2:130.
On March 18, 2010, EPA filed a motion to dismiss the antidegradation and backsliding sections of the administrative petition, arguing that those issues were moot because EPA withdrew the relaxed limits. ER 2:132-143. On April 6, 2010,
EPA filed a second motion to dismiss, arguing that the wastewater pipeline issue was moot because EPA withdrew the TDS limit. ER 2:144-151.
On April 30, 2010, the EAB granted both motions, leaving only the monitoring issues in section II.C.3 of the appeal for resolution. ER 1:23-32.
On October 31, 2010, permitting authority over Clean Water Act NPDES permits for mining operations in Alaska transferred from the EPA to the State of
Alaska. 73 Fed Reg. 66243, 66244 (Nov. 7, 2008). EPA retained control over the
Red Dog Mine permit, however, because section 3.03-2(b) of the Memorandum of
Agreement governing the transfer reserved authority to EPA for permits with pending appeals. ER 2:152-154.
On November 18, 2010, the EAB denied review of the monitoring and reporting issues because it concluded Kivalina did not demonstrate that EPA‘s responses to the comments were clearly erroneous or otherwise warranted review as required by 40 C.F.R. § 124.19(a). ER 1:12, 20-21. 8 Case: 11-70776 06/04/2011 Page: 19 of 124 ID: 7774252 DktEntry: 20
STATUTORY BACKGROUND
The goal of the Clean Water Act is ―to restore and maintain the chemical, physical and biological integrity of the nation‘s waters.‖ 33 U.S.C. § 1251(a). To achieve this goal, section 301(a) of the Act, 33 U.S.C. § 1311(a), prohibits any discharge of pollutants into waters of the United States, unless such discharge is authorized by an NPDES permit. Waterkeepers of N. Cal. v. AG Indus. Mfg., Inc.,
375 F.3d 913, 915 (9th Cir. 2004), citing Ecological Rights Found. v. Pacific
Lumber Co., 230 F.3d 1141, 1145 (9th Cir. 2000).
―NPDES permits contain numerical limits on the amounts of specified pollutants that may be discharged.‖ American Mining Congress v. U.S. EPA, 965
F.2d 759, 762 n.3 (9th Cir. 1992). These ―effluent limitations‖ implement both technology-based and water quality-based requirements of the Act. Id., citing 33
U.S.C. §§ 1311-1317, 1362(11). When EPA has not issued national effluent guidelines for a category of point sources, the Agency is authorized under section
402(a)(1) of the Act, 33 U.S.C. § 1342(a)(1), to develop individualized limitations in an NPDES permit on a case-by-case basis using ―best professional judgment.‖
NRDC v. U.S. Environmental Protection Agency, 863 F.2d 1420, 1424 (9th Cir.
1988).
Prior to EPA issuing an NPDES permit, section 401 of the Act requires the applicant to provide a certification from the state where the discharge originates 9 Case: 11-70776 06/04/2011 Page: 20 of 124 ID: 7774252 DktEntry: 20
that affirms any discharge will comply with, among other things, water quality standards. 33 U.S.C. § 1341(a) (commonly referred to as a ―401 certification‖).
To maintain water quality, once EPA issues an NPDES permit, the Act prohibits the issuance of a subsequent permit with less-stringent conditions, also known as
―backsliding.‖ 33 U.S.C. § 1342(o).
In addition to the actual effluent limitations, an NPDES permit shall contain
―conditions on data and information collection, reporting, and such other requirements as the Administrator deems appropriate‖ to ensure compliance with the permit. 33 U.S.C. § 1342(a)(2). EPA has broad authority to require such monitoring. EPA
shall require the owner or operator of any point source to (i) establish and maintain such records, (ii) make such reports, (iii) install, use, and maintain such monitoring equipment or methods (including where appropriate, biological monitoring methods), (iv) sample such effluents (in accordance with such methods, at such locations, at such intervals, and in such manner as the Administrator shall prescribe), and (v) provide such other information as he may reasonably require.
33 U.S.C. § 1313(a)(4)(A).
Congress specifically authorized any person to enforce the terms and conditions, including monitoring conditions, in an NPDES permit in U.S. District
Court. See 33 U.S.C. §§ 1365(a)(1) (citizen suit provision), 1365(f)(6); see also
Russian River Watershed Protection Comm. v. City of Santa Rosa, 142 F.3d 1136,
1139 (9th Cir. 1998). The purpose of the citizen suit provision is to permit citizens 10 Case: 11-70776 06/04/2011 Page: 21 of 124 ID: 7774252 DktEntry: 20
to enforce the Clean Water Act when the responsible agencies fail or refuse to do so. San Francisco Baykeeper v. Cargill Salt Div., 481 F.3d 700, 706 (9th Cir.
2007).
STATEMENT OF FACTS
A. The Red Dog Mine and the Aqqaluk Expansion.
The Red Dog Mine is the world‘s largest zinc mine, located in Northwest
Alaska, north of the Arctic Circle, in the DeLong Mountains, 90 miles north of
Kotzebue, and 47 miles inland from the Chukchi Sea coastline. ER 2:79. The mine straddles the Middle Fork of Red Dog Creek, a tributary to Ikalukrok Creek, which in turn flows into the Wulik River. ER 2:79, 81, 155 (Monitoring Locations
Map). The Native Village of Kivalina, a 425 person Inupiat community and federally-recognized Tribe, is located at the mouth of the Wulik River. Hawley
Decl. ¶ 4, attached as Exh. 1; ER 2:257.
Teck and the NANA Regional Corporation (―NANA‖) operate the mine in partnership. ER 2:79. NANA is a corporation formed in 1971 under the Alaska
Native Claims Settlement Act. 43 U.S.C. § 1606; ER 2:157-158. NANA owns the land and resources on which the mine is located, leases the land to Teck, and also owns the corporations that provide services to the mine. ER 2:79, 159.
NANA receives ―very substantial royalties‖ from the mine‘s income. ER 2:160.
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The mine produces 9,000 tons of ore per day using open-pit mining techniques: stripping and stockpiling ore and waste rock, and then processing ore to produce zinc and lead concentrates, which NANA trucks to the Alaska Industrial
Development and Export Authority‘s Delong Mountain Transportation System port facility. 2:79-80. Teck stores mine tailings, snow melt, and miscellaneous wastes from the mine site in an impoundment with a capacity of 39.3 million cubic yards. ER 2:79, 82. The mine treats the wastewater from the impoundment with sodium sulfide and calcium hydroxide in a complex process that purports to remove metals and other solids before discharging wastewater into the Middle
Fork of Red Dog Creek through Outfall 001. ER 2:80, 82-83, 156 (Mixing Zone
Map). Teck also discharges storm water from the mine site through various additional outfalls. ER 2:80.
B. NPDES Permits for the Red Dog Mine.
EPA issued the first NPDES permit to the Red Dog Mine in 1985. ER 2:80.
That permit expired in 1990, but EPA did not reissue the permit until July 27,
1998. ER 2:162. The 1998 Permit limited TDS at Outfall 001, before entering
Middle Fork of Red Dog Creek, to a daily maximum of 196 milligrams per liter
(―mg/l‖) and a monthly average maximum of 170 mg/l; the 1998 Permit also limited the discharge of more than a dozen additional toxic and conventional pollutants. ER 2:165-166. 12 Case: 11-70776 06/04/2011 Page: 23 of 124 ID: 7774252 DktEntry: 20
In 2003, EPA proposed to reissue the Mine‘s NPDES permit and weaken the
Permit by allowing Teck to discharge significantly higher TDS concentrations at
Outfall 001 by eliminating the end-of-pipe discharge limit and shifting TDS limits to maximum allowable in-stream concentrations. In re Teck Cominco, 2004 EPA
App. LEXIS 12, *9 (EAB, June 15, 2004).3 The Kivalina Relocation Planning
Committee appealed the 2003 Permit and the changed conditions never took effect.
Id. at *8. Without a new permit, EPA administratively extended, and Teck continued to operate under, the 1998 Permit given Teck‘s timely application for a permit renewal. ER 2:80.
In March 2007, EPA proposed to reissue the permit once again. Id. The
Petitioners in this Petition for Review and several Kivalina residents appealed that proposed permit and EPA withdrew the permit on September 27, 2007, citing the need to conduct additional National Environmental Policy Act analysis. Id.; In re
Teck Cominco, 2007 EPA App. LEXIS 43 (EAB, Oct. 10, 2007) (―Teck II‖).
3 ―The Permit Modification establishes TDS concentration limits at various points downstream from the discharge point in the Mainstem of Red Dog Creek and in Ikalukrok Creek. Specifically, those limits on in-stream TDS concentration include: (1) in the Mainstem of Red Dog Creek, a limit of 500 mg/l in the spring during arctic grayling spawning, and 1500 mg/l after arctic grayling spawning; and (2) in Ikalukrok Creek, a limit of 1000 mg/l prior to salmon spawning, and, during salmon spawning after July 25 of each year, a limit of 500 mg/l at station 160 located in Ikalukrok Creek.‖ In re Teck Cominco, 2004 EPA App. LEXIS 12, *8-9 (EAB, June 15, 2004).
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On December 5, 2008, EPA proposed another NPDES permit renewal to replace the 1998 Permit. ER 2:75. This new proposed permit continued EPA‘s strategy in the prior permits of eliminating the end-of-pipe TDS permit limits at
Outfall 001 and establishing mixing zones downstream. ER 2:43, 156 (Mixing
Zone Map). EPA also proposed to relax effluent limits for lead, zinc, selenium, and cyanide. ER 2:107. At the time EPA proposed to reissue the 2010 Permit, the
Red Dog Mine‘s Main Pit was expected to run out of zinc ore in 2012 and Teck was ―currently in the process of obtaining approvals to expand the mine into a second, adjacent pit, Aqqaluk, which would allow for continued mining through
2031.‖ ER 2:79; 155 (Monitoring Locations Map).
C. History of Violations at the Red Dog Mine.
The Red Dog Mine has a long history of violating the Clean Water Act. In the 1990s, the United States prosecuted Teck for violations, which resulted in a consent decree entered on November 24, 1997 that imposed a $1.7 million civil penalty and required Teck to implement several supplemental environmental projects. ER 2:186, 188, 190. On March 8, 2004, several Kivalina residents filed a citizen suit, Adams v. Teck Cominco Alaska, Inc., when EPA failed to enforce the
Clean Water Act. ER 2:194, 197.
Between 1998 and 2004, EPA issued four Compliance Orders by Consent because Teck could not meet the 1998 Permit‘s daily or monthly TDS effluent 14 Case: 11-70776 06/04/2011 Page: 25 of 124 ID: 7774252 DktEntry: 20
limitations. ER 2:196. The Compliance Orders by Consent all purported to modify Teck‘s duty to comply with the 1998 Permit by extending compliance with the end-of-pipe TDS limits at Outfall 0014 and including in-stream limits of 1,500 mg/l at Station 10 during the entire discharge season, and 500 mg/L at Stations 7
(or 160) during late summer. ER 2:196-197, 155 (Monitoring Location Map). The
Compliance Orders by Consent collectively stated that Teck violated both the daily maximum and monthly average TDS effluent limitations contained in the 1998
Permit during the months of September 1998, May through October of 1999, May through October of 2000, and May through October of 2001. ER 2:196-197.
On July 28, 2006, the U.S. District Court for the District of Alaska granted summary judgment to the Kivalina residents on 621 violations, establishing liability against Teck for 618 TDS discharges, a total suspended solids discharge, and two discharges to the tundra. ER 2:207-208. The District Court held that, even though EPA issued the Compliance Orders by Consent that purported to defer
Teck‘s duty to comply with the 1998 Permit, Teck must comply with both the terms of the 1998 Permit and the terms of the compliance orders. ER 2:204.
On August 24-30, 2006, and during the pendency of the citizen suit, EPA inspected the Red Dog Mine and discovered that, between 2004 and 2006, Teck
4 The 1998 Permit‘s end-of-pipe TDS limits are a daily maximum of 196 mg/l and a monthly average of 170 mg/l. ER 2:165 (Condition I.A.1). 15 Case: 11-70776 06/04/2011 Page: 26 of 124 ID: 7774252 DktEntry: 20
diluted the effluent sampled at Outfall 001, in violation of the monitoring requirements of the 1998 Permit.5 ER 2:215. EPA found one hundred eleven
(111) violations involving the deliberate dilution of the mine site‘s effluent with fresh water from Bons Creek and Teck‘s subsequent sampling and reporting of that diluted effluent. ER 2:215-216. The 1998 Permit expressly required that effluent
―samples collected shall be representative of the effluent discharged without dilution from or contact with any outside sources.‖ ER 2:165-166 (Condition
I.A.1, footnote 1). According to EPA, the dilution began after the citizen suit plaintiffs filed their action. Compare ER 2:215 with 2:197 (citizen suit filed on
March 8, 2004).
On May 6, 2008, the District Court entered judgment against Teck for 161 additional TDS violations, 34 cyanide violations, and 11 whole effluent toxicity
(WET) violations. ER 2:210-211. Thus, the Adams Court found that Teck violated its Clean Water Act permit on 824 occasions, including 776 daily TDS violations, 34 cyanide violations, and 11 daily whole effluent toxicity violations.
The parties settled the citizen suit on the eve of trial before adjudicating additional alleged violations, and the District Court entered a consent decree on October 23,
2008. ER 2:227-232.
5 The citizen suit plaintiffs were never aware of EPA‘s discovery until EPA released the proposed Consent Agreement and Final Order for public comment. 16 Case: 11-70776 06/04/2011 Page: 27 of 124 ID: 7774252 DktEntry: 20
On September 4, 2009, approximately ten months later, EPA and Teck entered into a Consent Agreement and Final Order to resolve the monitoring violations. ER 2:222. The Consent Agreement and Final Order imposed a
$120,000 administrative penalty against Teck for a total of one hundred seventy nine (179) violations. ER 2:215-218.
After Kivalina appealed the 2010 Permit to the EAB, Teck admitted that it never could meet the TDS limits in the 1998 Permit: ―Teck has never been able to comply with the [TDS limitations] in the 1998 permit, which are many orders of magnitude below that which is achievable.‖ ER 2:225. In other words, every day since July 27, 1998, on which Teck discharged its wastewater into Middle Fork of
Red Dog Creek, Teck violated the TDS limits in the 1998 Permit (or illegally diluted its effluent), and EPA never prosecuted Teck for TDS violations.
D. Relevant 1998 Permit Monitoring Conditions.
The 1998 Permit required Teck to monitor its own compliance with weekly sampling of the following end-of-pipe effluent limits at Outfall 001: (1) Lead –
19.6 µg/L daily maximum and 8.1 µg/L monthly average; (2) TDS – 196 mg/L daily maximum and 170 mg/L monthly average; (3) Zinc – 257.3 µg/L daily maximum and 119.6 µg/L monthly average; (4) Cyanide (total) – 9.0 µg/L daily maximum and 4.0 µg/L monthly average; and (5) pH in a range of 6.0-10.5 standard units. ER 2:165. 17 Case: 11-70776 06/04/2011 Page: 28 of 124 ID: 7774252 DktEntry: 20
The 1998 Permit directed Teck to collect samples at seven ambient monitoring stations: Station 140, Middle Fork Red Dog Creek upstream of Outfall
001; Station 20, Middle Fork Red Dog Creek upstream of confluence with North
Fork Red Dog Creek; Station 12, North Fork Red Dog Creek; Station 10, Mouth of
Red Dog Creek at Ikalukrok Creek; Station 9, Ikalukrok Creek upstream of confluence with Red Dog Creek; Station 73, Ikalukrok Creek downstream of confluence with Red Dog Creek; and Station 2, Wulik River. ER 2:172 (condition
I.D.1.), 155 (Monitoring Map), 156 (Mixing Zone Map). The permit required
Teck to conduct sampling at varying frequencies (e.g. monthly or bi-monthly) for individual parameters any time there is water flowing past an individual station.
ER 2:172-174.
The 1998 Permit also required biomonitoring, including fish use of Wulik
River tributaries downstream of the Red Dog Mine, metal concentrations in Dolly
Varden (a fish species), and benthic invertebrates. ER 2:175-176.
E. Relevant 2010 Permit Monitoring Conditions.
In the 2010 Permit, the EPA eliminated monitoring for hardness at Outfall
001 and instead allowed Teck to ―calculate‖ hardness since the monitoring for cations and anions apparently makes this possible. Compare 2:42 (Table 1 footnote 4) with 2:86 (Table 1, footnote 4)]. The EPA also removed monitoring for silver at Outfall 001, relying on calculations using monitoring data from ―the 18 Case: 11-70776 06/04/2011 Page: 29 of 124 ID: 7774252 DktEntry: 20
current permit cycle‖ that showed no reasonable potential to cause or contribute to the exceedance of water quality criteria for silver. ER 2:89; compare ER 2:47 with
ER 2:173-174.
Additionally, EPA discontinued monitoring for total cyanide and replaced that monitoring with monitoring for weak acid dissociable (―WAD‖) cyanide, which reports all forms of cyanide except cyanide bound to iron. Compare ER
2:47 (Table 2) with 2:173-174 (Section I.D.7). EPA eliminated ambient monitoring for cyanide entirely at stations 2, 10, 20, and 150. Id.; see also 2:156
(Mixing Zone Map). EPA also eliminated gathering data of upstream water quality
(thereby restricting the ability to compare it with downstream water quality) by eliminating all ambient monitoring of tributary streams upstream of Outfall 001.
Compare ER 2:47 (Table 2) with 2:173-174 (Section I.D.7). EPA also modified the permit to require the reporting of ambient monitoring to occur on an annual basis, rather than a monthly basis. ER 2:243-244.
At the request of the Alaska Department of Environmental Conservation
(―ADEC‖), EPA excluded from the 2010 Permit bioassessment monitoring for: (1) periphyton (as chlorophyll-a concentrations) aquatic invertebrates, taxonomic richness, and abundance on the Middle Fork of Red Dog Creek; (2) fall aerial surveys of returning chum salmon on Ikalukrok Creek; (3) metals concentrations in
Dolly Varden gill, liver, muscle, and kidney, and aerial surveys of overwintering 19 Case: 11-70776 06/04/2011 Page: 30 of 124 ID: 7774252 DktEntry: 20
Dolly Varden on the Wulik River; (4) fish presence and use on Anxiety Ridge
Creek; (5) fish presence and use on Evaingiknuk Creek; and (6) fish presence and use on Buddy Creek. Compare ER 2:88 (Table 3A) with ER 2:88-89 (Table 3B); see also ER 2:175-177 (1998 Permit), 48-49 (2010 Permit). Apparently, ADEC will include bioassessment monitoring in a state solid waste permit. ER 2:89.
However, EPA retained limited bioassessment monitoring for the North Fork Red
Dog Creek, Main Stem Red Dog Creek, and Ikalukrok Creek. 2:49 (Table 3), 249.
SUMMARY OF THE ARGUMENT The EAB, in issuing the Order Denying Review, acted arbitrarily and capriciously, and abused its discretion when it concluded that Kivalina‘s administrative appeal did not state why EPA‘s responses to comments were clearly erroneous and warranted review. In fact, Kivalina identified the relevant permit conditions and set forth argument for why EPA‘s responses to comments were clearly erroneous. Accordingly, the EAB abused its discretion when it denied
Kivalina‘s administrative appeal. The Court should vacate the order and remand the matter to the EAB for further proceedings.
STANDARD OF REVIEW The Clean Water Act does not specify a standard of review for challenges to
EPA decisions to issue an NPDES permit. Accordingly, this Court has applied the general standard of review for agency actions provided in section 706 of the
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Administrative Procedure Act, 5 U.S.C. § 706(2)(A). See Defenders of Wildlife v.
Browner, 191 F.3d 1159, 1162 (9th Cir. 1999) (applying APA standard of review to a petition for review challenging EPA‘s issuance of NPDES permits). Section
706 of the APA provides in relevant part, ―The reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . .‖ 5 U.S.C. § 706(2)(A). Where an agency has ―relied on factors which
Congress has not intended it to consider … [or] offered an explanation for its decision that runs counter to the evidence before the agency,‖ the court will reverse an agency‘s action under the arbitrary and capricious standard of review. Motor
Vehicle Mfrs. Ass’n v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 43
(1983). The agency must articulate a ―rational connection between the facts found and the choice made.‖ Burlington Truck Lines v. United States, 371 U.S. 156, 168
(1962). This Court has explained:
This standard necessitates a judicial examination of the disputed decision‘s rationale and surrounding circumstances in order to carry out the ―demand that courts ensure that agency decisions are founded on a reasoned evaluation ‗of the relevant factors.‘‖
Desert Citizens Against Pollution v. Bisson, 231 F.3d 1172, 1180 (9th Cir. 2000)
(citations omitted), quoting Marsh v. Oregon Nat. Res. Council, 490 U.S. 360, 378
(1989). While this Court has recognized that the review of agency actions is
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deferential, it has also noted its responsibility to provide its own thorough review.
See, e.g., Ranchers Cattleman Action Legal Fund United Stockgrowers of America v. U.S. Dep’t of Agric., 415 F.3d 1078, 1093 (9th Cir. 2005) (―While review is . . . deferential, it is not toothless; courts must conduct a ‗thorough, probing, in-depth‘ inquiry into the validity of [agency decisions].‖).
When reviewing EPA‘s construction of a statute, this Court follows the two- part test established in Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837 (1984) (―Chevron‖). City of L.A. v. United States Dep’t of Commerce,
307 F.3d 859, 868 (9th Cir. 2002). The first step is to determine whether Congress has spoken directly to the precise question at issue. Akhtar v. Burzynski, 384 F.3d
1193, 1198 (9th Cir. 2004), citing Chevron, 467 U.S. at 842. If the intent of
Congress is clear, the court must give effect to the unambiguously expressed intent of Congress. Akhtar, 384 F.3d at 1198. If the statute is silent or ambiguous, a reviewing court will defer to an agency‘s interpretation if reasonable. Id.
However, the Court owes no deference to agency interpretations that construe the statute ―in a way that is contrary to congressional intent or that frustrates congressional policy.‖ Id.
Finally, the Court should defer to EPA‘s interpretation of its own regulations unless the interpretation is plainly erroneous or inconsistent with the regulation.
See Thomas Jefferson University v. Shalala, 512 U.S. 504, 512 (1992); Public Util. 22 Case: 11-70776 06/04/2011 Page: 33 of 124 ID: 7774252 DktEntry: 20
Dist. No. 1 v. Federal Emergency Mgmt. Agency, 371 F.3d 701, 706 (9th Cir.
2004).
STANDING ―Any interested person‖ may seek review of an EPA decision to issue or deny any permit issued pursuant to section 402 of the Act, 33 U.S.C. § 1342. See
33 U.S.C. §§ 1369(b)(1)(F), 1362(5) (definition of ―person‖). ―Any interested person‖ means any person that satisfies the injury-in-fact requirement for Article
III standing. See Natural Resources Defense Council, Inc. v. EPA, 966 F.2d 1292,
1297 (9th Cir. 1992). To establish Article III standing, Petitioners must demonstrate (1) an ―injury in fact,‖ (2) that is fairly traceable to EPA‘s illegal conduct, and (3) is likely to be redressed by a favorable decision. Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81 (2000)
(―Laidlaw‖).
Here, Petitioners satisfy Article III‘s standing requirements to challenge the
EAB‘s Order Denying Review of their NPDES permit appeal. Petitioners Native
Village of Kivalina IRA Council and Native Village of Point Hope IRA Council
(collectively ―Native Villages‖) have standing to protect their interests in drinking water and subsistence fishing. Petitioners Alaska Community Action on Toxics and the Northern Alaska Environmental Center (collectively ―Conservation
Groups‖) have organizational standing due to perceived and actual impacts to
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water quality that affects their organizational interests. Moreover, all Petitioners suffer informational and procedural injuries that also establish standing.
A. The Native Villages Suffer Injury to their Interest in Clean Water and Subsistence Fishing. The Native Villages have suffered and continue to suffer injuries to their interest in clean drinking water and subsistence fishing. The Native Village of
Kivalina obtains its drinking water directly from the Wulik River. Decl. of Millie
Hawley ¶ 6, attached as Exhibit 1. Kivalina residents either use Wulik River water, which is stored in a large above-ground tank, or haul their own drinking water from the Kivalina River because they prefer to consume water not affected by the Red Dog Mine. Hawley Decl. ¶ 7. Additionally, some residents use reverse osmosis filtration systems to treat water from the Wulik River before they consume it. However, many residents find these systems too difficult to maintain and operate, and waste too much water and therefore, choose not to use them. Hawley
Decl. ¶ 8.
Furthermore, the Native Villages‘ residents use the Wulik River for subsistence fishing. Hawley Decl. ¶ 11; Decl. of Caroline Cannon ¶¶ 6-7, attached as Exhibit 1. The Native Villages‘ right to use the Wulik River and the nearby area for subsistence activities is allowed by Alaska law, section 811 of the Alaska
National Interest Lands Conservation Act, 16 U.S.C. § 3121, and by NANA, which
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allows its shareholders to hunt and fish on NANA land without a permit. ER
2:278-279.
In particular, the Native Villages rely heavily on the Arctic grayling, Dolly
Varden, white fish, and salmon that spawn, rear and migrate in and through Red
Dog Creek, Ikalukrok Creek and the Wulik River as important sources of food.
Hawley Decl. ¶ 11; Cannon Decl. ¶ 7; ER 2:259-262. The Native Village of
Kivalina IRA Council, Native Village of Point Hope IRA Council and many
Kivalina and Point Hope residents are concerned about the quality of drinking water, the health of Wulik River fish, especially Dolly Varden, and the health effects of consuming water and fish from the Wulik River. Hawley Decl. ¶¶ 9-10,
12; Cannon Decl. ¶¶ 8-9. Consuming Dolly Varden in particular presents a health concern because of elevated cadmium, lead, selenium, and zinc concentrations found in juvenile Dolly Varden. ER 2:261-262. A 2005 study by Ott and Morris as part of the 1998 Permit‘s biomonitoring requirements demonstrated that levels of copper in Dolly Varden liver tissue6 were consistently higher than baseline levels. ER 2:273. Ott and Morris also found lead in Dolly Varden gill tissue at levels higher than the baseline. ER 2:274.7
6 Fish livers are traditionally consumed. Hawley Decl. ¶ 11. Dolly Varden is a delicacy. Cannon Decl. ¶ 7. 7 No data on metal contamination of fish other than Dolly Varden are available, because the 1998 Permit only required sampling of Dolly Varden. ER 2:176. 25 Case: 11-70776 06/04/2011 Page: 36 of 124 ID: 7774252 DktEntry: 20
These perceived and actual injuries to water quality and subsistence fishing are sufficiently concrete to give the Native Villages standing. See Pitt River Tribe v. U.S. Forest Service, 469 F.3d 768, 779 (9th Cir. 2006) (cultural and religious use of an area threatened by geothermal development sufficient injury-in-fact to Pit
River Tribe).
B. The Conservation Groups Suffer Injury to their Organizational Interests. Petitioner Conservation Groups have organizational standing to challenge
EPA‘s action. As the Ninth Circuit has explained:
It is well established that an organization ‗may have standing in its own right to seek judicial relief from injury to itself and to vindicate whatever rights and immunities the association itself may enjoy.‘ The question is simply whether the organization satisfies the usual requirements for standing.
Am. Fed’n of Gov’t Emloyees Local 1 v. Stone, 502 F.3d 1027, 1032 (9th Cir.
2007), quoting Warth v. Seldin, 422 U.S. 490, 511(1975). To show injury in fact, the organization must show that the challenged action has frustrated or will frustrate the organization‘s purpose, requiring it to divert resources from its usual activities to counter the effects of the defendant‘s action. Smith v. Pacific
Properties and Dev. Corp., 358 F.3d 1097, 1105 (9th Cir. 2004), citing Fair
Housing of Marin v. Combs, 285 F.3d 899, 902 (9th Cir. 2002). A ―concrete and demonstrable injury to [an] organization‘s activities — with the consequent drain on the organization‘s resources — constitutes far more than simply a setback to the
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organization‘s abstract social interests.‖ Havens Realty Corp. v. Coleman, 455 U.S.
363, 379 (1982). Cf., Sierra Club v. Morton, 405 U.S. 727, 738-740 (1972)
(holding that an organization‘s general interest in an issue is insufficient to confer standing).
Here, the Conservation Groups have suffered injury-in-fact. The goal of protecting clean water by limiting industrial discharge is integral to the
Conservation Groups‘ missions. Decl. of Pamela Miller ¶¶ 4, 6; Decl. of Karen
Max Kelly ¶ 6, attached as Exhibit 1. The Conservation Groups are concerned about the discharge of mining waste into Red Dog Creek and the impacts of that discharge on Red Dog Creek, Ikaklurok Creek, and the Wulik River ecosystems, fish health, and fish propagation. Miller Decl. ¶¶ 11, 13; Kelly Decl. ¶ 9-10. The
EPA‘s reissuance of the 2010 Permit and decision to eliminate many of the monitoring requirements from the permit frustrates the Conservation Groups‘ purposes by making citizen oversight and advocacy more difficult. Miller Decl. ¶
13; Kelly Decl. ¶¶ 12-13. As a result of the EPA‘s actions on this permit, the
Conservation Groups have diverted their scarce resources from other programs and projects to address the 2010 Permit, engaging in education of staff, the Boards of
Directors, and the public about the permit provisions and the impacts of the discharge to the health of Red Dog Creek, Ikulakrok Creek and the Wulik River ecosystems and the fish species that spawn, rear, and migrate through those water 27 Case: 11-70776 06/04/2011 Page: 38 of 124 ID: 7774252 DktEntry: 20
bodies. Miller Decl. ¶ 14; Kelly Decl. ¶ 14. The impacts of the EPA‘s action to the Conservation Groups‘ purposes, and the resulting redirection of scarce resources to combat the EPA‘s action, sufficiently demonstrates injury-in-fact.
C. Reduced Monitoring and Reporting in the 2010 Permit Inflicts Informational Injury. In addition to the injuries to the Native Villages‘ interests and to the
Conservation Groups‘ organizational interests, EPA‘s decision to eliminate, or make unenforceable, a host of monitoring provisions formerly in the 1998 Permit inflicts an informational injury that is also sufficient to establish standing. As the
Ninth Circuit has explained, ―To ground a claim to standing on an informational injury, the [statute] must grant a right to information capable of supporting a lawsuit.‖ Wilderness Society, Inc. v. Rey, 622 F.3d 1251, 1258-1259 (9th Cir.
2010), citing Cass R. Sunstein, Informational Regulation and Informational
Standing: Akins and Beyond, 147 U. PA. L. Rev. 613, 642-43 (1999). The Clean
Water Act does just that. See 33 U.S.C. §§ 1342(a)(2) (monitoring and reporting required in NPDES permits), 1365(a)(1) (authorizing citizen suits for violations of an effluent standard or limitation); 1365(f) (defining effluent standard or limitation to include any condition in an NPDES permit).
The 2010 Permit eliminated monitoring of hardenss and silver at Outfall
001, eliminated ambient monitoring of cyanide, eliminated monitoring of water
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quality upstream of the Red Dog Mine, reduced the frequency of ambient monitoring reports from monthly to annually, and removed many biomonitoring provisions, including monitoring of metal contamination of Dolly Varden. See
Statement of Facts at 18-20, supra.
The changes to the 2010 Permit‘s monitoring provisions deprive Kivalina of information on which a person could have based a lawsuit, thus constituting informational injury. The transfer of bioassessment monitoring to a non-Clean
Water Act permit significantly interferes with enforcement of such monitoring requirements because Kivalina and others cannot enforce a state solid waste permit in a Clean Water Act citizen suit. See 33 U.S.C. §§ 1365(a)(1) (citizen suits allowed to enforce effluent standard or limitation); 1365(f) (the term effluent standard or limitation does not include an Alaska solid waste permit).
The elimination of hardness and silver end-of-pipe monitoring, upstream monitoring, reduction in the frequency of issuing ambient monitoring reports, and elimination of ambient cyanide monitoring deprives the Native Villages and
Conservation Groups with information capable of enforcing the Clean Water Act via a citizen suit. The absence of upstream monitoring precludes a comparison with downstream monitoring necessary to demonstrate an unpermitted discharge.
Elimination of cyanide monitoring precludes comparison between the effluent limitation in the permit and the cyanide concentration discharged to determine 29 Case: 11-70776 06/04/2011 Page: 40 of 124 ID: 7774252 DktEntry: 20
permit violations. Annual reporting of ambient concentrations further restricts the ability of the Native Villages and Conservation Groups to take immediate action to enforce violations.
The Native Villages and Conservation Groups want robust water quality and biological monitoring so they can enforce the Clean Water Act, ensure that residents are not exposed to unhealthy fish they eat or water they drink, and to achieve their organizational purposes. Hawley Decl. ¶ 13; Cannon Decl. ¶¶ 9-10;
Miller Decl. ¶¶ 4, 7, 11, 13; Kelly Decl. ¶¶ 4, 6-7, 12-13. Such deprivation of information sufficiently establishes a cognizable injury.
D. The Native Villages and Conservation Groups Suffer Procedural Injury. Furthermore, the EAB‘s action to arbitrarily and capriciously dismiss the administrative appeal deprived the Native Villages and the Conservation Groups of the procedural right to have their administrative appeal considered and resolved on the merits. See 40 C.F.R. § 124.19(a) (―any person who filed comments on that draft permit or participated in the public hearing may petition the Environmental
Appeals Board to review any condition of the permit decision‖).
This denial of a procedural right, combined with the injury to the Native
Villages and Conservation Groups‘ interests in protecting the water quality in
Wulik River tributaries and subsistence fishing rights, provides an independent
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injury-in-fact. See Summers v. Earth Island Institute, 555 U.S. 488, 129 S. Ct.
1142, 1151 (2009); Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n.7 (1992).
E. The Injuries to the Native Villages and Conservation Groups are Caused by the 2010 Permit and the EAB Order Denying Review. The Native Villages‘ and Conservation Groups‘ physical, aesthetic, organizational, and informational injuries are traceable to EPA‘s conduct and the
EAB‘s Order Denying Review. EPA issued the permit and allowed Teck to continue to operate and expand the Red Dog Mine in a manner that discharges mine waste into Red Dog Creek, which flows into the Wulik River. The 2010
Permit also significantly curtails the amount of monitoring and frequency of reporting. Yet, instead of deciding the administrative appeal on the merits, the
EAB improperly denied Kivalina‘s appeal on procedural grounds. Accordingly,
EPA and EAB‘s conduct caused the injuries, including informational and procedural injuries, to Kivalina.
F. A Favorable Decision by this Court will Redress the Injuries. A favorable decision by this Court will redress the Native Villages‘ and
Conservation Groups‘ injuries. With respect to the procedural injury, the Native
Villages and Conservation Groups have standing if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant. Massachusetts v. EPA, 549 U.S. 497, 518
(2007). An order vacating EAB‘s Order Denying Review and a remand to EPA 31 Case: 11-70776 06/04/2011 Page: 42 of 124 ID: 7774252 DktEntry: 20
will allow the administrative appeal to be resolved on the merits, thus redressing the injuries, including the procedural injury.
Because Kivalina has demonstrated that EPA and EAB‘s conduct has injured Kivalina and that an order from this Court will remedy those injuries,
Kivalina has standing.
ARGUMENT
I. THE ORDER DENYING REVIEW OF THE MONITORING ISSUES IN THE ADMINISTRATIVE APPEAL WAS ARBITRARY, CAPRICIOUS, AND AN ABUSE OF DISCRETION.
A. An Administrative Appeal Must Identify the Permit Conditions at Issue and Explain why EPA’s Responses to Comments were Clearly Erroneous and Warranted Review.
EPA‘s regulations implementing the Clean Water Act provide for an administrative appeal process before the EAB. Any ―person who filed comments on that draft permit or participated in the public hearing may petition the
Environmental Appeals Board to review any condition of the permit decision.‖ 40
C.F.R. § 124.19(a). In any administrative appeal
The petition shall include a statement of the reasons supporting that review, including a demonstration that any issues being raised were raised during the public comment period (including any public hearing) to the extent required by these regulations and when appropriate, a showing that the condition in question is based on:
(1) A finding of fact or conclusion of law which is clearly erroneous, or
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(2) An exercise of discretion or an important policy consideration which the Environmental Appeals Board should, in its discretion, review.
40 C.F.R. § 124.19(a). The EAB has interpreted this language to mandate ―two things: (1) clear identification of the conditions in the permit at issue, and (2) argument that the conditions warrant review.‖ ER 1:15 (citations omitted).
The EAB has further interpreted 40 C.F.R. § 124.19(a) to require that ―it is not enough to simply rely on previous statements of its objections, such as comments on a draft permit; a petitioner must demonstrate why the [r]egion‘s response to those objections (the region‘s basis for its decision) is clearly erroneous or otherwise warrants review.‖ ER 1:15 (citations omitted).
B. Kivalina Complied with the EAB’s Procedural Requirements.
Kivalina‘s administrative appeal identified both the monitoring conditions at issue and why EPA‘s responses to comments warranted review. Under the section heading ―Nature of the Case and Facts Relevant to the Issues Presented for
Review,‖ ER 2:65, Kivalina described the relevant 1998 Permit monitoring provisions, with citations to the permit itself:
The end-of-the-pipe effluent limits for Outfall 001 (Middle Fork Red Dog Creek) in the 1998 Permit germane to this appeal are as follows: (1) Lead – 19.6 µg/L daily maximum (MDEL) and 8.1 µg/L monthly average (AMEL); (2) Total Dissolved Solids (TDS) – 196 mg/L MDEL and 170 mg/L AMEL; (3) Zinc – 257.3 µg/L MDEL and 119.6 µg/L AMEL; (4) Cyanide (total) – 9.0 µg/L MDEL and 4.0 µg/L AMEL; and (5) pH in a 33 Case: 11-70776 06/04/2011 Page: 44 of 124 ID: 7774252 DktEntry: 20
range of 6.0-10.5 standard units. For each of these limits, the permit required weekly sampling by Teck.
In addition, the permit specifically prohibited the discharge of ―any water not specifically authorized in this permit.‖ The permit directed Teck to collect samples at seven ambient monitoring stations: Station 140, Middle Fork Red Dog Creek upstream of Outfall 001; Station 20, Middle Fork Red Dog Creek upstream of confluence with North Fork Red Dog Creek; Station 12, North Fork Red Dog Creek; Station 10, Mouth of Red Dog Creek; Station 9, Ikalukrok Creek upstream of confluence with Red Dog Creek; Station 73, Ikalukrok Creek downstream of confluence with Red Dog Creek; and Station 2, Wulik River. The permit required Teck to conduct sampling at any time there is flowing water.
ER 2:66 (emphasis added) (footnotes omitted). Kivalina also described the changed monitoring conditions in the 2010 Permit, again with citations to that permit and the Fact Sheet:
When the EPA issued the 2010 NPDES Permit, it relaxed several of the effluent limits, namely zinc (269.2 µg/L MDEL and 155.9 µg/L AMEL), and lead (8.5 µg/L) at Outfall 001. The permit also eliminated monitoring for hardness at Outfall 001 and now allows Teck to “calculate” hardness since the monitoring for cations and anions apparently makes this possible. The permit deletes monitoring for silver at Outfall 001 based on calculations using monitoring data from “the current permit cycle” that showed no reasonable potential to cause or contribute to the exceedance of water quality criteria.
EPA also discontinued monitoring for total cyanide and replaced that monitoring with monitoring for weak acid dissociable (“WAD”) cyanide, which reports all forms of cyanide except cyanide bound to iron. The cyanide effluent limit was also changed to WAD cyanide, and established at 22.2. µg/L MDEL and 10.3 µg/L AMEL at Outfall 001. The Permit, however, also authorizes a 1,930-foot mixing zone for cyanide that begins 7,000 feet downstream from Outfall 001 34 Case: 11-70776 06/04/2011 Page: 45 of 124 ID: 7774252 DktEntry: 20
despite the mixing that occurs in the first 7,000 feet after discharge. Additionally, EPA eliminated ambient monitoring for cyanide entirely at stations 2, 10, 20, and 150. EPA discarded all future data of upstream water quality by eliminating all ambient monitoring of tributary streams upstream of the mine. EPA modified the permit to require the reporting of ambient monitoring to occur on an annual basis, rather than a monthly basis.
. . . .
At the request of the Alaska Department of Environmental Conservation (“ADEC”), EPA excluded from the 2010 Permit bioassessment monitoring for (1) periphyton (as chlorophyll-a concentrations) aquatic invertebrates: taxonomic richness and abundance on Middle Fork Red Dog Creek; (2) fall aerial surveys of returning chum salmon on Ikalukrok Creek; (3) metals concentrations in Dolly Varden gill, liver, muscle, and kidney, and aerial survey of overwintering Dolly Varden on the Wulik River; (4) fish presence and use on Anxiety Ridge Creek; (5) fish presence and use on Evaingiknuk Creek; and (6) fish presence and use on Buddy Creek from the 2010 Permit, and apparently ADEC will include these requirements in a state solid waste permit. EPA retained the bioassessment monitoring for the North Fork Red Dog Creek, Main Stem Red Dog Creek, and Ikalukrok Creek.
ER 2:67-69 (emphasis added) (footnotes omitted).
Under the heading, ―EPA‘s Issuance of the Permit‘s Monitoring Conditions
Constitutes an Abuse of Discretion,‖ Kivalina directed the EAB to the portions of the record where Kivalina ―commented in opposition to EPA‘s deletion of effluent monitoring and biological monitoring.‖ ER 2:70. Kivalina summarized EPA‘s responses to those comments and, in a footnote, directed the EAB to the pages in the record where EPA responded to Kivalina‘s comments:
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EPA responded to comments concerning reduced monitoring by claiming that (1) the only monitoring necessary is that which ensures compliance with the Permit‘s effluent limitations; (2) bioassessment monitoring is consistent with the ADEC 401 Certification and it is appropriate to defer to ADEC; and (3) EPA has no authority to require third-party monitoring and the Act permits self-monitoring.
ER 2:70 and n.188.
Kivalina then proceeded to state why EPA‘s responses to the comments were deficient and warranted review. ER 2:70-72. Specifically, Kivalina argued that under section 308(a)(4)(A) of the Act, 33 U.S.C. § 1318(a)(4)(A), EPA had authority to require monitoring for pollutants beyond the permit‘s effluent limitations, both upstream and downstream, and that EPA had required such monitoring historically. ER 2:70-71. With respect to biomonitoring, Kivalina argued that under section 303 of the Clean Water Act, 33 U.S.C. § 1313, EPA had authority to ensure that Red Dog Mine complied with water quality standards, and
EPA made biomonitoring unenforceable by excluding such monitoring from the
2010 Permit. ER 2:71. With respect to third-party monitoring, Kivalina argued that while EPA was correct to respond that it had no authority to compel a third- party to conduct monitoring, EPA did have authority under section 308(a)(4)(A) of the Act, 33 U.S.C. § 1318(a)(4)(A), to compel Teck to retain an independent third- party to conduct such monitoring. ER 2:71.
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With respect to all three monitoring issues – EPA authority to require broad monitoring downstream and upstream of the mine, the lack of enforceable biomonitoring conditions, and authority to require Teck to retain a third-party monitor – Kivalina argued that Teck‘s history of Clean Water Act noncompliance warranted review of the 2010 Permit‘s monitoring changes. ER 2:71-72. Of principal importance was the EPA administrative enforcement action concerning monitoring violations where Teck deliberately diluted the effluent at Outfall 001 with fresh water diverted from Bons Creek. ER 2:72 and n.195 (cites to Exhibit 9),
ER 1:2 (Filing #2.9, Exhibit 9 to Petition for Review); see also ER 2:215-216
(Consent Agreement and Final Order). Kivalina concluded its argument by stating that ―EPA‘s failure to consider Teck‘s grossly inadequate compliance history when deciding to continue allowing self-monitoring, reduce ambient monitoring, and make most biomonitoring unenforceable amounts to an abuse of discretion.‖
ER 2:72.
C. The Environmental Appeals Board Ignored Kivalina’s Compliance with 40 C.F.R. § 124.19(a).
The EAB‘s Order Denying Review was arbitrary, capricious, and an abuse of discretion because the EAB failed to recognize the fact that Kivalina set forth both the relevant conditions of the 2010 Permit and a detailed argument for why
EPA‘s responses to Kivalina‘s comments warranted review.
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Specifically, the EAB stated that Kivalina ―failed to identify any specific monitoring provisions in their Petition.‖ ER 2:17 n.5. The EAB overlooked the administrative appeal‘s discussion of such monitoring conditions at ER 2:66-69.
With respect to reduced monitoring and reporting in the 2010 Permit, the
EAB quoted EPA‘s responses to comments delineating the view that the ―Final
Permit includes all of the effluent and ambient monitoring necessary to determine compliance with permit limits.‖ ER 1:17, quoting ER 2:251. However, Kivalina argued that EPA had the authority to mandate monitoring beyond the terms of the permit, and that historically EPA had done so. ER 2:71. The EAB did not consider the historical monitoring required in earlier permits or Teck‘s conduct to intentionally dilute the effluent at Outfall 001 with fresh water from Bons Creek,
ER 71-72, in its Order Denying Review. ER 1:17-18. Thus, the Order Denying
Review is arbitrary, capricious, and an abuse of discretion.
For the removal of biomonitoring provisions from the 2010 Permit, the EAB quoted EPA‘s response to comments that stated that the biomonitoring conditions from the 1998 Permit were required to ensure compliance with Water Quality
Standards and protection of designated uses, ER 1:19 quoting 2:245-246, and that
EPA thought it appropriate to follow the State‘s recommendation in its 401 certification to exclude biomonitoring from the 2010 Permit. ER 1:10 quoting ER
2:250. Kivalina argued that EPA had authority to require compliance with Water 38 Case: 11-70776 06/04/2011 Page: 49 of 124 ID: 7774252 DktEntry: 20
Quality Standards. ER 2:71, citing 33 U.S.C. §§ 1318(a)(4)(A), 1342(a)(1).
Kivalina also argued that EPA‘s response to comments admitted that excluding biomonitoring from the 2010 Permit made the monitoring unenforceable. ER 2:71, citing 246, 250. The EAB concluded that ―Petitioners provide no explanation why the Region‘s response to comments regarding the bioassessment monitoring in the
Final Permit is irrelevant, erroneous, insufficient, or constituted an abuse of discretion.‖ ER 1:20. However, the EAB completely ignored Kivalina‘s argument regarding EPA‘s authority to enforce water quality standards, the agency‘s own concession that biomonitoring in a state permit was not federally enforceable, and
Teck‘s history of violations and manipulation of monitoring data. See ER 2:71-72.
Accordingly, the Order Denying Review is arbitrary, capricious, and an abuse of discretion.
Finally, regarding third-party monitoring, the EAB quoted EPA‘s response to comments that stated EPA had no authority to require other agencies or independent parties to conduct monitoring, that Teck must certify the validity of
Teck‘s own sampling, and that EPA and the State conduct site inspections. ER
2:18-19, quoting ER 2:252. The EAB stated, ―Petitioners have not attempted to address the Region‘s response to comment in any meaningful way‖ and made ―no attempt to explain how the Region‘s adherence to the CWA‘s self-monitoring provisions, and its reliance on certification requirements and periodic EPA and 39 Case: 11-70776 06/04/2011 Page: 50 of 124 ID: 7774252 DktEntry: 20
State inspections to conclude that self-monitoring is appropriate in this case (even after taking into account a history on noncompliance) constituted an abuse of that discretion.‖ ER 1:19.
The EAB failed to acknowledge that Kivalina argued that the response to comments failed to account for EPA‘s authority to require monitoring ―as he may reasonably require,‖ ER 2:71, quoting section 308(a)(4)(A) of the Act, 33 U.S.C. §
1318(a)(4)(A), and that nothing in that section prohibits EPA from requiring Teck to pay for a third-party monitor. While the EAB stated EPA took ―into account a history of noncompliance,‖ ER 1:19, EPA‘s response to comments on this issue utterly failed to acknowledge or even consider Teck‘s long history of noncompliance or even Teck‘s intentional dilution of effluent at Outfall 001 with fresh water from Bons Creek over a three-year period. ER 2:252. Accordingly, the Order Denying Review is arbitrary, capricious, and an abuse of discretion.
D. Kivalina’s Compliance with 40 C.F.R. § 124.19(a) Contrasts Starkly with Appropriately Dismissed Appeals.
The Ninth Circuit Court of Appeals has not confronted the particular issue presented by this Petition for Review. However, recent First and Sixth Circuit decisions further illustrate the EAB‘s abuse of discretion. In Michigan Department of Environmental Quality v. U.S. Environmental Protection Agency, the Sixth
Circuit upheld the EAB‘s denial of review when the Michigan Department of
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Environmental Quality did not identify its objections with sufficient clarity and specificity. 318 F.3d 705, 707 (6th Cir. 2003). Michigan‘s administrative appeal consisted of a four-and-a-half page document, in which Michigan argued that
EPA‘s decision to issue an NPDES permit was unauthorized by simply referring to the final permit, Michigan‘s comments, and EPA‘s response to comments. Id. at
708. The EAB denied review based on its interpretation of 40 C.F.R. §124.19(a) that prohibits a petition from restating or referring to its original comments without stating why EPA‘s responses to comments are inadequate. Id. The Sixth Circuit affirmed the EAB order.
We hold that the Board‘s interpretation and application of [40 C.F.R.] § 124.19(a) in this case was not an abuse of discretion. Instead of explaining to the Board why the Region‘s detailed responses to its comments were clearly erroneous, Michigan simply repackaged its comments and the EPA‘s response as unmediated appendices to its petition to the Board. This does not satisfy the burden of showing entitlement to review.
Michigan, 318 F.3d at 708.
In City of Pittsfield v. U.S. Environmental Protection Agency, the First
Circuit upheld the EAB‘s denial of review when EPA found that Pittsfield had procedurally defaulted because its petition failed to identify its specific objections to the permit or to articulate why the Board should assume jurisdiction. 614 F.3d
7, 8 (1st Cir. 2010). Pittsfield‘ petition to the EAB consisted of a one-page letter and a copy of its comments. Id. at 10. The First Circuit held that Pittsfield ―made 41 Case: 11-70776 06/04/2011 Page: 52 of 124 ID: 7774252 DktEntry: 20
no effort in its petition to the Board to engage the EPA‘s initial response to its draft comments‖ and ―did not explain why it disagreed with either the EPA‘s calculations of those [permit] limits or the data on which the EPA relied in reaching them.‖ Id. at 13.
Kivalina‘s administrative appeal starkly contrasts with the appeals in
Michigan and Pittsfield. While the petitioners in those cases made no effort to comply with 40 C.F.R. § 124.19(a), Kivalina carefully set forth the relevant permit conditions, ER 2:66-69, and as described above, articulated why EPA‘s response to comments was in error and warranted review. This Court should thus hold that
Kivalina met its threshold procedural burden and that the EAB‘s Order Denying
Review was therefore arbitrary, capricious, and an abuse of discretion.
CONCLUSION AND RELIEF REQUESTED For the reasons stated above, the EAB Order Denying Review was arbitrary, capricious, and an abuse of discretion. The Court should vacate the Order and remand the matter for the EAB to consider Kivalina‘s administrative appeal on the merits. Kivalina also requests that the Court award Kivalina costs of litigation, including reasonable attorneys‘ fees, pursuant to section 509(b)(3) of the Act, 33
U.S.C. § 1369(b)(3).
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Dated: June 3, 2011 Respectfully submitted,
s/ Brent Newell Brent Newell Attorney for Petitioner Native Village of Kivalina IRA Council
s/ Brook Brisson Brook Brisson Victoria Clark TRUSTEES FOR ALASKA Attorneys for Petitioner Native Village of Point Hope IRA Council Alaska Community Action on Toxics, and Northern Alaska Environmental Center
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CERTIFICATE OF COMPLIANCE WITH WORD LIMIT Pursuant to Circuit Rule 32-1, I hereby certify that this brief complies with the word limitations set forth in FRAP 32(a)(7)(B) and Circuit Rule 28-4. This brief is proportionally spaced, has a typeface of 14 points and contains 10,900 words.
DATED: June 3, 2011
s/ Brent Newell BRENT NEWELL
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STATEMENT OF RELATED CASES Petitioners are unaware of any related cases pending in this Court.
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CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of the
Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on June 3, 2011.
I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.
I certify under penalty of perjury that the foregoing is true and correct.
Executed on June 3, 2011 in San Francisco, California.
s/ Brent Newell BRENT NEWELL
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EXHIBIT 1 Case: 11-70776 06/04/2011 Page: 58 of 124 ID: 7774252 DktEntry: 20 Case: 11-70776 06/04/2011 Page: 59 of 124 ID: 7774252 DktEntry: 20 Case: 11-70776 06/04/2011 Page: 60 of 124 ID: 7774252 DktEntry: 20 Case: 11-70776 06/04/2011 Page: 61 of 124 ID: 7774252 DktEntry: 20 Case: 11-70776 06/04/2011 Page: 62 of 124 ID: 7774252 DktEntry: 20 Case: 11-70776 06/04/2011 Page: 63 of 124 ID: 7774252 DktEntry: 20 Case: 11-70776 06/04/2011 Page: 64 of 124 ID: 7774252 DktEntry: 20
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATIVE VILLAGE OF POINT HOPE IRA COUNCIL, NATIVE VILLAGE OF POINT No. 11-70776
HOPE IRA COUNCIL, ALASKA COMMUNITY ACTION ON TOXICS, and NORTHERN ALASKA DECLARATION OF ENVIRONMENTAL CENTER, PAMELA MILLER
Petitioners,
vs.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; LISA JACKSON, in her official capacity as Administrator of the U.S. Environmental Protection Agency; and DENNIS MCCLARREN, in his official capacity as Regional Administrator for Region X of the U.S. Environmental Protection Agency,
Respondents, and
TECK ALASKA, INCORPORATED and NANA REGIONAL CORPORATION,
Intervenors.
I, Pamela Miller, declare as follows:
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1. I am over 18 years of age and not a party to this action. 2. I moved to Alaska in 1989 and currently reside in Anchorage. My background is as a biologist and I helped found Alaska Community Action on Toxics (“ACAT”) in 1997. 3. I am both the Executive Director and a member of ACAT, and have been since ACAT was founded. 4. ACAT is an Alaska non-profit corporation that believes that everyone has right to clean air, clean water and toxic-free food; the organizational purpose is to assure justice by advocating for environmental and community health and working to protect Alaskans and Alaska Natives’ rights to clean air, clean water and a toxic-free environment. 5. ACAT is a membership organization. The by-laws provide for a 14 member Board of Directors; there are currently 10. ACAT members nominate and elect the Board of Directors and officers at the annual meeting. 6. ACAT serves communities that are concerned about environmental health issues due to contamination from industrial sources and works to protect clean water, wildlife habitat and human health by limiting discharges of harmful substances from industrial sources. 7. ACAT seeks robust water quality and biological monitoring at the Red Dog Mine. That monitoring helps to ensure that water quality standards are met and are enforceable under the Clean Water Act by EPA or citizen suit in federal court, if necessary. 8. I have traveled to Kivalina and Point Hope three times in 2008 and 2009 at the invitation of the Native Villages’ Tribal Councils and I will return to the villages to continue to work with the Tribal Councils, as needed and requested. 9. My trips to Kivalina and Point Hope involved a project initiated at the
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request of the Tribal Councils for technical assistance to study the exposures of tribal members to lead and other heavy metals emitted from the Red Dog Mine through various processes, including wastewater discharge. 10. ACAT has worked for the past ten years to try to limit discharges from the Red Dog Mine and protect water quality, wildlife habitat and human health in the area around the Mine. ACAT has prepared comments on permit applications, worked on fugitive dust issues (which are indirectly related to the goal of protecting water quality) and produced a report synthesizing information about heavy metal threats in the region. 11. Red Dog Creek and the Wulik River are important waterbodies for fish and for humans — Arctic grayling, Dolly Varden and salmon that are consumed by Alaska Natives live in Red Dog Creek and the Wulik River, and the Village of Kivalina gets its drinking water from the Wulik River. 12. ACAT has an organizational interest in making sure that federal and state laws are followed to protect clean water and human health and in limiting the discharge of pollutants into Alaska’s waters. 13. Under the current permit, the Red Dog Mine is allowed to release harmful levels of heavy metals and total dissolved solids in its discharged wastewater that are detrimental to the ecosystem, fish habitat and human health, thereby frustrating ACAT’s mission. Also, the current monitoring program at the Red Dog Mine is insufficient and there has not been enough independent monitoring and oversight of wastewater discharge operations. 14. As a result of the high effluent limits in the permit and the weakening of the monitoring provisions, ACAT has diverted our limited resources (and will continue to divert resources) that it would have spent on other advocacy projects and organizational goals educating the public about the legal shortcomings of the permit and the impacts of lowering water quality on the
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Red Dog Creek and Wulik River watershed and human health. 15. I am serving as a declarant in this proceeding to support ACAT’s efforts to enforce the laws that protect water quality and public health.
I declare under penalty of perjury that the foregoing is true and correct to the best of my personal knowledge. Executed on this second day of June, 2011 at Anchorage, Alaska.
___ Pamela Miller
______
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ADDENDUM
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INDEX OF ADDENDUM
Document Page Number
FEDERAL STATUTE
5 U.S.C. § 706(2)(A) ...... 1
16 U.S.C. § 3121 ...... 2
33 U.S.C. § 1251(a) ...... 3
33 U.S.C. § 1311(a) ...... 5
33 U.S.C. §1313 ...... 15
33 U.S.C. § 1313(a)(A) ...... 15
33 U.S.C. § 1318(a)(4)(A) ...... 20
33 U.S.C. § 1342 ...... 22
33 U.S.C. § 1342(a)(1) ...... 22
33 U.S.C. § 1342(a)(2) ...... 22
33 U.S.C. § 1342(o) ...... 26
33 U.S.C. § 1362(5) ...... 30
33 U.S.C. § 1365(a) ...... 33
33 U.S.C. § 1365(a)(1) ...... 33
33 U.S.C. § 1365(f) ...... 34
33 U.S.C. § 1365(f)(6) ...... 34
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33 U.S.C. § 1369(b)(1)...... 35
33 U.S.C. § 1369(b)(1)(F) ...... 36
33 U.S.C. § 1369(b)(3)...... 36
43 U.S.C. § 1606 ...... 37
FEDERAL REGULATIONS
40 C.F.R. § 124.19(a) ...... 46
40 C.F.R. § 124.19(d) ...... 47
FEDERAL REGISTER NOTICES
73 Fed Reg. 66243 (Nov. 7, 2008) ...... 48
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UNITED STATES CODE SERVICE Copyright © 2011 Matthew Bender & Company,Inc. a member of the LexisNexis Group (TM) All rights reserved.
*** CURRENT THROUGH PL 112-13, APPROVED 5/12/2011 ***
TITLE 5. GOVERNMENT ORGANIZATION AND EMPLOYEES PART I. THE AGENCIES GENERALLY CHAPTER 7. JUDICIAL REVIEW
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5 USCS § 706
THE CASE NOTES SEGMENT OF THIS DOCUMENT HAS BEEN SPLIT INTO 2 DOCUMENTS. THIS IS PART 1. USE THE BROWSE FEATURE TO REVIEW THE OTHER PART(S).
§ 706. Scope of review
To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall-- (1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action, findings, and conclusions found to be-- (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law; (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title [5 USCS §§ 556 and 557] or otherwise reviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.
In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.
HISTORY: (Sept. 6, 1966, P.L. 89-554, § 1, 80 Stat. 393.)
HISTORY; ANCILLARY LAWS AND DIRECTIVES
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*** CURRENT THROUGH PL 112-13, APPROVED 5/12/2011 ***
TITLE 16. CONSERVATION CHAPTER 51. ALASKA NATIONAL INTEREST LANDS CONSERVATION SUBSISTENCE MANAGEMENT AND USE
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16 USCS § 3121
§ 3121. Rural residents engaged in subsistence uses
(a) Access to subsistence resources. The Secretary shall ensure that rural residents engaged in subsistence uses shall have reasonable access to subsistence resources on the public lands.
(b) Use of snowmobiles, motorboats, or other means of surface transportation. Notwithstanding any other provision of this Act or other law, the Secretary shall permit on the public lands appropriate use for subsistence purposes of snowmobiles, motorboats, and other means of surface transportation traditionally employed for such purposes by local residents, subject to reasonable regulation.
HISTORY: (Dec. 2, 1980, P.L. 96-487, Title VIII, § 811, 94 Stat. 2428.)
HISTORY; ANCILLARY LAWS AND DIRECTIVES
References in text: "This Act", referred to in this section, is Act Dec. 2, 1980, P.L. 96-487, 94 Stat. 2371, which appears generally as 16 USCS §§ 3101 et seq. For full classification of this Act, consult USCS Tables volumes.
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*** CURRENT THROUGH PL 112-13, APPROVED 5/12/2011 ***
TITLE 33. NAVIGATION AND NAVIGABLE WATERS CHAPTER 26. WATER POLLUTION PREVENTION AND CONTROL RESEARCH AND RELATED PROGRAMS
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33 USCS § 1251
§ 1251. Congressional declaration of goals and policy
(a) Restoration and maintenance of chemical, physical and biological integrity of Nation's waters; national goals for achievement of objective. The objective of this Act [33 USCS §§ 1251 et seq.] is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters. In order to achieve this objective it is hereby declared that, consistent with the provisions of this Act [33 USCS §§ 1251 et seq.]-- (1) it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985; (2) it is the national goal that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved by July 1, 1983; (3) it is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited; (4) it is the national policy that Federal financial assistance be provided to construct publicly owned waste treatment works; (5) it is the national policy that areawide waste treatment management planning processes be developed and implemented to assure adequate control of sources of pollutants in each State; (6) it is the national policy that a major research and demonstration effort be made to develop technology necessary to eliminate the discharge of pollutants into the navigable waters, waters of the contiguous zone, and the oceans; and (7) it is the national policy that programs for the control of nonpoint sources of pollution be developed and implemented in an expeditious manner so as to enable the goals of this Act [33 USCS §§ 1251 et seq.] to be met through the control of both point and nonpoint sources of pollution.
(b) Congressional recognition, preservation, and protection of primary responsibilities and rights of States. It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources, and to consult with the Administrator in the exercise of his authority under this Act [33 USCS §§ 1251 et seq.]. It is the policy of Congress that the States manage the construction grant program under this Act [33 USCS §§ 1251 et seq.] and implement the permit programs under sections 402 and 404 of this Act [33 USCS §§ 1342, 1344]. It is further the policy of the Congress to support and aid research relating to the prevention, reduction, and
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elimination of pollution, and to provide Federal technical services and financial aid to State and interstate agencies and municipalities in connection with the prevention, reduction, and elimination of pollution.
(c) Congressional policy toward Presidential activities with foreign countries. It is further the policy of Congress that the President, acting through the Secretary of State and such national and international organizations as he determines appropriate, shall take such action as may be necessary to insure that to the fullest extent possible all foreign countries shall take meaningful action for the prevention, reduction, and elimination of pollution in their waters and in international waters and for the achievement of goals regarding the elimination of discharge of pollutants and the improvement of water quality to at least the same extent as the United States does under its laws.
(d) Administrator of Environmental Protection Agency to administer 33 USCS §§ 1251 et seq. Except as otherwise expressly provided in this Act [33 USCS §§ 1251 et seq.], the Administrator of the Environmental Protection Agency (hereinafter in this Act called "Administrator") shall administer this Act [33 USCS §§ 1251 et seq.].
(e) Public participation in development, revision, and enforcement of any regulation, etc. Public participation in the development, revision, and enforcement of any regulation, standard, effluent limitation, plan, or program established by the Administrator or any State under this Act [33 USCS §§ 1251 et seq.] shall be provided for, encouraged, and assisted by the Administrator and the States. The Administrator, in cooperation with the States, shall develop and publish regulations specifying minimum guidelines for public participation in such processes.
(f) Procedures utilized for implementing 33 USCS §§ 1251 et seq. It is the national policy that to the maximum extent possible the procedures utilized for implementing this Act [33 USCS §§ 1251 et seq.] shall encourage the drastic minimization of paperwork and interagency decision procedures, and the best use of available manpower and funds, so as to prevent needless duplication and unnecessary delays at all levels of government.
(g) Authority of States over water. It is the policy of Congress that the authority of each State to allocate quantities of water within its jurisdiction shall not be superseded, abrogated or otherwise impaired by this Act [33 USCS §§ 1251 et seq.]. It is the further policy of Congress that nothing in this Act [33 USCS §§ 1251 et seq.] shall be construed to supersede or abrogate rights to quantities of water which have been established by any State. Federal agencies shall co-operate with State and local agencies to develop comprehensive solutions to prevent, reduce and eliminate pollution in concert with programs for managing water resources.
HISTORY: (June 30, 1948, ch 758, Title I, § 101, as added, Oct. 18, 1972, P.L. 92-500, § 2, 86 Stat. 816; Dec. 27, 1977, P.L. 95-217, §§ 5(a), 26(b), 91 Stat. 1567, 1575; Feb. 4, 1987, P.L. 100-4, Title III, § 316(b), 101 Stat. 60.)
HISTORY; ANCILLARY LAWS AND DIRECTIVES
Explanatory notes: The Federal Water Pollution Control Act, contained in this chapter, was originally enacted by Act June 30, 1948, ch 758, 62 Stat. 1155, and amended by Acts July 17, 1952, ch 927, 66 Stat. 755; July 9, 1956, ch 518, 70 Stat. 498; June 25, 1959, P.L. 86-70, 73 Stat. 141; July 12, 1960, P.L. 86-624, 74 Stat. 411; July 20, 1961, P.L. 87-88, 75 Stat. 204; Oct. 2, 1965, P.L. 89-234, 79 Stat. 903; Nov. 3, 1966, P.L. 89-753, 80 Stat. 1246; April 3, 1970, P.L. 91-224, 84 Stat. 91; Dec. 31, 1970, P.L. 91-611, 84 Stat. 1818; July 9, 1971, P.L. 92-50, 85 Stat. 124; Oct. 13, 1971, P.L. 92-137, 85 Stat. 379; March 1, 1972, P.L. 92-40, 86 Stat. 47. It formerly appeared as 33 USC §§ 466 et seq. and then was transferred to 33 USC §§ 1151 et seq. The Act is shown as having been added by Act Oct. 18, 1972, without reference to intervening amendments because of the extensive amendment, reorganization and expansion of the Act's provisions by Act Oct. 18, 1972.
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*** CURRENT THROUGH PL 112-13, APPROVED 5/12/2011 ***
TITLE 33. NAVIGATION AND NAVIGABLE WATERS CHAPTER 26. WATER POLLUTION PREVENTION AND CONTROL STANDARDS AND ENFORCEMENT
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33 USCS § 1311
§ 1311. Effluent limitations
(a) Illegality of pollutant discharges except in compliance with law. Except as in compliance with this section and sections 302, 306, 307, 318, 402, and 404 of this Act [33 USCS §§ 1312, 1316, 1317, 1328, 1342, 1344], the discharge of any pollutant by any person shall be unlawful.
(b) Timetable for achievement of objectives. In order to carry out the objective of this Act there shall be achieved-- (1) (A) not later than July 1, 1977, effluent limitations for point sources, other than publicly owned treatment works, (i) which shall require the application of the best practicable control technology currently available as defined by the Administrator pursuant to section 304(b) of this Act [33 USCS § 1314(b)], or (ii) in the case of a discharge into a publicly owned treatment works which meets the requirements of subparagraph (B) of this paragraph, which shall require compliance with any applicable pretreatment requirements and any requirements under section 307 of this Act [33 USCS § 1317]; and (B) for publicly owned treatment works in existence on July 1, 1977, or approved pursuant to section 203 of this Act [33 USCS § 1283] prior to June 30, 1974 (for which construction must be completed within four years of approval), effluent limitations based upon secondary treatment as defined by the Administrator pursuant to section 304(d)(1) of this Act [33 USCS § 1314(d)(1)]; or, (C) not later than July 1, 1977, any more stringent limitation, including those necessary to meet water quality standards, treatment standards, or schedules of compliance, established pursuant to any State law or regulations (under authority preserved by section 510 [33 USCS § 1370]) or any other Federal law or regulation, or required to implement any applicable water quality standard established pursuant to this Act. (2) (A) for pollutants identified in subparagraphs (C), (D), and (F) of this paragraph, effluent limitations for categories and classes of point sources, other than publicly owned treatment works, which (i) shall require application of the best available technology economically achievable for such category or class, which will result in reasonable further progress toward the national goal of eliminating the discharge of all pollutants, as determined in accordance with regulations issued by the Administrator pursuant to section 304(b)(2) of this Act [33 USCS § 1314(b)(2)], which such effluent limitations shall require the elimination of discharges of all pollutants if the Administrator finds, on the basis of information available to him (including information developed pursuant to section 315 [33 USCS § 1325]), that such
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elimination is technologically and economically achievable for a category or class of point sources as determined in accordance with regulations issued by the Administrator pursuant to section 304(b)(2) of this Act [33 USCS § 1314(b)(2)], or (ii) in the case of the introduction of a pollutant into a publicly owned treatment works which meets the requirements of subparagraph (B) of this paragraph, shall require compliance with any applicable pretreatment requirements and any other requirement under section 307 of this Act [33 USCS § 1317]; (B) [Repealed] (C) with respect to all toxic pollutants referred to in table 1 of Committee Print Numbered 95-30 of the Committee on Public Works and Transportation of the House of Representatives compliance with effluent limitations in accordance with subparagraph (A) of this paragraph as expeditiously as practicable but in no case later than three years after the date such limitations are promulgated under section 304(b) [33 USCS § 1314(b)], and in no case later than March 31, 1989; (D) for all toxic pollutants listed under paragraph (1) of subsection (a) of section 307 of this Act [33 USCS § 1317] which are not referred to in subparagraph (C) of this paragraph compliance with effluent limitations in accordance with subparagraph (A) of this paragraph as expeditiously as practicable, but in no case later than three years after the date such limitations are promulgated under section 304(b) [33 USCS § 1314(b)], and in no case later than March 31, 1989; (E) as expeditiously as practicable but in no case later than three years after the date such limitations are promulgated under section 304(b) [33 USCS § 1314(b)], and in no case later than March 31, 1989, compliance with effluent limitations for categories and classes of point sources, other than publicly owned treatment works, which in the case of pollutants identified pursuant to section 304(a)(4) of this Act [33 USCS § 1314(a)(4)] shall require application of the best conventional pollutant control technology as determined in accordance with regulations issued by the Administrator pursuant to section 304(b)(4) of this Act [33 USCS § 1314(b)(4)]; and (F) for all pollutants (other than those subject to subparagraphs (C), (D), or (E) of this paragraph) compliance with effluent limitations in accordance with subparagraph (A) of this paragraph as expeditiously as practicable but in no case later than 3 years after the date such limitations are established, and in no case later than March 31, 1989. (3) (A) for effluent limitations under paragraph (1)(A)(i) of this subsection promulgated after January 1, 1982, and requiring a level of control substantially greater or based on fundamentally different control technology than under permits for an industrial category issued before such date, compliance as expeditiously as practicable but in no case later than three years after the date such limitations are promulgated under section 304(b) [33 USCS § 1314(b)], and in no case later than March 31, 1989; and (B) for any effluent limitation in accordance with paragraph (1)(A)(i), (2)(A)(i), or (2)(E) of this subsection established only on the basis of section 402(a)(1) [33 USCS § 1342(a)(1)] in a permit issued after enactment of the Water Quality Act of 1987 [enacted Feb. 4, 1987], compliance as expeditiously as practicable but in no case later than three years after the date such limitations are established, and in no case later than March 31, 1989.
(c) Modification of timetable. The Administrator may modify the requirements of subsection (b)(2)(A) of this section with respect to any point source for which a permit application is filed after July 1, 1977, upon a showing by the owner or operator of such point source satisfactory to the Administrator that such modified requirements (1) will represent the maximum use of technology within the economic capability of the owner or operator; and (2) will result in reasonable further progress toward the elimination of the discharge of pollutants.
(d) Review and revision of effluent limitations. Any effluent limitation required by paragraph (2) of subsection (b) of this section shall be reviewed at least every five years and, if appropriate, revised pursuant to the procedure established under such paragraph.
(e) All point discharge source application of effluent limitations. Effluent limitations established pursuant to this section or section 302 of this Act [33 USCS § 1312] shall be applied to all point sources of discharge of pollutants in accordance with the provisions of this Act [33 USCS §§ 1251 et seq.].
(f) Illegality of discharge of radiological, chemical, or biological warfare agents, high-level radioactive waste or medical waste. Notwithstanding any other provisions of this Act [33 USCS §§ 1251 et seq.] it shall be unlawful to discharge any
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radiological, chemical, or biological warfare agent, any high-level radioactive waste, or any medical waste, into the navigable waters.
(g) Modifications for certain nonconventional pollutants. (1) General authority. The Administrator, with the concurrence of the State, may modify the requirements of subsection (b)(2)(A) of this section with respect to the discharge from any point source of ammonia, chlorine, color, iron, and total phenols (4AAP) (when determined by the Administrator to be a pollutant covered by subsection (b)(2)(F)) and any other pollutant which the Administrator lists under paragraph (4) of this subsection. (2) Requirements for granting modifications. A modification under this subsection shall be granted only upon a showing by the owner or operator of a point source satisfactory to the Administrator that-- (A) such modified requirements will result at a minimum in compliance with the requirements of subsection (b)(1)(A) or (C) of this section, whichever is applicable; (B) such modified requirements will not result in any additional requirements on any other point or nonpoint source; and (C) such modification will not interfere with the attainment or maintenance of that water quality which shall assure protection of public water supplies, and the protection and propagation of a balanced population of shellfish, fish, and wildlife, and allow recreational activities, in and on the water and such modification will not result in the discharge of pollutants in quantities which may reasonably be anticipated to pose an unacceptable risk to human health or the environment because of bioaccumulation, persistency in the environment, acute toxicity, chronic toxicity (including carcinogenicity, mutagenicity or teratogenicity), or synergistic propensities. (3) Limitation on authority to apply for subsection (c) modification. If an owner or operator of a point source applies for a modification under this subsection with respect to the discharge of any pollutant, such owner or operator shall be eligible to apply for modification under subsection (c) of this section with respect to such pollutant only during the same time period as he is eligible to apply for a modification under this subsection. (4) Procedures for listing additional pollutants. (A) General authority. Up on petition of any person, the Administrator may add any pollutant to the list of pollutants for which modification under this section is authorized (except for pollutants identified pursuant to section 304(a)(4) of this Act [33 USCS § 1314(a)(4)], toxic pollutants subject to section 307(a) of this Act [33 USCS § 1317(a)], and the thermal component of discharges) in accordance with the provisions of this paragraph. (B) Requirements for listing. (i) Sufficient information. The person petitioning for listing of an additional pollutant under this subsection shall submit to the Administrator sufficient information to make the determinations required by this subparagraph. (ii) Toxic criteria determination. The Administrator shall determine whether or not the pollutant meets the criteria for listing as a toxic pollutant under section 307(a) of this Act [33 USCS § 1317(a)]. (iii) Listing as toxic pollutant. If the Administrator determines that the pollutant meets the criteria for listing as a toxic pollutant under section 307(a) [33 USCS § 1317(a)], the Administrator shall list the pollutant as a toxic pollutant under section 307(a) [33 USCS § 1317(a)]. (iv) Nonconventional criteria determination. If the Administrator determines that the pollutant does not meet the criteria for listing as a toxic pollutant under such section and determines that adequate test methods and sufficient data are available to make the determinations required by paragraph (2) of this subsection with respect to the pollutant, the Administrator shall add the pollutant to the list of pollutants specified in paragraph (1) of this subsection for which modifications are authorized under this subsection. (C) Requirements for filing of petitions. A petition for listing of a pollutant under this paragraph-- (i) must be filed not later than 270 days after the date of promulgation of an applicable effluent guideline under section 304 [33 USCS § 1314]; (ii) may be filed before promulgation of such guideline; and (iii) may be filed with an application for a modification under paragraph (1) with respect to the discharge of such pollutant. (D) Deadline for approval of petition. A decision to add a pollutant to the list of pollutants for which modifications under this subsection are authorized must be made within 270 days after the date of promulgation of an applicable
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effluent guideline under section 304 [33 USCS § 1314]. (E) Burden of proof. The burden of proof for making the determinations under subparagraph (B) shall be on the petitioner. (5) Removal of pollutants. The Administrator may remove any pollutant from the list of pollutants for which modifications are authorized under this subsection if the Administrator determines that adequate test methods and sufficient data are no longer available for determining whether or not modifications may be granted with respect to such pollutant under paragraph (2) of this subsection.
(h) Modification of secondary treatment requirements. The Administrator, with the concurrence of the State, may issue a permit under section 402 [33 USCS § 1342] which modifies the requirements of subsection (b)(1)(B) of this section with respect to the discharge of any pollutant from a publicly owned treatment works into marine waters, if the applicant demonstrates to the satisfaction of the Administrator that-- (1) there is an applicable water quality standard specific to the pollutant for which the modification is requested, which has been identified under section 304(a)(6) of this Act [33 USCS § 1314(a)(6)]; (2) the discharge of pollutants in accordance with such modified requirements will not interfere, alone or in combination with pollutants from other sources, with the attainment or maintenance of that water quality which assures protection of public water supplies and the protection and propagation of a balanced, indigenous population of shellfish, fish and wildlife, and allows recreational activities, in and on the water; (3) the applicant has established a system for monitoring the impact of such discharge on a representative sample of aquatic biota, to the extent practicable, and the scope of such monitoring is limited to include only those scientific investigations which are necessary to study the effects of the proposed discharge; (4) such modified requirements will not result in any additional requirements on any other point or nonpoint source; (5) all applicable pretreatment requirements for sources introducing waste into such treatment works will be enforced; (6) in the case of any treatment works serving a population of 50,000 or more, with respect to any toxic pollutant introduced into such works by an industrial discharger for which pollutant there is no applicable pretreatment requirement in effect, sources introducing waste into such works are in compliance with all applicable pretreatment requirements, the applicant will enforce such requirements, and the applicant has in effect a pretreatment program which, in combination with the treatment of discharges from such works, removes the same amount of such pollutant as would be removed if such works were to apply secondary treatment to discharges and if such works had no pretreatment program with respect to such pollutant; (7) to the extent practicable, the applicant has established a schedule of activities designed to eliminate the entrance of toxic pollutants from nonindustrial sources into such treatment works; (8) there will be no new or substantially increased discharges from the point source of the pollutant to which the modification applies above that volume of discharge specified in the permit; (9) the applicant at the time such modification becomes effective will be discharging effluent which has received at least primary or equivalent treatment and which meets the criteria established under section 304(a)(1) of this Act [33 USCS § 1314(a)(1)] after initial mixing in the waters surrounding or adjacent to the point at which such effluent is discharged.
For the purposes of this subsection the phrase "the discharge of any pollutant into marine waters" refers to a discharge into deep waters of the territorial sea or the waters of the contiguous zone, or into saline estuarine waters where there is strong tidal movement and other hydrological and geological characteristics which the Administrator determines necessary to allow compliance with paragraph (2) of this subsection, and section 101(a)(2) of this Act [33 USCS § 1251(a)(2)]. For the purposes of paragraph (9), "primary or equivalent treatment" means treatment by screening, sedimentation, and skimming adequate to remove at least 30 percent of the biological oxygen demanding material and of the suspended solids in the treatment works influent, and disinfection, where appropriate. A municipality which applies secondary treatment shall be eligible to receive a permit pursuant to this subsection which modifies the requirements of subsection (b)(1)(B) of this section with respect to the discharge of any pollutant from any treatment works owned by such municipality into marine waters. No permit issued under this subsection shall authorize the discharge of sewage sludge into marine waters. In order for a permit to be issued under this subsection for the discharge
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of a pollutant into marine waters, such marine waters must exhibit characteristics assuring that water providing dilution does not contain significant amounts of previously discharged effluent from such treatment works. No permit issued under this subsection shall authorize the discharge of any pollutant into saline estuarine waters which at the time of application do not support a balanced indigenous population of shellfish, fish and wildlife, or allow recreation in and on the waters or which exhibit ambient water quality below applicable water quality standards adopted for the protection of public water supplies, shellfish, fish and wildlife or recreational activities or such other standards necessary to assure support and protection of such uses. The prohibition contained in the preceding sentence shall apply without regard to the presence or absence of a causal relationship between such characteristics and the applicant's current or proposed discharge. Notwithstanding any other provisions of this subsection, no permit may be issued under this subsection for discharge of a pollutant into the New York Bight Apex consisting of the ocean waters of the Atlantic Ocean westward of 73 degrees 30 minutes west longitude and northward of 40 degrees 10 minutes north latitude.
(i) Municipal time extensions. (1) Where construction is required in order for a planned or existing publicly owned treatment works to achieve limitations under subsection (b)(1)(B) or (b)(1)(C) of this section, but (A) construction cannot be completed within the time required in such subsection, or (B) the United States has failed to make financial assistance under this Act [33 USCS §§ 1251 et seq.] available in time to achieve such limitations by the time specified in such subsection, the owner or operator of such treatment works may request the Administrator (or if appropriate the State) to issue a permit pursuant to section 402 of this Act [33 USCS § 1342] or to modify a permit issued pursuant to that section to extend such time for compliance. Any such request shall be filed with the Administrator (or if appropriate the State) within 180 days after the date of enactment of the Water Quality Act of 1987 [enacted Feb. 7, 1987]. The Administrator (or if appropriate the State) may grant such request and issue or modify such a permit, which shall contain a schedule of compliance for the publicly owned treatment works based on the earliest date by which such financial assistance will be available from the United States and construction can be completed, but in no event later than July 1, 1988, and shall contain such other terms and conditions, including those necessary to carry out subsections (b) through (g) of section 201 of this Act [33 USCS § 1281(b)-(g)], section 307 of this Act [33 USCS § 1317], and such interim effluent limitations applicable to that treatment works as the Administrator determines are necessary to carry out the provisions of this Act [33 USCS §§ 1251 et seq.]. (2) (A) Where a point source (other than a publicly owned treatment works) will not achieve the requirements of subsections (b)(1)(A) and (b)(1)(C) of this section and-- (i) if a permit issued prior to July 1, 1977, to such point source is based upon a discharge into a publicly owned treatment works; or (ii) if such point source (other than a publicly owned treatment works) had before July 1, 1977, a contract (enforceable against such point source) to discharge into a publicly owned treatment works; or (iii) if either an application made before July 1, 1977, for a construction grant under this Act [33 USCS §§ 1251 et seq.] for a publicly owned treatment works, or engineering or architectural plans or working drawings made before July 1, 1977, for a publicly owned treatment works, show that such point source was to discharge into such publicly owned treatment works, and such publicly owned treatment works is presently unable to accept such discharge without construction, and in the case of a discharge to an existing publicly owned treatment works, such treatment works has an extension pursuant to paragraph (1) of this subsection, the owner or operator of such point source may request the Administrator (or if appropriate the State) to issue or modify such a permit pursuant to such section 402 [33 USCS § 1342] to extend such time for compliance. Any such request shall be filed with the Administrator (or if appropriate the State) within 180 days after the date of enactment of this subsection [enacted Dec. 27, 1977] or the filing of a request by the appropriate publicly owned treatment works under paragraph (1) of this subsection, whichever is later. If the Administrator (or if appropriate the State) finds that the owner or operator of such point source has acted in good faith, he may grant such request and issue or modify such a permit, which shall contain a schedule of compliance for the point source to achieve the requirements of subsections (b)(1)(A) and (C) of this section and shall contain such other terms and conditions, including pretreatment and interim effluent limitations and water conservation requirements applicable to that point source, as the Administrator determines are necessary to carry out the provisions of this Act [33 USCS §§ 1251 et seq.].
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(B) No time modification granted by the Administrator (or if appropriate the State) pursuant to paragraph (2)(A) of this subsection shall extend beyond the earliest date practicable for compliance or beyond the date of any extension granted to the appropriate publicly owned treatment works pursuant to paragraph (1) of this subsection, but in no event shall it extend beyond July 1, 1988; and no such time modification shall be granted unless (i) the publicly owned treatment works will be in operation and available to the point source before July 1, 1988, and will meet the requirements of subsections (b)(1)(B) and (C) of this section after receiving the discharge from that point source; and (ii) the point source and the publicly owned treatment works have entered into an enforceable contract requiring the point source to discharge into the publicly owned treatment works, the owner or operator of such point source to pay the costs required under section 204 of this Act [33 USCS § 1284], and the publicly owned treatment works to accept the discharge from the point source; and (iii) the permit for such point source requires that point source to meet all requirements under section 307(a) and (b) [33 USCS § 1317(a), (b)] during the period of such time modification.
(j) Modification procedures. (1) Any application filed under this section for a modification of the provisions of-- (A) subsection (b)(1)(B) under subsection (h) of this section shall be filed not later that [than] the 365th day which begins after the date of enactment of the Municipal Wastewater Treatment Construction Grant Amendments of 1981 [enacted Dec. 29, 1981], except that a publicly owned treatment works which prior to December 31, 1982, had a contractual arrangement to use a portion of the capacity of an ocean outfall operated by another publicly owned treatment works which has applied for or received modification under subsection (h), may apply for a modification of subsection (h) in its own right not later than 30 days after the date of the enactment of the Water Quality Act of 1987 [enacted Feb. 7, 1987], and except as provided in paragraph (5); (B) subsection (b)(2)(A) as it applies to pollutants identified in subsection (b)(2)(F) shall be filed not later than 270 days after the date of promulgation of an applicable effluent guideline under section 304 [33 USCS § 1314] or not later than 270 days after the date of enactment of the Clean Water Act of 1977 [enacted Dec. 27, 1977], whichever is later. (2) Subject to paragraph (3) of this section, any application for a modification filed under subsection (g) of this section shall not operate to stay any requirement under this Act [33 USCS §§ 1251 et seq.], unless in the judgment of the Administrator such a stay or the modification sought will not result in the discharge of pollutants in quantities which may reasonably be anticipated to pose an unacceptable risk to human health or the environment because of bioaccumulation, persistency in the environment, acute toxicity, chronic toxicity (including carcinogenicity, mutagenicity, or teratogenicity), or synergistic propensities, and that there is a substantial likelihood that the applicant will succeed on the merits of such application. In the case of an application filed under subsection (g) of this section, the Administrator may condition any stay granted under this paragraph on requiring the filing of a bond or other appropriate security to assure timely compliance with the requirements from which a modification is sought. (3) Compliance requirements under subsection (g). (A) Effect of filing. An application for a modification under subsection (g) and a petition for listing of a pollutant as a pollutant for which modifications are authorized under such subsection shall not stay the requirement that the person seeking such modification or listing comply with effluent limitations under this Act [33 USCS §§ 1251 et seq.] for all pollutants not the subject of such application or petition. (B) Effect of disapproval. Disapproval of an application for a modification under subsection (g) shall not stay the requirement that the person seeking such modification comply with all applicable effluent limitations under this Act [33 USCS §§ 1251 et seq.]. (4) Deadline for subsection (g) decision. An application for a modification with respect to a pollutant filed under subsection (g) must be approved or disapproved not later than 365 days after the date of such filing; except that in any case in which a petition for listing such pollutant as a pollutant for which modifications are authorized under such subsection is approved, such application must be approved or disapproved not later than 365 days after the date of approval of such petition. (5) Extension of application deadline. (A) In general. In the 180-day period beginning on the date of the enactment of this paragraph [enacted Oct. 31, 1994], the city of San Diego, California, may apply for a modification pursuant to subsection (h) of the requirements of subsection (b)(1)(B) with respect to biological oxygen demand and total suspended solids in the effluent discharged into
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marine waters. (B) Application. An application under this paragraph shall include a commitment by the applicant to implement a waste water reclamation program that, at a minimum, will-- (i) achieve a system capacity of 45,000,000 gallons of reclaimed waste water per day by January 1, 2010; and (ii) result in a reduction in the quantity of suspended solids discharged by the applicant into the marine environment during the period of the modification. (C) Additional conditions. The Administrator may not grant a modification pursuant to an application submitted under this paragraph unless the Administrator determines that such modification will result in removal of not less than 58 percent of the biological oxygen demand (on an annual average) and not less than 80 percent of total suspended solids (on a monthly average) in the discharge to which the application applies. A (D) Preliminary decision deadline. The Administrator shall announce a preliminary decision on an application submitted under this paragraph not later than 1 year after the date the application is submitted.
(k) Innovative technology. In the case of any facility subject to a permit under section 402 [33 USCS § 1342] which proposes to comply with the requirements of subsection (b)(2)(A) or (b)(2)(E) of this section by replacing existing production capacity with an innovative production process which will result in an effluent reduction significantly greater than that required by the limitation otherwise applicable to such facility and moves toward the national goal of eliminating the discharge of all pollutants, or with the installation of an innovative control technique that has a substantial likelihood for enabling the facility to comply with the applicable effluent limitation by achieving a significantly greater effluent reduction than that required by the applicable effluent limitation and moves toward the national goal of eliminating the discharge of all pollutants, or by achieving the required reduction with an innovative system that has the potential for significantly lower costs than the systems which have been determined by the Administrator to be economically achievable, the Administrator (or the State with an approved program under section 402 [33 USCS § 1342], in consultation with the Administrator) may establish a date for compliance under subsection (b)(2)(A) or (b)(2)(E) of this section no later than two years after the date for compliance with such effluent limitation which would otherwise be applicable under such subsection, if it is also determined that such innovative system has the potential for industry-wide application.
(l) Toxic pollutants. Other than as provided in subsection (n) of this section, the Administrator may not modify any requirement of this section as it applies to any specific pollutant which is on the toxic pollutant list under section 307(a)(1) of this Act [33 USCS § 1317(a)(1)].
(m) Modification of effluent limitation requirements for point sources. (1) The Administrator, with the concurrence of the State, may issue a permit under section 402 [33 USCS § 1342] which modifies the requirements of subsections (b)(1)(A) and (b)(2)(E) of this section, and of section 403 [33 USCS § 1343], with respect to effluent limitations to the extent such limitations relate to biochemical oxygen demand and pH from discharges by an industrial discharger in such State into deep waters of the territorial seas, if the applicant demonstrates and the Administrator finds that-- (A) the facility for which modification is sought is covered at the time of the enactment of this subsection [enacted Jan. 8, 1983] by National Pollutant Discharge Elimination System permit number CA0005894 or CA0005282; (B) the energy and environmental costs of meeting such requirements of subsections (b)(1)(A) and (b)(2)(E) and section 403 [33 USCS § 1343] exceed by an unreasonable amount the benefits to be obtained, including the objectives of this Act [33 USCS §§ 1251 et seq.]; (C) the applicant has established a system for monitoring the impact of such discharges on a representative sample of aquatic biota; (D) such modified requirements will not result in any additional requirements on any other point or nonpoint source; (E) there will be no new or substantially increased discharges from the point source of the pollutant to which the modification applies above that volume of discharge specified in the permit; (F) the discharge is into waters where there is strong tidal movement and other hydrological and geological characteristics which are necessary to allow compliance with this subsection and section 101(a)(2) of this Act [33 USCS
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§ 1251(a)(2)]; (G) the applicant accepts as a condition to the permit a contractural [contractual] obligation to use funds in the amount required (but not less than $ 250,000 per year for ten years) for research and development of water pollution control technology, including but not limited to closed cycle technology; (H) the facts and circumstances present a unique situation which, if relief is granted, will not establish a precedent or the relaxation of the requirements of this Act [33 USCS §§ 1251 et seq.] applicable to similarly situated discharges; and (I) no owner or operator of a facility comparable to that of the applicant situated in the United States has demonstrated that it would be put at a competitive disadvantage to the applicant (or the parent company or any subsidiary thereof) as a result of the issuance of a permit under this subsection. (2) The effluent limitations established under a permit issued under paragraph (1) shall be sufficient to implement the applicable State water quality standards, to assure the protection of public water supplies and protection and propagation of a balanced, indigenous population of shellfish, fish, fauna, wildlife, and other aquatic organisms, and to allow recreational activities in and on the water. In setting such limitations, the Administrator shall take into account any seasonal variations and the need for an adequate margin of safety, considering the lack of essential knowledge concerning the relationship between effluent limitations and water quality and the lack of essential knowledge of the effects of discharges on beneficial uses of the receiving waters. (3) A permit under this subsection may be issued for a period not to exceed five years, and such a permit may be renewed for one additional period not to exceed five years upon a demonstration by the applicant and a finding by the Administrator at the time of application for any such renewal that the provisions of this subsection are met. (4) The Administrator may terminate a permit issued under this subsection if the Administrator determines that there has been a decline in ambient water quality of the receiving waters during the period of the permit even if a direct cause and effect relationship cannot be shown: Provided, That if the effluent from a source with a permit issued under this subsection is contributing to a decline in ambient water quality of the receiving waters, the Administrator shall terminate such permit.
(n) Fundamentally different factors. (1) General rule. The Administrator, with the concurrence of the State, may establish an alternative requirement under subsection (b)(2) or section 307(b) [33 USCS § 1317(b)] for a facility that modifies the requirements of national effluent limitation guidelines or categorical pretreatment standards that would otherwise be applicable to such facility, if the owner or operator of such facility demonstrates to the satisfaction of the Administrator that-- (A) the facility is fundamentally different with respect to the factors (other than cost) specified in section 304(b) or 304(g) and considered by the Administrator in establishing such national effluent limitation guidelines or categorical pretreatment standards; (B) the application-- (i) is based solely on information and supporting data submitted to the Administrator during the rule-making for establishment of the applicable national effluent limitation guidelines or categorical pretreatment standard specifically raising the factors that are fundamentally different for such facility; or (ii) is based on information and supporting data referred to in clause (i) and information and supporting data the applicant did not have a reasonable opportunity to submit during such rulemaking; (C) the alternative requirement is no less stringent than justified by the fundamental difference; and (D) the alternative requirement will not result in a nonwater quality environmental impact which is markedly more adverse than the impact considered by the Administrator in establishing such national effluent limitation guideline or categorical pretreatment standard. (2) Time limit for applications. An application for an alternative requirement which modifies the requirements of an effluent limitation or pretreatment standard under this subsection must be submitted to the Administrator within 180 days after the date on which such limitation or standard is established or revised, as the case may be. (3) Time limit for decision. The Administrator shall approve or deny by final agency action an application submitted under this subsection within 180 days after the date such application is filed with the Administrator. (4) Submission of information. The Administrator may allow an applicant under this subsection to submit information and supporting data until the earlier of the date the application is approved or denied or the last day that the
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Administrator has to approve or deny such application. (5) Treatment of pending applications. For the purposes of this subsection, an application for an alternative requirement based on fundamentally different factors which is pending on the date of the enactment of this subsection [enacted Feb. 7, 1987] shall be treated as having been submitted to the Administrator on the 180th day following such date of enactment [enacted Feb. 7, 1987]. The applicant may amend the application to take into account the provisions of this subsection. (6) Effect of submission of application. An application for an alternative requirement under this subsection shall not stay the applicant's obligation to comply with the effluent limitation guideline or categorical pretreatment standard which is the subject of the application. (7) Effect of denial. If an application for an alternative requirement which modifies the requirements of an effluent limitation or pretreatment standard under this subsection is denied by the Administrator, the applicant must comply with such limitation or standard as established or revised, as the case may be. (8) Reports. By January 1, 1997, and January 1 of every odd-numbered year thereafter, the Administrator shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a report on the status of applications for alternative requirements which modify the requirements of effluent limitations under section 301 or 304 of this Act [33 USCS § 1311 or 1314] or any national categorical pretreatment standard under section 307(b) of this Act [33 USCS § 1317(b)] filed before, on, or after such date of enactment [enacted Feb. 7, 1987].
(o) Application fees. The Administrator shall prescribe and collect from each applicant fees reflecting the reasonable administrative costs incurred in reviewing and processing applications for modifications submitted to the Administrator pursuant to subsections (c), (g), (i), (k), (m), and (n) of section 301, section 304(d)(4), and section 316(a) of this Act [33 USCS §§ 1311(c), (g), (i), (k), (m), (n), 1314(d)(4), 1316(a)]. All amounts collected by the Administrator under this subsection shall be deposited into a special fund of the Treasury entitled "Water Permits and Related Services" which shall thereafter be available for appropriation to carry out activities of the Environmental Protection Agency for which such fees were collected.
(p) Modified permit for coal remining operations. (1) In general. Subject to paragraphs (2) through (4) of this subsection, the Administrator, or the State in any case which the State has an approved permit program under section 402(b) [33 USCS § 1342(b)], may issue a permit under section 402 [33 USCS § 1342] which modifies the requirements of subsection (b)(2)(A) of this section with respect to the pH level of any pre-existing discharge, and with respect to pre-existing discharges of iron and manganese from the remined area of any coal remining operation or with respect to the pH level or level of iron or manganese in any pre-existing discharge affected by the remaining operation. Such modified requirements shall apply the best available technology economically achievable on a case-by-case basis, using best professional judgment, to set specific numerical effluent limitations in each permit. (2) Limitations. The Administrator or the State may only issue a permit pursuant to paragraph (1) if the applicant demonstrates to the satisfaction of the Administrator or the State, as the case may be, that the coal remining operation will result in the potential for improved water quality from the remining operation but in no event shall such a permit allow the pH level of any discharge, and in no event shall such a permit allow the discharges of iron and manganese, to exceed the levels being discharged from the remined area before the coal remining operation begins. No discharge from, or affected by, the remining operation shall exceed State water quality standards established under section 303 of this Act [33 USCS § 1313]. (3) Definitions. For purposes of this subsection-- (A) Coal remining operation. The term "coal remining operation" means a coal mining operation which begins after the date of the enactment of this subsection [enacted Feb. 4, 1987] at a site on which coal mining was conducted before the effective date of the Surface Mining Control and Reclamation Act of 1977. (B) Remined area. The term "remined area" means only that area of any coal remining operation on which coal mining was conducted before the effective date of the Surface Mining Control and Reclamation Act of 1977. (C) Pre-existing discharge. The term "pre-existing discharge" means any discharge at the time of permit application
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under this subsection. (4) Applicability of strip mining laws. Nothing in this subsection shall affect the application of the Surface Mining Control and Reclamation Act of 1977 to any coal remining operation, including the application of such Act to suspended solids.
HISTORY: (June 30, 1948, ch 758, Title III, § 301, as added Oct. 18, 1972, P.L. 92-500, § 2, 86 Stat. 844; Dec. 27, 1977, P.L. 95-217, §§ 42-47, 53(c), 91 Stat. 1582-1586, 1590; Dec. 29, 1981, P.L. 97-117, §§ 21(a) in part, (b), 22(a)-(d), 95 Stat. 1631, 1632; Jan. 8, 1983, P.L. 97-440, 96 Stat. 2289; Feb. 4, 1987, P.L. 100-4, Title III, §§ 301(a)-(e), 302(a)-(d), 303(a), (b)(1), (c)-(f), 304(a), 305, 306(a), (b), 307, 101 Stat. 29; Nov. 18, 1988, P.L. 100-688, Title III, Subtitle B, § 3202(b), 102 Stat. 4154; Oct. 31, 1994, P.L. 103-431, § 2, 108 Stat. 4396; Dec. 21, 1995, P.L. 104-66, Title II, Subtitle B, § 2021(b), 109 Stat. 727.)
HISTORY; ANCILLARY LAWS AND DIRECTIVES
References in text: With respect to the Committee on Public Works and Transportation of the House of Representatives, referred to in this section, § 1(a)(9) of Act June 3, 1995, P.L. 104-14, which appears as a note preceding 2 USCS § 21, provides that any reference to such Committee in any provision of law enacted before January 4, 1995, shall be treated as referring to the Committee on Transportation and Infrastructure of the House of Representatives. The "Surface Mining Control and Reclamation Act of 1977", referred to in this section, is Act Aug. 3, 1977, P.L. 95-87, which appears generally as 30 USCS §§ 1201 et seq. For full classification of such Act, consult USCS Tables volumes.
Explanatory notes: The bracketed word "than" has been inserted in subsec. (j)(1)(A) as the word probably intended by Congress. The bracketed word "contractual" has been inserted in subsec. (m)(1)(G) as the word probably intended by Congress.
Amendments:
1977. Act Dec. 27, 1977, in subsec. (b)(2), in subpara. (A), substituted "for pollutants identified in subparagraphs (C), (D), and (F) of this paragraph," for "not later than July 1, 1983," and substituted the concluding semicolon for "; and", in subpara. (B), substituted the concluding semicolon for a period, and added subparas. (C)-(F); and added subsecs. (g)-(l).
1981. Act Dec. 29, 1981, in subsec. (b)(2), deleted subpara. (B) which read: "(B) not later than July 1, 1983, compliance by all publicly owned treatment works with the requirements set forth in section 201(g)(2)(A) of this Act;"; in subsec. (i), substituted "July 1, 1988" for "July 1, 1983" wherever appearing. Such Act further (effective as provided by § 22(e) of such Act, which appears as a note to this section), in subsec. (h), in the introductory matter, deleted "in an existing discharge" after "any pollutant", in para. (7), substituted the final period for a semi-colon, deleted para. (8) which read: "any funds available to the owner of such treatment works under title II of this Act will be used to achieve the degree of effluent reduction required by section 201(b) and (g)(2)(A) or to carry out the requirements of this subsection.", and in the concluding matter, inserted the sentences beginning "A municipality . . ." and "No permit"; and substituted subsec. (j)(1)(A) for one which read "subsection (b)(1)(B) under subsection (h) of this section shall be filed not later than 270 days after the date of enactment of the Clean Water Act of
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TITLE 33. NAVIGATION AND NAVIGABLE WATERS CHAPTER 26. WATER POLLUTION PREVENTION AND CONTROL STANDARDS AND ENFORCEMENT
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33 USCS § 1313
§ 1313. Water quality standards and implementation plans
(a) Existing water quality standards. (1) In order to carry out the purpose of this Act [33 USCS §§ 1251 et seq.], any water quality standard applicable to interstate waters which was adopted by any State and submitted to, and approved by, or is awaiting approval by, the Administrator pursuant to this Act as in effect immediately prior to the date of enactment of the Federal Water Pollution Control Act Amendments of 1972 [enacted Oct. 18, 1972], shall remain in effect unless the Administrator determined that such standard is not consistent with the applicable requirements of this Act as in effect immediately prior to the date of enactment of the Federal Water Pollution Control Act Amendments of 1972 [enacted Oct. 18, 1972]. If the Administrator makes such a determination he shall, within three months after the date of enactment of the Federal Water Pollution Control Act Amendments of 1972 [enacted Oct. 18, 1972], notify the State and specify the changes needed to meet such requirements. If such changes are not adopted by the State within ninety days after the date of such notification, the Administrator shall promulgate such changes in accordance with subsection (b) of this section. (2) Any State which, before the date of enactment of the Federal Water Pollution Control Act Amendments of 1972 [enacted Oct. 18, 1972], has adopted, pursuant to its own law, water quality standards applicable to intrastate waters shall submit such standards to the Administrator within thirty days after the date of enactment of the Federal Water Pollution Control Act Amendments of 1972 [enacted Oct. 18, 1972]. Each such standard shall remain in effect, in the same manner and to the same extent as any other water quality standard established under this Act [33 USCS §§ 1251 et seq.] unless the Administrator determines that such standard is inconsistent with the applicable requirements of this Act as in effect immediately prior to the date of enactment of the Federal Water Pollution Control Act Amendments of 1972 [enacted Oct. 18, 1972]. If the Administrator makes such a determination he shall not later than the one hundred and twentieth day after the date of submission of such standards, notify the State and specify the changes needed to meet such requirements. If such changes are not adopted by the State within ninety days after such notification, the Administrator shall promulgate such changes in accordance with subsection (b) of this section. (3) (A) Any State which prior to the date of enactment of the Federal Water Pollution Control Act Amendments of 1972 [enacted Oct. 18, 1972] has not adopted pursuant to its own laws water quality standards applicable to intrastate waters shall, not later than one hundred and eighty days after the date of enactment of the Federal Water Pollution Control Act Amendments of 1972 [enacted Oct. 18, 1972], adopt and submit such standards to the Administrator.
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(B) If the Administrator determines that any such standards are consistent with the applicable requirements of this Act as in effect immediately prior to the date of enactment of the Federal Water Pollution Control Act Amendments of 1972 [enacted Oct. 18, 1972], he shall approve such standards. (C) If the Administrator determines that any such standards are not consistent with the applicable requirements of this Act as in effect immediately prior to the date of enactment of the Federal Water Pollution Control Act Amendments of 1972 [enacted Oct. 18, 1972], he shall, not later than the ninetieth day after the date of submission of such standards, notify the State and specify the changes to meet such requirements. If such changes are not adopted by the State within ninety days after the date of notification, the Administrator shall promulgate such standards pursuant to subsection (b) of this section.
(b) Proposed regulations. (1) The Administrator shall promptly prepare and publish proposed regulations setting forth water quality standards for a State in accordance with the applicable requirements of this Act as in effect immediately prior to the date of enactment of the Federal Water Pollution Control Act Amendments of 1972 [enacted Oct. 18, 1972], if-- (A) the State fails to submit water quality standards within the times prescribed in subsection (a) of this section. (B) a water quality standard submitted by such State under subsection (a) of this section is determined by the Administrator not to be consistent with the applicable requirements of subsection (a) of this section. (2) The Administrator shall promulgate any water quality standard published in a proposed regulation not later than one hundred and ninety days after the date he publishes any such proposed standard, unless prior to such promulgation, such State has adopted a water quality standard which the Administrator determines to be in accordance with subsection (a) of this section.
(c) Review; revised standards; publication. (1) The Governor of a State or the State water pollution control agency of such State shall from time to time (but at least once each three year period beginning with the date of enactment of the Federal Water Pollution Control Act Amendments of 1972 [enacted Oct. 18, 1972]) hold public hearings for the purpose of reviewing applicable water quality standards and, as appropriate, modifying and adopting standards. Results of such review shall be made available to the Administrator. (2) (A) Whenever the State revises or adopts a new standard, such revised or new standard shall be submitted to the Administrator. Such revised or new water quality standard shall consist of the designated uses of the navigable waters involved and the water quality criteria for such waters based upon such uses. Such standards shall be such as to protect the public health or welfare, enhance the quality of water and serve the purposes of this Act [33 USCS §§ 1251 et seq.]. Such standards shall be established taking into consideration their use and value for public water supplies, propagation of fish and wildlife, recreational purposes, and agricultural, industrial, and other purposes, and also taking into consideration their use and value for navigation. (B) Whenever a State reviews water quality standards pursuant to paragraph (1) of this subsection, or revises or adopts new standards pursuant to this paragraph, such State shall adopt criteria for all toxic pollutants listed pursuant to section 307(a)(1) of this Act [33 USCS § 1317(a)(1)] for which criteria have been published under section 304(a) [33 USCS § 1314(a)], the discharge or presence of which in the affected waters could reasonably be expected to interfere with those designated uses adopted by the State, as necessary to support such designated uses. Such criteria shall be specific numerical criteria for such toxic pollutants. Where such numerical criteria are not available, whenever a State reviews water quality standards pursuant to paragraph (1), or revises or adopts new standards pursuant to this paragraph, such State shall adopt criteria based on biological monitoring or assessment methods consistent with information published pursuant to section 304(a)(8) [33 USCS § 1314(a)(8)]. Nothing in this section shall be construed to limit or delay the use of effluent limitations or other permit conditions based on or involving biological monitoring or assessment methods or previously adopted numerical criteria. (3) If the Administrator, within sixty days after the date of submission of the revised or new standard, determines that such standard meets the requirements of this Act [33 USCS §§ 1251 et seq.], such standard shall thereafter be the water quality standard for the applicable waters of that State. If the Administrator determines that any such revised or new standard is not consistent with the applicable requirements of this Act [33 USCS §§ 1251 et seq.], he shall not later than
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the ninetieth day after the date of submission of such standard notify the State and specify the changes to meet such requirements. If such changes are not adopted by the State within ninety days after the date of notification, the Administrator shall promulgate such standard pursuant to paragraph (4) of this subsection. (4) The Administrator shall promptly prepare and publish proposed regulations setting forth a revised or new water quality standard for the navigable waters involved-- (A) if a revised or new water quality standard submitted by such State under paragraph (3) of this subsection for such waters is determined by the Administrator not to be consistent with the applicable requirements of this Act [33 USCS §§ 1251 et seq.], or (B) in any case where the Administrator determines that a revised or new standard is necessary to meet the requirements of this Act [33 USCS §§ 1251 et seq.]. The Administrator shall promulgate any revised or new standard under this paragraph not later than ninety days after he publishes such proposed standards, unless prior to such promulgation, such State has adopted a revised or new water quality standard which the Administrator determines to be in accordance with this Act [33 USCS §§ 1251 et seq.].
(d) Identification of areas with insufficient controls; maximum daily load; certain effluvient limitations revision. (1) (A) Each State shall identify those waters within its boundaries for which the effluent limitations required by section 301(b)(1)(A) and section 301(b)(1)(B) [33 USCS § 1311(b)(1)(A), (B)] are not stringent enough to implement any water quality standard applicable to such waters. The State shall establish a priority ranking for such waters, taking into account the severity of the pollution and the uses to be made of such waters. (B) Each State shall identify those waters or parts thereof within its boundaries for which controls on thermal discharges under section 301 [33 USCS § 1311] are not stringent enough to assure protection and propagation of a balanced indigenous population of shellfish, fish, and wildlife. (C) Each State shall establish for the waters identified in paragraph (1)(A) of this subsection, and in accordance with the priority ranking, the total maximum daily load, for those pollutants which the Administrator identifies under section 304(a)(2) [33 USCS § 1314(a)(2)] as suitable for such calculation. Such load shall be established at a level necessary to implement the applicable water quality standards with seasonal variations and a margin of safety which takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality. (D) Each State shall estimate for the waters identified in paragraph (1)(B) of this subsection the total maximum daily thermal load required to assure protection and propagation of a balanced, indigenous population of shellfish, fish and wildlife. Such estimates shall take into account the normal water temperatures, flow rates, seasonal variations, existing sources of heat input, and the dissipative capacity of the identified waters or parts thereof. Such estimates shall include a calculation of the maximum heat input that can be made into each such part and shall include a margin of safety which takes into account any lack of knowledge concerning the development of thermal water quality criteria for such protection and propagation in the identified waters or parts thereof. (2) Each State shall submit to the Administrator from time to time, with the first such submission not later than one hundred and eighty days after the date of publication of the first identification of pollutants under section 304(a)(2)(D) [33 USCS § 1314(a)(2)(D)], for his approval the waters identified and the loads established under paragraphs (1)(A), (1)(B), (1)(C), and (1)(D) of this subsection. The Administrator shall either approve or disapprove such identification and load not later than thirty days after the date of submission. If the Administrator approves such identification and load, such State shall incorporate them into its current plan under subsection (e) of this section. If the Administrator disapproves such identification and load, he shall not later than thirty days after the date of such disapproval identify such waters in such State and establish such loads for such waters as he determines necessary to implement the water quality standards applicable to such waters and upon such identification and establishment the State shall incorporate them into its current plan under subsection (e) of this section. (3) For the specific purpose of developing information, each State shall identify all waters within its boundaries which it has not identified under paragraph (1)(A) and (1)(B) of this subsection and estimate for such waters the total maximum daily load with seasonal variations and margins of safety, for those pollutants which the Administrator identifies under section 304(a)(2) [33 USCS § 1314(a)(2)] as suitable for such calculation and for thermal discharges, at a level that would assure protection and propagation of a balanced indigenous population of fish, shellfish and wildlife. (4) Limitations on revision of certain effluent limitations.
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(A) Standard not attained. For waters identified under paragraph (1)(A) where the applicable water quality standard has not yet been attained, any effluent limitation based on a total maximum daily load or other waste load allocation established under this section may be revised only if (i) the cumulative effect of all such revised effluent limitations based on such total maximum daily load or waste load allocation will assure the attainment of such water quality standard, or (ii) the designated use which is not being attained is removed in accordance with regulations established under this section. (B) Standard attained. For waters identified under paragraph (1)(A) where the quality of such waters equals or exceeds levels necessary to protect the designated use for such waters or otherwise required by applicable water quality standards, any effluent limitation based on a total maximum daily load or other waste load allocation established under this section, or any water quality standard established under this section, or any other permitting standard may be revised only if such revision is subject to and consistent with the antidegradation policy established under this section.
(e) Continuing planning process. (1) Each State shall have a continuing planning process approved under paragraph (2) of this subsection which is consistent with this Act [33 USCS §§ 1251 et seq.]. (2) Each State shall submit not later than 120 days after the date of the enactment of the Water Pollution Control Amendments of 1972 [enacted Oct. 18, 1972] to the Administrator for his approval a proposed continuing planning process which is consistent with this Act [33 USCS §§ 1251 et seq.]. Not later than thirty days after the date of submission of such a process the Administrator shall either approve or disapprove such process. The Administrator shall from time to time review each State's approved planning process for the purpose of insuring that such planning process is at all times consistent with this Act [33 USCS §§ 1251 et seq.]. The Administrator shall not approve any State permit program under title IV of this Act [33 USCS §§ 1341 et seq.] for any State which does not have an approved continuing planning process under this section. (3) The Administrator shall approve any continuing planning process submitted to him under this section which will result in plans for all navigable waters within such State, which include, but are not limited to, the following: (A) effluent limitations and schedules of compliance at least as stringent as those required by section 301(b)(1), section 301(b)(2), section 306, and section 307 [33 USCS §§ 1311(b)(1), (2), 1316, 1317], and at least as stringent as any requirements contained in any applicable water quality standard in effect under authority of this section; (B) the incorporation of all elements of any applicable area-wide waste management plans under section 208 [33 USCS § 1288], and applicable basin plans under section 209 of this Act [33 USCS § 1289]; (C) total maximum daily load for pollutants in accordance with subsection (d) of this section; (D) procedures for revision; (E) adequate authority for intergovernmental cooperation; (F) adequate implementation, including schedules of compliance, for revised or new water quality standards, under subsection (c) of this section; (G) controls over the disposition of all residual waste from any water treatment processing; (H) an inventory and ranking, in order of priority, of needs for construction of waste treatment works required to meet the applicable requirements of sections 301 and 302 [33 USCS §§ 1311, 1312].
(f) Earlier compliance. Nothing in this section shall be construed to affect any effluent limitation, or schedule of compliance required by any State to be implemented prior to the dates set forth in sections 301(b)(1) and 301(b)(2) [33 USCS § 1311(b)(1), (2)] nor to preclude any State from requiring compliance with any effluent limitation or schedule of compliance at dates earlier than such dates.
(g) Heat standards. Water quality standards relating to heat shall be consistent with the requirements of section 316 of this Act [33 USCS § 1326].
(h) Thermal water quality standards. For the purposes of this Act [33 USCS §§ 1251 et seq.] the term "water quality standards" includes thermal water quality standards.
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(i) Coastal recreation water quality criteria. (1) Adoption by States. (A) Initial criteria and standards. Not later than 42 months after the date of the enactment of this subsection [enacted Oct. 10, 2000], each State having coastal recreation waters shall adopt and submit to the Administrator water quality criteria and standards for the coastal recreation waters of the State for those pathogens and pathogen indicators for which the Administrator has published criteria under section 304(a) [33 USCS § 1314(a)]. (B) New or revised criteria and standards. Not later than 36 months after the date of publication by the Administrator of new or revised water quality criteria under section 304(a)(9) [33 USCS § 1314(a)(9)], each State having coastal recreation waters shall adopt and submit to the Administrator new or revised water quality standards for the coastal recreation waters of the State for all pathogens and pathogen indicators to which the new or revised water quality criteria are applicable. (2) Failure of States to adopt. (A) In general. If a State fails to adopt water quality criteria and standards in accordance with paragraph (1)(A) that are as protective of human health as the criteria for pathogens and pathogen indicators for coastal recreation waters published by the Administrator, the Administrator shall promptly propose regulations for the State setting forth revised or new water quality standards for pathogens and pathogen indicators described in paragraph (1)(A) for coastal recreation waters of the State. (B) Exception. If the Administrator proposes regulations for a State described in subparagraph (A) under subsection (c)(4)(B), the Administrator shall publish any revised or new standard under this subsection not later than 42 months after the date of the enactment of this subsection [enacted Oct. 10, 2000]. (3) Applicability. Except as expressly provided by this subsection, the requirements and procedures of subsection (c) apply to this subsection, including the requirement in subsection (c)(2)(A) that the criteria protect public health and welfare.
HISTORY: (June 30, 1948, ch 758, Title III, § 303, as added Oct. 18, 1972, P.L. 92-500, § 2, 86 Stat. 846; Feb. 4, 1987, P.L. 100-4, Title III, § 308(d), Title IV, § 404(b), 101 Stat. 39, 68; Oct. 10, 2000, P.L. 106-284, § 2, 114 Stat. 870.)
HISTORY; ANCILLARY LAWS AND DIRECTIVES
References in text: "This Act as in effect immediately prior to the date of enactment of the Federal Water Pollution Control Act Amendments of 1972", referred to in this section, is Act June 30, 1948, ch 758 (former 33 USCS §§ 1151 et seq.), prior to supersedure and reenactment by Act Oct. 18, 1972, P.L. 92-500, § 2, 86 Stat. 816.
Amendments:
1987. Act Feb. 4, 1987, in subsec. (c)(2), inserted "(A)" following "(2)", and added subpara. (B); and in subsec. (d), added para. (4).
2000. Act Oct. 10, 2000, added subsec. (i).
NOTES:
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TITLE 33. NAVIGATION AND NAVIGABLE WATERS CHAPTER 26. WATER POLLUTION PREVENTION AND CONTROL STANDARDS AND ENFORCEMENT
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33 USCS § 1318
§ 1318. Records and reports; inspections
(a) Maintenance; monitoring equipment; entry; access to information. Whenever required to carry out the objective of this Act [33 USCS §§ 1251 et seq.], including but not limited to (1) developing or assisting in the development of any effluent limitation, or other limitation, prohibition, or effluent standard, pretreatment standard, or standard of performance under this Act [33 USCS §§ 1251 et seq.]; (2) determining whether any person is in violation of any such effluent limitation, or other limitation, prohibition or effluent standard, pretreatment standard, or standard of performance; (3) any requirement established under this section; or (4) carrying out sections 305, 311, 402, 404 (relating to state permit programs), 405, and 504 of this Act [33 USCS §§ 1315, 1321, 1342, 1344, 1345, 1364]-- (A) the Administrator shall require the owner or operator of any point source to (i) establish and maintain such records, (ii) make such reports, (iii) install, use, and maintain such monitoring equipment or methods (including where appropriate, biological monitoring methods), (iv) sample such effluents (in accordance with such methods, at such locations, at such intervals, and in such manner as the Administrator shall prescribe), and (v) provide such other information as he may reasonably require; and (B) the Administrator or his authorized representative (including an authorized contractor acting as a representative of the Administrator), upon presentation of his credentials-- (i) shall have a right of entry to, upon, or through any premises in which an effluent source is located or in which any records required to be maintained under clause (A) of this subsection are located, and (ii) may at reasonable times have access to and copy any records, inspect any monitoring equipment or method required under clause (A), and sample any effluents which the owner or operator of such source is required to sample under such clause.
(b) Availability to public; trade secrets exception; penalty for disclosure of confidential information. Any records, reports, or information obtained under this section (1) shall, in the case of effluent data, be related to any applicable effluent limitations, toxic, pretreatment, or new source performance standards, and (2) shall be available to the public, except that upon a showing satisfactory to the Administrator by any person that records, reports, or information, or particular part thereof (other than effluent data), to which the Administrator has access under this section, if made public would divulge methods or processes entitled to protection as trade secrets of such person, the Administrator shall
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consider such record, report, or information, or particular portion thereof confidential in accordance with the purposes of section 1905 of title 18 of the United States Code. Any authorized representative of the Administrator (including an authorized contractor acting as a representative of the Administrator) who knowingly or willfully publishes, divulges, discloses, or makes known in any manner or to any extent not authorized by law any information which is required to be considered confidential under this subsection shall be fined not more than $ 1,000 or imprisoned not more than 1 year, or both. Nothing in this subsection shall prohibit the Administrator or an authorized representative of the Administrator (including any authorized contractor acting as a representative of the Administrator) from disclosing records, reports, or information to other officers, employees, or authorized representatives of the United States concerned with carrying out this Act [33 USCS §§ 1251 et seq.] or when relevant in any proceeding under this Act [33 USCS §§ 1251 et seq.].
(c) Application of State law. Each State may develop and submit to the Administrator procedures under State law for inspection, monitoring, and entry with respect to point sources located in such State. If the Administrator finds that the procedures and the law of any State relating to inspection, monitoring, and entry are applicable to at least the same extent as those required by this section, such State is authorized to apply and enforce its procedures for inspection, monitoring, and entry with respect to point sources located in such State (except with respect to point sources owned or operated by the United States).
(d) Access by Congress. Notwithstanding any limitation contained in this section or any other provision of law, all information reported to or otherwise obtained by the Administrator (or any representative of the Administrator) under this Act [33 USCS §§ 1251 et seq.] shall be made available, upon written request of any duly authorized committee of Congress, to such committee.
HISTORY: (June 30, 1948, ch. 758, Title III, § 308, as added, Oct. 18, 1972, P.L. 92-500, § 2, 86 Stat. 858; Dec. 27, 1977, P.L. 95-217, § 67(c)(1), 91 Stat. 1606; Feb. 4, 1987, P.L. 100-4, Title III, § 310, Title IV, § 406(d)(1), 101 Stat. 41, 73.)
HISTORY; ANCILLARY LAWS AND DIRECTIVES
Amendments:
1977. Act Dec. 27, 1977, in subsec. (a)(4), inserted "404 (relating to State permit programs),".
1987. Act Feb. 4, 1987, in subsec. (a), in the introductory matter, inserted "405," following "state permit programs),", in subpara. (B), in the introductory matter, inserted "(including an authorized contractor acting as a representative of the Administrator)"; in subsec. (b), inserted a period after "Code", deleted ", except that such record, report, or information may be disclosed to other officers, employees, or authorized representatives of the United States concerned with carrying out this Act or when relevant in any proceeding under this Act.", and inserted the sentences beginning "Any authorized representative. . . ." and "Nothing in this subsection. . . ."; and added subsec. (d).
NOTES:
Code of Federal Regulations: Environmental Protection Agency--Public information, 40 CFR 2.100 et seq. Environmental Protection Agency--OMB approvals under the Paperwork Reduction Act, 40 CFR 9.1 et seq. Environmental Protection Agency--Secondary treatment regulation, 40 CFR 133.100 et seq. Environmental Protection Agency--Concentrated animal feeding operations (CAFO) point source category, 40 CFR
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*** CURRENT THROUGH PL 112-13, APPROVED 5/12/2011 ***
TITLE 33. NAVIGATION AND NAVIGABLE WATERS CHAPTER 26. WATER POLLUTION PREVENTION AND CONTROL PERMITS AND LICENSES
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33 USCS § 1342
§ 1342. National pollutant discharge elimination system
(a) Permits for discharge of pollutants. (1) Except as provided in sections 318 and 404 of this Act [33 USCS §§ 1328, 1344], the Administrator may, after opportunity for public hearing, issue a permit for the discharge of any pollutant, or combination of pollutants, notwithstanding section 301(a) [33 USCS § 1311(a)], upon condition that such discharge will meet either (A) all applicable requirements under sections 301, 302, 306, 307, 308, and 403 of this Act [33 USCS §§ 1311, 1312, 1316, 1317, 1318, 1343], (B) or prior to the taking of necessary implementing actions relating to all such requirements, such conditions as the Administrator determines are necessary to carry out the provisions of this Act [33 USCS §§ 1251 et seq.]. (2) The Administrator shall prescribe conditions for such permits to assure compliance with the requirements of paragraph (1) of this subsection, including conditions on data and information collection, reporting, and such other requirements as he deems appropriate. (3) The permit program of the Administrator under paragraph (1) of this subsection, and permits issued thereunder, shall be subject to the same terms, conditions, and requirements as apply to a State permit program and permits issued thereunder under subsection (b) of this section. (4) All permits for discharges into the navigable waters issued pursuant to section 13 of the Act of March 3, 1899 [33 USCS § 407], shall be deemed to be permits issued under this title [33 USCS §§ 1341 et seq.], and permits issued under this title [33 USCS §§ 1341 et seq.] shall be deemed to be permits issued under section 13 of the Act of March 3, 1899 [33 USCS § 407], and shall continue in force and effect for their term unless revoked, modified, or suspended in accordance with the provisions of this Act [33 USCS §§ 1251 et seq.]. (5) No permit for a discharge into the navigable waters shall be issued under section 13 of the Act of March 3, 1899 [33 USCS § 407], after the date of enactment of this title [enacted Oct. 18, 1972]. Each application for a permit under section 13 of the Act of March 3, 1899 [33 USCS § 407], pending on the date of enactment of this Act [enacted Oct. 18, 1972], shall be deemed to be an application for a permit under this section. The Administrator shall authorize a State, which he determines has the capability of administering a permit program which will carry out the objective of this Act [33 USCS §§ 1251 et seq.], to issue permits for discharges into the navigable waters within the jurisdiction of such State. The Administrator may exercise the authority granted him by the preceding sentence only during the period
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which begins on the date of enactment of this Act [enacted Oct. 18, 1972] and ends either on the ninetieth day after the date of the first promulgation of guidelines required by section 304(h)(2) [304(i)(2)] of this Act [33 USCS § 1314(i)(2)], or the date of approval by the Administrator of a permit program for such State under subsection (b) of this section whichever date first occurs, and no such authorization to a State shall extend beyond the last day of such period. Each such permit shall be subject to such conditions as the Administrator determines are necessary to carry out the provisions of this Act [33 USCS §§ 1251 et seq.]. No such permit shall issue if the Administrator objects to such issuance.
(b) State permit programs. At any time after the promulgation of the guidelines required by subsection (h)(2) of section 304 [304(i)(2)] of this Act [33 USCS § 1314(i)(2)], the Governor of each State desiring to administer its own permit program for discharges into navigable waters within its jurisdiction may submit to the Administrator a full and complete description of the program it proposes to establish and administer under State law or under an interstate compact. In addition, such State shall submit a statement from the attorney general (or the attorney for those State water pollution control agencies which have independent legal counsel), or from the chief legal officer in the case of an interstate agency, that the laws of such State, or the interstate compact, as the case may be, provide adequate authority to carry out the described program. The Administrator shall approve each such submitted program unless he determines that adequate authority does not exist: (1) To issue permits which-- (A) apply, and insure compliance with, any applicable requirements of sections 301, 302, 306, 307, and 403 [33 USCS §§ 1311, 1312, 1316, 1317, 1343]; (B) are for fixed terms not exceeding five years; and (C) can be terminated or modified for cause including, but not limited to, the following: (i) violation of any condition of the permit; (ii) obtaining a permit by misrepresentation, or failure to disclose fully all relevant facts; (iii) change in any condition that requires either a temporary or permanent reduction or elimination of the permitted discharge; (D) control the disposal of pollutants into wells; (2) (A) To issue permits which apply, and insure compliance with, all applicable requirements of section 308 of this Act [33 USCS § 1318] or (B) To inspect, monitor, enter, and require reports to at least the same extent as required in section 308 of this Act [33 USCS § 1318]; (3) To insure that the public, and any other State the waters of which may be affected, receive notice of each application for a permit and to provide an opportunity for public hearing before a ruling on each such application; (4) To insure that the Administrator receives notice of each application (including a copy thereof) for a permit; (5) To insure that any State (other than the permitting State), whose waters may be affected by the issuance of a permit may submit written recommendations to the permitting State (and the Administrator) with respect to any permit application and, if any part of such written recommendations are not accepted by the permitting State, that the permitting State will notify such affected State (and the Administrator) in writing of its failure to so accept such recommendations together with its reasons for so doing; (6) To insure that no permit will be issued if, in the judgment of the Secretary of the Army acting through the Chief of Engineers, after consultation with the Secretary of the department in which the Coast Guard is operating, anchorage and navigation of any of the navigable waters would be substantially impaired thereby; (7) To abate violations of the permit or the permit program, including civil and criminal penalties and other ways and means of enforcement; (8) To insure that any permit for a discharge from a publicly owned treatment works includes conditions to require the identification in terms of character and volume of pollutants of any significant source introducing pollutants subject to pretreatment standards under section 307(b) of this Act [33 USCS § 1317(b)] into such works and a program to assure compliance with such pretreatment standards by each such source, in addition to adequate notice to the permitting agency of (A) new introductions into such works of pollutants from any source which would be a new source as defined in section 306 [33 USCS § 1316] if such source were discharging pollutants, (B) new introductions of pollutants into such works from a source which would be subject to section 301 [33 USCS § 1311] if it were discharging such
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pollutants, or (C) a substantial change in volume or character of pollutants being introduced into such works by a source introducing pollutants into such works at the time of issuance of the permit. Such notice shall include information on the quality and quantity of effluent to be introduced into such treatment works and any anticipated impact of such change in the quantity or quality of effluent to be discharged from such publicly owned treatment works; and (9) To insure that any industrial user of any publicly owned treatment works will comply with sections 204(b), 307, and 308 [33 USCS §§ 1284(b), 1317, 1318].
(c) Suspension of Federal program upon submission of State program; withdrawal of approval of State program; return of State program to Administrator. (1) Not later than ninety days after the date on which a State has submitted a program (or revision thereof) pursuant to subsection (b) of this section, the Administrator shall suspend the issuance of permits under subsection (a) of this section as to those discharges subject to such program unless he determines that the State permit program does not meet the requirements of subsection (b) of this section or does not conform to the guidelines issued under section 304(h)(2) [304(i)(2)] of this Act [33 USCS § 1314(i)(2)]. If the Administrator so determines, he shall notify the State of any revisions or modifications necessary to conform to such requirements or guidelines. (2) Any State permit program under this section shall at all times be in accordance with this section and guidelines promulgated pursuant to section 304(h)(2) [304(i)(2)] of this Act [33 USCS § 1314(i)(2)]. (3) Whenever the Administrator determines after public hearing that a State is not administering a program approved under this section in accordance with requirements of this section, he shall so notify the State and, if appropriate corrective action is not taken within a reasonable time, not to exceed ninety days, the Administrator shall withdraw approval of such program. The Administrator shall not withdraw approval of any such program unless he shall first have notified the State, and made public, in writing, the reasons for such withdrawal. (4) Limitations on partial permit program returns and withdrawals. A State may return to the Administrator administration, and the Administrator may withdraw under paragraph (3) of this subsection approval, of-- (A) a State partial permit program approved under subsection (n)(3) only if the entire permit program being administered by the State department or agency at the time is returned or withdrawn; and (B) a State partial permit program approved under subsection (n)(4) only if an entire phased component of the permit program being administered by the State at the time is returned or withdrawn.
(d) Notification of Administrator. (1) Each State shall transmit to the Administrator a copy of each permit application received by such State and provide notice to the Administrator of every action related to the consideration of such permit application, including each permit proposed to be issued by such State. (2) No permit shall issue (A) if the Administrator within ninety days of the date of his notification under subsection (b)(5) of this section objects in writing to the issuance of such permit, or (B) of the Administrator within ninety days of the date of transmittal of the proposed permit by the State objects in writing to the issuance of such permit as being outside the guidelines and requirements of this Act [33 USCS §§ 1251 et seq.]. Whenever the Administrator objects to the issuance of a permit under this paragraph such written objection shall contain a statement of the reasons for such objection and the effluent limitations and conditions which such permit would include if it were issued by the Administrator. (3) The Administrator may, as to any permit application, waive paragraph (2) of this subsection. (4) In any case where, after the date of enactment of this paragraph [enacted Dec. 27, 1977], the Administrator, pursuant to paragraph (2) of this subsection, objects to the issuance of a permit, on request of the State, a public hearing shall be held by the Administrator on such objection. If the State does not resubmit such permit revised to meet such objection within 30 days after completion of the hearing, or, if no hearing is requested within 90 days after the date of such objection, the Administrator may issue the permit pursuant to subsection (a) of this section for such source in accordance with the guidelines and requirements of this Act [33 USCS §§ 1251 et seq.].
(e) Waiver of notification requirement. In accordance with guidelines promulgated pursuant to subsection (h)(2) of section 304 [304(i)(2)] of this Act [33 USCS § 1314(i)(2)], the Administrator is authorized to waive the requirements of
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subsection (d) of this section at the time he approves a program pursuant to subsection (b) of this section for any category (including any class, type, or size within such category) of point sources within the State submitting such program.
(f) Point source categories. The Administrator shall promulgate regulations establishing categories of point sources which he determines shall not be subject to the requirements of subsection (d) of this section in any State with a program approved pursuant to subsection (b) of this section. The Administrator may distinguish among classes, types, and sizes within any category of point sources.
(g) Other regulations for safe transportation, handling, carriage, storage, and stowage of pollutants. Any permit issued under this section for the discharge of pollutants into the navigable waters from a vessel or other floating craft shall be subject to any applicable regulations promulgated by the Secretary of the department in which the Coast Guard is operating, establishing specifications for safe transportation, handling, carriage, storage, and stowage of pollutants.
(h) Violation of permit conditions; restriction or prohibition upon introduction of pollutant by source not previously utilizing treatment works. In the event any condition of a permit for discharges from a treatment works (as defined in section 212 of this Act [33 USCS § 1292]) which is publicly owned is violated, a State with a program approved under subsection (b) of this section or the Administrator, where no State program is approved or where the Administrator determines pursuant to section 309(a) of this Act [33 USCS § 1319(a)] that a State with an approved program has not commenced appropriate enforcement action with respect to such permit, may proceed in a court of competent jurisdiction to restrict or prohibit the introduction of any pollutant into such treatment works by a source not utilizing such treatment works prior to the finding that such condition was violated.
(i) Federal enforcement not limited. Nothing in this section shall be construed to limit the authority of the Administrator to take action pursuant to section 309 of this Act [33 USCS § 1319].
(j) Public information. A copy of each permit application and each permit issued under this section shall be available to the public. Such permit application or permit, or portion thereof, shall further be available on request for the purpose of reproduction.
(k) Compliance with permits. Compliance with a permit issued pursuant to this section shall be deemed compliance, for purposes of sections 309 and 505 [33 USCS §§ 1319, 1365], with sections 301, 302, 306, 307, and 403 [33 USCS §§ 1311, 1312, 1316, 1317, 1343], except any standard imposed under section 307 [33 USCS § 1317] for a toxic pollutant injurious to human health. Until December 31, 1974, in any case where a permit for discharge has been applied for pursuant to this section, but final administrative disposition of such application has not been made, such discharge shall not be a violation of (1) section 301, 306, or 402 of this Act [33 USCS § 1311, 1316, or 1342], or (2) section 13 of the Act of March 3, 1899 [33 USCS § 407], unless the Administrator or other plaintiff proves that final administrative disposition of such application has not been made because of the failure of the applicant to furnish information reasonably required or requested in order to process the application. For the 180-day period beginning on the date of enactment of the Federal Water Pollution Control Act Amendments of 1972 [enacted Oct. 18, 1972], in the case of any point source discharging any pollutant or combination of pollutants immediately prior to such date of enactment which source is not subject to section 13 of the Act of March 3, 1899 [33 USCS § 407], the discharge by such source shall not be a violation of this Act [33 USCS §§ 1251 et seq.] if such a source applies for a permit for discharge pursuant to this section within such 180-day period.
(l) Limitation on permit requirement. (1) Agricultural return flows. The Administrator shall not require a permit under this section for discharges composed entirely of return flows from irrigated agriculture, nor shall the Administrator directly or indirectly, require any State to require such a permit. (2) Stormwater runoff from oil, gas, and mining operations. The Administrator shall not require a permit under this
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section, nor shall the Administrator directly or indirectly require any State to require a permit, for discharges of stormwater runoff from mining operations or oil and gas exploration, production, processing, or treatment operations or transmission facilities, composed entirely of flows which are from conveyances or systems of conveyances (including but not limited to pipes, conduits, ditches, and channels) used for collecting and conveying precipitation runoff and which are not contaminated by contact with, or do not come into contact with, any overburden, raw material, intermediate products, finished product, byproduct, or waste products located on the site of such operations.
(m) Additional pretreatment of conventional pollutants not required. To the extent a treatment works (as defined in section 212 of this Act [33 USCS § 1292]) which is publicly owned is not meeting the requirements of a permit issued under this section for such treatment works as a result of inadequate design or operation of such treatment works, the Administrator, in issuing a permit under this section, shall not require pretreatment by a person introducing conventional pollutants identified pursuant to section 304(a)(4) of this Act [33 USCS § 1314(a)(4)] into such treatment works other than pretreatment required to assure compliance with pretreatment standards under subsection (b)(8) of this section and section 307(b)(1) of this Act [33 USCS § 1317(b)(1)]. Nothing in this subsection shall affect the Administrator's authority under sections 307 and 309 of this Act [33 USCS §§ 1317, 1319], affect State and local authority under sections 307(b)(4) and 510 of this Act [33 USCS §§ 1317(b)(4), 1370], relieve such treatment works of its obligations to meet requirements established under this Act [33 USCS §§ 1251 et seq.], or otherwise preclude such works from pursuing whatever feasible options are available to meet its responsibility to comply with its permit under this section.
(n) Partial permit program. (1) State submission. The Governor of a State may submit under subsection (b) of this section a permit program for a portion of the discharges into the navigable waters in such State. (2) Minimum coverage. A partial permit program under this subsection shall cover, at a minimum, administration of a major category of the discharges into the navigable waters of the State or a major component of the permit program required by subsection (b). (3) Approval or major category partial permit programs. The Administrator may approve a partial permit program covering administration of a major category of discharges under this subsection if-- (A) such program represents a complete permit program and covers all of the discharges under the jurisdiction of a department or agency of the State; and (B) the Administrator determines that the partial program represents a significant and identifiable part of the State program required by subsection (b). (4) Approval of major component partial permit programs. The Administrator may approve under this subsection a partial and phased permit program covering administration of a major component (including discharge categories) of a State permit program required by subsection (b) if-- (A) the Administrator determines that the partial program represents a significant and identifiable part of the State program required by subsection (b); and (B) the State submits, and the Administrator approves, a plan for the State to assume administration by phases of the remainder of the State program required by subsection (b) by a specified date not more than 5 years after submission of the partial program under this subsection and agrees to make all reasonable efforts to assume such administration by such date.
(o) Anti-backsliding. (1) General prohibition. In the case of effluent limitations established on the basis of subsection (a)(1)(B) of this section, a permit may not be renewed, reissued, or modified on the basis of effluent guidelines promulgated under section 304(b) [33 USCS § 1314(b)] subsequent to the original issuance of such permit, to contain effluent limitations which are less stringent than the comparable effluent limitations in the previous permit. In the case of effluent limitations established on the basis of section 301(b)(1)(C) or section 303 (d) or (e) [33 USCS § 1311(b)(1)(C) or 1313(d) or (e)], a permit may not be renewed, reissued, or modified to contain effluent limitations which are less stringent than the comparable effluent limitations in the previous permit except in compliance with section 303(d)(4) [
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33 USCS § 1313(d)(4)]. (2) Exceptions. A permit with respect to which paragraph (1) applies may be renewed, reissued, or modified to contain a less stringent effluent limitation applicable to a pollutant if-- (A) material and substantial alterations or additions to the permitted facility occurred after permit issuance which justify the application of a less stringent effluent limitation; (B) (i) information is available which was not available at the time of permit issuance (other than revised regulations, guidance, or test methods) and which would have justified the application of a less stringent effluent limitation at the time of permit issuance; or (ii) the Administrator determines that technical mistakes or mistaken interpretations of law were made in issuing the permit under subsection (a)(1)(B); (C) a less stringent effluent limitation is necessary because of events over which the permittee has no control and for which there is no reasonably available remedy; (D) the permittee has received a permit modification under section 301(c), 301(g), 301(h), 301(i), 301(k), 301(n), or 316(a) [33 USCS § 1311(c), (g), (h), (i), (k), (n), or 1326(a)]; or (E) the permittee has installed the treatment facilities required to meet the effluent limitations in the previous permit and has properly operated and maintained the facilities but has nevertheless been unable to achieve the previous effluent limitations, in which case the limitations in the reviewed, reissued, or modified permit may reflect the level of pollutant control actually achieved (but shall not be less stringent than required by effluent guidelines in effect at the time of permit renewal, reissuance, or modification). Subparagraph (B) shall not apply to any revised waste load allocations or any alternative grounds for translating water quality standards into effluent limitations, except where the cumulative effect of such revised allocations results in a decrease in the amount of pollutants discharged into the concerned waters, and such revised allocations are not the result of a discharger eliminating or substantially reducing its discharge of pollutants due to complying with the requirements of this Act [33 USCS §§ 1251 et seq.] or for reasons otherwise unrelated to water quality. (3) Limitations. In no event may a permit with respect to which paragraph (1) applies be renewed, reissued, or modified to contain an effluent limitation which is less stringent than required by effluent guidelines in effect at the time the permit is renewed, reissued, or modified. In no event may such a permit to discharge into waters be renewed, reissued, or modified to contain a less stringent effluent limitation if the implementation of such limitation would result in a violation of a water quality standard under section 303 [33 USCS § 1313] applicable to such waters.
(p) Municipal and industrial stormwater discharges. (1) General rule. Prior to October 1, 1994, the Administrator or the State (in the case of a permit program approved under section 402 of this Act [this section]) shall not require a permit under this section for discharges composed entirely of stormwater. (2) Exceptions. Paragraph (1) shall not apply with respect to the following stormwater discharges: (A) A discharge with respect to which a permit has been issued under this section before the date of the enactment of this subsection [enacted Feb. 4, 1987]. (B) A discharge associated with industrial activity. (C) A discharge from a municipal separate storm sewer system serving a population of 250,000 or more. (D) A discharge from a municipal separate storm sewer system serving a population of 100,000 or more but less than 250,000. (E) A discharge for which the Administrator or the State, as the case may be, determines that the stormwater discharge contributes to a violation of a water quality standard or is a significant contributor of pollutants to waters of the United States. (3) Permit requirements. (A) Industrial discharges. Permits for discharges associated with industrial activity shall meet all applicable provisions of this section and section 301 [33 USCS § 1311]. (B) Municipal discharge. Permits for discharges from municipal storm sewers-- (i) may be issued on a system- or jurisdiction-wide basis; (ii) shall include a requirement to effectively prohibit non-stormwater discharges into the storm sewers; and
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(iii) shall require controls to reduce the discharge of pollutants to the maximum extent practicable, including management practices, control techniques and system, design and engineering methods, and such other provisions as the Administrator or the State determines appropriate for the control of such pollutants. (4) Permit application requirements. (A) Industrial and large municipal discharges. Not later than 2 years after the date of the enactment of this subsection [enacted Feb. 4, 1987], the Administrator shall establish regulations setting forth the permit application requirements for stormwater discharges described in paragraphs (2)(B) and (2)(C). Applications for permits for such discharges shall be filed no later than 3 years after such date of enactment [enacted Feb. 4, 1987]. Not later than 4 years after such date of enactment [enacted Feb. 4, 1987], the Administrator or the State, as the case may be, shall issue or deny each such permit. Any such permit shall provide for compliance as expeditiously as practicable, but in no event later than 3 years after the date of issuance of such permit. (B) Other municipal discharges. Not later than 4 years after the date of the enactment of this subsection [enacted Feb. 4, 1987], the Administrator shall establish regulations setting forth the permit application requirements for stormwater discharges described in paragraph (2)(D). Applications for permits for such discharges shall be filed no later than 5 years after such date of enactment [enacted Feb. 4, 1987]. Not later than 6 years after such date of enactment [enacted Feb. 4, 1987], the Administrator or the State, as the case may be, shall issue or deny each such permit. Any such permit shall provide for compliance as expeditiously as practicable, but in no event later than 3 years after the date of issuance of such permit. (5) Studies. The Administrator, in consultation with the States, shall conduct a study for the purposes of-- (A) identifying those stormwater discharges or classes of stormwater discharges for which permits are not required pursuant to paragraphs (1) and (2) of this subsection; (B) determining, to the maximum extent practicable, the nature and extent of pollutants in such discharges; and (C) establishing procedures and methods to control stormwater discharges to the extent necessary to mitigate impacts on water quality. Not later than October 1, 1988, the Administrator shall submit to Congress a report on the results of the study described in subparagraphs (A) and (B). Not later than October 1, 1989, the Administrator shall submit to Congress a report on the results of the study described in subparagraph (C). (6) Regulations. Not later than October 1, 1993, the Administrator, in consultation with State and local officials, shall issue regulations (based on the results of the studies conducted under paragraph (5)) which designate stormwater discharges, other than those discharges described in paragraph (2), to be regulated to protect water quality and shall establish a comprehensive program to regulate such designated sources. The program shall, at a minimum, (A) establish priorities, (B) establish requirements for State stormwater management programs, and (C) establish expeditious deadlines. The program may include performance standards, guidelines, guidance, and management practices and treatment requirements, as appropriate.
(q) Combined sewer overflows. (1) Requirement for permits, orders, and decrees. Each permit, order, or decree issued pursuant to this Act [33 USCS §§ 1251 et seq.] after the date of enactment of this subsection [enacted Dec. 21, 2000] for a discharge from a municipal combined storm and sanitary sewer shall conform to the Combined Sewer Overflow Control Policy signed by the Administrator on April 11, 1994 (in this subsection referred to as the "CSO control policy"). (2) Water quality and designated use review guidance. Not later than July 31, 2001, and after providing notice and opportunity for public comment, the Administrator shall issue guidance to facilitate the conduct of water quality and designated use reviews for municipal combined sewer overflow receiving waters. (3) Report. Not later than September 1, 2001, the Administrator shall transmit to Congress a report on the progress made by the Environmental Protection Agency, States, and municipalities in implementing and enforcing the CSO control policy.
(r) Discharges incidental to the normal operation of recreational vessels. No permit shall be required under this Act [33 USCS §§ 1251 et seq.] by the Administrator (or a State, in the case of a permit program approved under subsection (b)) for the discharge of any graywater, bilge water, cooling water, weather deck runoff, oil water separator effluent, or
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effluent from properly functioning marine engines, or any other discharge that is incidental to the normal operation of a vessel, if the discharge is from a recreational vessel.
HISTORY: (June 30, 1948, ch 758, Title IV, § 402, as added Oct. 18, 1972, P.L. 92-500, § 2, 86 Stat. 880; Dec. 27, 1977, P.L. 95-217, §§ 33(c), 54(c)(1), 65, 66, 91 Stat. 1577, 1591, 1599, 1600; Feb. 4, 1987, P.L. 100-4, Title IV, §§ 401-403, 404(a), (c) [(d)], 405, 101 Stat. 65-69; Oct. 31, 1992, P.L. 102-580, Title III, § 364, 106 Stat. 4862; Dec. 21, 1995, P.L. 104-66, Title II, Subtitle B, § 2021(e)(2), 109 Stat. 727; Dec. 21, 2000, P.L. 106-554, § 1(a)(4), 114 Stat. 2763; July 30, 2008, P.L. 110-288, § 2, 122 Stat. 2650.)
HISTORY; ANCILLARY LAWS AND DIRECTIVES
Explanatory notes: The bracketed reference "304(i)(2)" has been inserted in this section because Act Dec. 27, 1977, P.L. 95-217, § 50, 91 Stat. 1588, redesignated former § 304(h) of Act June 30, 1948, and any references thereto, as § 304(i) of such Act June 30, 1948. The amendment made by § 1(a)(4) of Act Dec. 21, 2000, P.L. 106-554, is based on § 112 of Title I of Division B of H.R. 5666 (114 Stat. 2763A-224), as introduced on Dec. 15, 2000, which was enacted into law by such § 1(a)(4).
Amendments:
1977. Act Dec. 27, 1977, in subsec. (b)(8), inserted "the identification in terms of character and volume of pollutants of any significant source introducing pollutants subject to pretreatment standards under section 307(b) of this Act into such works and a program to assure compliance with such pretreatment standards by each such source, in addition to"; in subsec. (d), in para. (2), inserted "Whenever the Administrator objects to the issuance of a permit under this paragraph such written objection shall contain a statement of the reasons for such objection and the effluent limitations and conditions which such permit would include if it were issued by the Administrator." and added para. (4); in subsec. (h), substituted "or where the Administrator determines pursuant to section 309(a) of this Act that a State with an approved program has not commenced appropriate enforcement action with respect to such permit," for a comma; and added subsec. (l).
1987. Act Feb. 4, 1987, in subsec. (a)(1), inserted the subpara. designators "(A)" and "(B)"; in subsec. (c), in para. (1), substituted "as to those discharges" for "as to those navigable waters", and added para. (4); in subsec. (l), inserted "Limitation on permit requirement." in the subsec. catchline, inserted "(1) agricultural return flows." before "The Administrator", and added para. (2); and added subsecs. (m)-(p).
1992. Act Oct. 31, 1992, in subsec. (p), in para. (1), substituted "October 1, 1994" for "October 1, 1992" and, in para. (6), substituted "October 1, 1993" for "October 1, 1992".
2000. Act Dec. 21, 2000 added subsec. (q).
2008. Act July 30, 2008, added subsec. (r).
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TITLE 33. NAVIGATION AND NAVIGABLE WATERS CHAPTER 26. WATER POLLUTION PREVENTION AND CONTROL GENERAL PROVISIONS
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33 USCS § 1362
§ 1362. Definitions
Except as otherwise specifically provided, when used in this Act [33 USCS §§ 1251 et seq.]: (1) The term "State water pollution control agency" means the State agency designated by the Governor having responsibility for enforcing State laws relating to the abatement of pollution. (2) The term "interstate agency" means an agency of two or more States established by or pursuant to an agreement or compact approved by the Congress, or any other agency of two or more States, having substantial powers or duties pertaining to the control of pollution as determined and approved by the Administrator. (3) The term "State" means a State, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and the Trust Territory of the Pacific Islands. (4) The term "municipality" means a city, town, borough, county, parish, district, association, or other public body created by or pursuant to State law and having jurisdiction over disposal of sewage, industrial wastes, or other wastes, or an Indian tribe or an authorized Indian tribal organization, or a designated and approved management agency under section 208 of this Act [33 USCS § 1288]. (5) The term "person" means an individual, corporation, partnership, association, State, municipality, commission, or political subdivision of a state, or any interstate body. (6) The term "pollutant" means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water. This term does not mean (A) " sewage from vessels or a discharge incidental to the normal operation of a vessel of the Armed Forces" within the meaning of section 312 of this Act [33 USCS § 1322]; or (B) water, gas, or other material which is injected into a well to facilitate production of oil or gas, or water derived in association with oil or gas production and disposed of in a well, if the well used either to facilitate production or for disposal purposes is approved by authority of the State in which the well is located, and if such State determines that such injection or disposal will not result in the degradation of ground or surface water resources. (7) The term "navigable waters" means the waters of the United States, including the territorial seas. (8) The term "territorial seas" means the belt of the seas measured from the line of ordinary low water along that
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portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters, and extending seaward a distance of three miles. (9) The term "contiguous zone" means the entire zone established or to be established by the United States under article 24 of the Convention of the Territorial Sea and the Contiguous Zone [15 UST § 1606]. (10) The term "ocean" means any portion of the high seas beyond the contiguous zone. (11) The term "effluent limitation" means any restriction established by a State or the Administrator on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into navigable waters, the waters of the contiguous zone, or the ocean, including schedules of compliance. (12) The term "discharge of a pollutant" and the term "discharge of pollutants" each means (A) any addition of any pollutant to navigable waters from any point source, (B) any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft. (13) The term "toxic pollutant" means those pollutants, or combinations of pollutants, including disease-causing agents, which after discharge and upon exposure, ingestion, inhalation or assimilation into any organism, either directly from the environment or indirectly by ingestion through food chains, will, on the basis of information available to the Administrator, cause death, disease, behavioral abnormalities, cancer, genetic mutations, physiological malfunctions (including malfunctions in reproduction) or physical deformations, in such organisms or their offspring. (14) The term "point source" means any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture. (15) The term "biological monitoring" shall mean the determination of the effects on aquatic life, including accumulation of pollutants in tissue, in receiving waters due to the discharge of pollutants (A) by techniques and procedures, including sampling of organisms representative of appropriate levels of the food chain appropriate to the volume and the physical, chemical, and biological characteristics of the effluent, and (B) at appropriate frequencies and locations. (16) The term "discharge" when used without qualification includes a discharge of a pollutant, and a discharge of pollutants. (17) The term "schedule of compliance" means a schedule of remedial measures including an enforceable sequence of actions or operations leading to compliance with an effluent limitation, other limitation, prohibition, or standard. (18) The term "industrial user" means those industries identified in the Standard Industrial Classification Manual, Bureau of the Budget, 1967, as amended and supplemented, under the category "Division D--Manufacturing" and such other classes of significant waste producers as, by regulation, the Administrator deems appropriate. (19) The term "pollution" means the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water. (20) The term "medical waste" means isolation wastes; infectious agents; human blood and blood products; pathological wastes; sharps; body parts; contaminated bedding; surgical wastes and potentially contaminated laboratory wastes; dialysis wastes; and such additional medical items as the Administrator shall prescribe by regulation. (21) Coastal recreation waters. (A) In general. The term "coastal recreation waters" means-- (i) the Great Lakes; and (ii) marine coastal waters (including coastal estuaries) that are designated under section 303(c) [33 USCS § 1313(c)] by a State for use for swimming, bathing, surfing, or similar water contact activities. (B) Exclusions. The term "coastal recreation waters" does not include-- (i) inland waters; or (ii) waters upstream of the mouth of a river or stream having an unimpaired natural connection with the open sea. (22) Floatable material. (A) In general. The term "floatable material" means any foreign matter that may float or remain suspended in the water column. (B) Inclusions. The term "floatable material" includes-- (i) plastic;
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(ii) aluminum cans; (iii) wood products; (iv) bottles; and (v) paper products. (23) Pathogen indicator. The term "pathogen indicator" means a substance that indicates the potential for human infectious disease. (24) Oil and gas exploration and production. The term "oil and gas exploration, production, processing, or treatment operations or transmission facilities" means all field activities or operations associated with exploration, production, processing, or treatment operations, or transmission facilities, including activities necessary to prepare a site for drilling and for the movement and placement of drilling equipment, whether or not such field activities or operations may be considered to be construction activities. (25) Recreational vessel. (A) In general. The term "recreational vessel" means any vessel that is-- (i) manufactured or used primarily for pleasure; or (ii) leased, rented, or chartered to a person for the pleasure of that person. (B) Exclusion. The term "recreational vessel" does not include a vessel that is subject to Coast Guard inspection and that-- (i) is engaged in commercial use; or (ii) carries paying passengers.
HISTORY: (June 30, 1948, ch 758, Title V, § 502, as added Oct. 18, 1972, P.L. 92-500, § 2, 86 Stat. 886; Dec. 27, 1977, P.L. 95-217, § 33(b), 91 Stat. 1577; Feb. 4, 1987, P.L. 100-4, Title V, §§ 502(a), 503, 101 Stat. 75; Nov. 18, 1988, P.L. 100-688, Title III, Subtitle B, § 3202(a), 102 Stat. 4154; Feb. 10, 1996, P.L. 104-106, Div A, Title III, Subtitle C, § 325(c)(3), 110 Stat. 259; Oct. 10, 2000, P.L. 106-284, § 5, 114 Stat. 875; Aug. 8, 2005, P.L. 109-58, Title III, Subtitle C, § 323, 119 Stat. 694; July 30, 2008, P.L. 110-288, § 3, 122 Stat. 2650.)
HISTORY; ANCILLARY LAWS AND DIRECTIVES
Amendments:
1977. Act Dec. 27, 1977, in para. (14), inserted "This term does not include return flows from irrigated agriculture.".
1987. Act Feb. 4, 1987, in para. (3), inserted "the Commonwealth of the Northern Marina Islands,"; and in para. (14), inserted "agricultural stormwater discharges and" following "does not include".
1988. Act Nov. 18, 1988, added para. (20).
1996. Act Feb. 10, 1996, in para. (6)(A), substituted " 'sewage from vessels or a discharge incidental to the normal operation of a vessel of the Armed Forces' " for " 'sewage from vessels' ".
2000. Act Oct. 10, 2000, added paras. (21)-(23).
2005. Act Aug. 8, 2005, added para. (24).
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TITLE 33. NAVIGATION AND NAVIGABLE WATERS CHAPTER 26. WATER POLLUTION PREVENTION AND CONTROL GENERAL PROVISIONS
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33 USCS § 1365
§ 1365. Citizen suits
(a) Authorization; jurisdiction. Except as provided in subsection (b) of this section and section 309(g)(6) [33 USCS § 1319(g)(6)], any citizen may commence a civil action on his own behalf-- (1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of (A) an effluent standard or limitation under this Act [33 USCS §§ 1251 et seq.] or (B) an order issued by the Administrator or a State with respect to such a standard or limitation, or (2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this Act [33 USCS §§ 1251 et seq.] which is not discretionary with the Administrator.
The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such an effluent standard or limitation, or such an order, or to order the Administrator to perform such act or duty, as the case may be, and to apply any appropriate civil penalties under section 309(d) of this Act [33 USCS § 1319(d)].
(b) Notice. No action may be commenced-- (1) under subsection (a)(1) of this section-- (A) prior to sixty days after the plaintiff has given notice of the alleged violation (i) to the Administrator, (ii) to the State in which the alleged violation occurs, and (iii) to any alleged violator of the standard, limitation, or order, or (B) if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order, but in any such action in a court of the United States any citizen may intervene as a matter of right. (2) under subsection (a)(2) of this section prior to sixty days after the plaintiff has given notice of such action to the Administrator, except that such action may be brought immediately after such notification in the case of an action under this section respecting a violation of sections 306 and 307(a) of this Act [33 USCS §§ 1316, 1317(a)]. Notice under this subsection
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shall be given in such manner as the Administrator shall prescribe by regulation.
(c) Venue; intervention by Administrator; United States interests protected. (1) Any action respecting a violation by a discharge source of an effluent standard or limitation or an order respecting such standard or limitation may be brought under this section only in the judicial district in which such source is located. (2) In such action under this section, the Administrator, if not a party, may intervene as a matter of right. (3) Protection of interests of United States. Whenever any action is brought under this section in a court of the United States, the plaintiff shall serve a copy of the complaint on the Attorney General and the Administrator. No consent judgment shall be entered in an action in which the United States is not a party prior to 45 days following the receipt of a copy of the proposed consent judgment by the Attorney General and the Administrator.
(d) Litigation costs. The court, in issuing any final order in any action brought pursuant to this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any prevailing or substantially prevailing party, whenever the court determines such award is appropriate. The court may, if a temporary restraining order or preliminary injunction is sought, require the filing of a bond or equivalent security in accordance with the Federal Rules of Civil Procedure.
(e) Statutory or common law rights not restricted. Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any effluent standard or limitation or to seek any other relief (including relief against the Administrator or a State agency).
(f) Effluent standard or limitation. For purposes of this section, the term "effluent standard or limitation under this Act" means (1) effective July 1, 1973, an unlawful act under subsection (a) of section 301 of this Act [33 USCS § 1311(a)]; (2) an effluent limitation or other limitation under section 301 or 302 of this Act [33 USCS § 1311 or 1312]; (3) standard of performance under section 306 of this Act [33 USCS § 1316]; (4) prohibition, effluent standard or pretreatment standards under section 307 of this Act [33 USCS § 1317]; (5) certification under section 401 of this Act [33 USCS § 1341]; (6) a permit or condition thereof issued under section 402 of this Act [33 USCS § 1342], which is in effect under this Act [33 USCS §§ 1251 et seq.] (including a requirement applicable by reason of section 313 of this Act [33 USCS § 1323]); or (7) a regulation under section 405(d) of this Act [33 USCS § 1345(d)][,].
(g) "Citizen" defined. For the purposes of this section the term "citizen" means a person or persons having an interest which is or may be adversely affected.
(h) Civil action by State Governors. A Governor of a State may commence a civil action under subsection (a), without regard to the limitations of subsection (b) of this section, against the Administrator where there is alleged a failure of the Administrator to enforce an effluent standard or limitation under this Act [33 USCS §§ 1251 et seq.] the violation of which is occurring in another State and is causing an adverse effect on the public health or welfare in his State, or is causing a violation of any water quality requirement in his State.
HISTORY: (June 30, 1948, ch 758, Title V, § 505, as added Oct. 18, 1972, P.L. 92-500, § 2, 86 Stat. 888; Feb. 4, 1987, P.L. 100-4, Title III, § 314(c), Title IV, § 406(d)(2), Title V, §§ 504, 505(c), 101 Stat. 49, 73, 75, 76.)
HISTORY; ANCILLARY LAWS AND DIRECTIVES
References in text: The "Federal Rules of Civil Procedure", referred to in subsec. (d), appear as USCS Court Rules, Federal Rules of
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TITLE 33. NAVIGATION AND NAVIGABLE WATERS CHAPTER 26. WATER POLLUTION PREVENTION AND CONTROL GENERAL PROVISIONS
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33 USCS § 1369
§ 1369. Administrative procedure and judicial review
(a) Subpenas. (1) For purposes of obtaining information under section 305 of this Act [33 USCS § 1315], or carrying out section 507(e) of this Act [33 USCS § 1367(e)], the Administrator may issue subpenas for the attendance and testimony of witnesses and the production of relevant papers, books, and documents, and he may administer oaths. Except for effluent date, upon a showing satisfactory to the Administrator that such papers, books, documents, or information or particular part thereof, if made public, would divulge trade secrets or secret processes, the Administrator shall consider such record, report, or information or particular portion thereof confidential in accordance with the purposes of section 1905 of title 18 of the United States Code [18 USCS § 1905], except that such paper, book, document, or information may be disclosed to other officers, employees, or authorized representatives of the United States concerned with carrying out this Act [33 USCS §§ 1251 et seq.], or when relevant in any proceeding under this Act [33 USCS §§ 1251 et seq.]. Witnesses summoned shall be paid the same fees and mileage that are paid witnesses in the courts of the United States. In case of contumacy or refusal to obey a subpena served upon any person under this subsection, the district court of the United States for any district in which such person is found or resides or transacts business, upon application by the United States and after notice to such person, shall have jurisdiction to issue an order requiring such person to appear and give testimony before the Administrator, to appear and produce papers, books, and documents before the Administrator, or both, and any failure to obey such order of the court may be punished by such court as a contempt thereof. (2) The district courts of the United States are authorized, upon application by the Administrator, to issue subpenas for attendance and testimony of witnesses and the production of relevant papers, books, and documents, for purposes of obtaining information under sections 304(b) and (c) of this Act [33 USCS § 1314(b), (c)]. Any papers, books, documents, or other information or part thereof, obtained by reason of such a subpena shall be subject to the same requirements as are provided in paragraph (1) of this subsection.
(b) Review of the Administrator's actions; selection of court; fees. (1) Review of the Administrator's action (A) in promulgating any standard of performance under section 306 [33 USCS § 1316], (B) in making any determination pursuant to section 306(b)(1)(C), (C) in promulgating any effluent
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standard, prohibition, or pretreatment standard under section 307 [33 USCS § 1317], (D) in making any determination as to a State permit program submitted under section 402(b) [33 USCS § 1342(b)], (E) in approving or promulgating any effluent limitation or other limitation under section 301, 302, 306, or 405, [33 USCS § 1311, 1312, 1316 or 1345], (F) in issuing or denying any permit under section 402 [33 USCS § 1342], and (G) in promulgating any individual control strategy under section 304(l) [33 USCS § 1314(l)], may be had by any interested person in the Circuit Court of Appeals of the United States for the Federal judicial district in which such person resides or transacts business which is directly affected by such action upon application by such person. Any such application shall be made within 120 days from the date of such determination, approval, promulgation, issuance or denial, or after such date only if such application is based solely on grounds which arose after such 120th day. (2) Action of the Administrator with respect to which review could have been obtained under paragraph (1) of this subsection shall not be subject to judicial review in any civil or criminal proceeding for enforcement. (3) Award of fees. In any judicial proceeding under this subsection, the court may award costs of litigation (including reasonable attorney and expert witness fees) to any prevailing or substantially prevailing party whenever it determines that such award is appropriate.
(c) Additional evidence. In any judicial proceeding brought under subsection (b) of this section in which review is sought of a determination under this Act [33 USCS §§ 1251 et seq.] required to be made on the record after notice and opportunity for hearing, if any party applies to the court for leave to adduce additional evidence, and shows to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the proceeding before the Administrator, the court may order such additional evidence (and evidence in rebuttal thereof) to be taken before the Administrator, in such manner and upon such terms and conditions as the court may deem proper. The Administrator may modify his findings as to the facts, or make new findings, by reason of the additional evidence so taken and he shall file such modified or new findings, and his recommendation, if any, for the modification or setting aside of his original determination, with the return of such additional evidence.
HISTORY: (June 30, 1948, ch 758, Title V, § 509, as added Oct. 18, 1972, P.L. 92-500, § 2, 86 Stat. 891; Dec. 28, 1973, P.L. 93-207, § 1(6), 87 Stat. 906; Feb. 4, 1987, P.L. 100-4, Title III, § 308(b), Title IV, § 406(d)(3), Title V, § 505(a), (b), 101 Stat. 39, 73, 75; Jan. 8, 1988, P.L. 100-236, § 2, 101 Stat. 1732.)
HISTORY; ANCILLARY LAWS AND DIRECTIVES
References in text: "Section 306(b)(1)(C)", referred to in this section, is an apparent reference to section 306(b)(1) which appears as 33 USCS § 1316(b)(1) inasmuch as section 306 does not contain a subpara. (C) in subsec. (b)(1).
Amendments:
1973. Act Dec. 28, 1973, in subsec. (b)(1)(C), substituted "pretreatment" for "treatment".
1987. Act Feb. 4, 1987, in subsec (b), in para. (1), in subpara. (E), substituted "306, or 405" for "or 306", substituted "(F)" for "and (F)", inserted "and (G) in promulgating any individual control strategy under section 304(l),", substituted "transacts business which is directly affected by such action" for "transacts such business", and substituted "120" and "120th" for "ninety" and ninetieth", respectively, and added paras. (3) and (4).
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TITLE 43. PUBLIC LANDS CHAPTER 33. ALASKA NATIVE CLAIMS SETTLEMENT
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43 USCS § 1606
§ 1606. Regional corporations
(a) Division of Alaska into twelve geographic regions; common heritage and common interest of region; area of region commensurate with operations of Native association; boundary disputes, arbitration. For purposes of this Act, the State of Alaska shall be divided by the Secretary within one year after the date of enactment at this Act [enacted Dec. 18, 1971] into twelve geographic regions, with each region composed as far as practicable of Natives having a common heritage and sharing common interests. In the absence of good cause shown to the contrary, such regions shall approximate the areas covered by the operations of the following existing Native associations: (1) Arctic Slope Native Association (Barrow, Point Hope); (2) Bering Straits Association (Seward Peninsula, Unalakleet, Saint Lawrence Island); (3) Northwest Alaska Native Association (Kotzebue); (4) Association of Village Council Presidents (southwest coast, all villages in the Bethel area, including all villages on the Lower Yukon River and the Lower Kuskokwim River); (5) Tanana Chiefs' Conference (Koyukuk, Middle and Upper Yukon Rivers, Upper Kuskokwim, Tanana River); (6) Cook Inlet Association (Kenai, Tyonek, Eklutna, Iliamna); (7) Bristol Bay Native Association (Dillingham, Upper Alaska Peninsula); (8) Aleut League (Aleutian Islands, Pribilof Islands and that part of the Alaska Peninsula which is in the Aleut League); (9) Chugach Native Association (Cordova, Tatitlek, Port Graham, English Bay, Valdez, and Seward); (10) Tlingit-Haida Central Council (southeastern Alaska, including Metlakatla); (11) Kodiak Area Native Association (all villages on and around Kodiak Island); and (12) Copper River Native Association (Copper Center, Glennallen, Chitina, Mentasta).
Any dispute over the boundaries of a region or regions shall be resolved by a board of arbitrators consisting of one person selected by each of the Native associations involved, and an additional one or two persons, whichever is needed to make an odd number of arbitrators, such additional person or persons to be selected by the arbitrators selected by the Native associations involved.
(b) Region mergers; limitation. The Secretary may, on request made within one year of the date of enactment of this
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Act [enacted Dec. 10, 1971], by representative and responsible leaders of the Native associations listed in subsection (a), merge two or more of the twelve regions: Provided, That the twelve regions may not be reduced to less than seven, and there may be no fewer than seven Regional Corporations.
(c) Establishment of thirteenth region for nonresident Natives; majority vote; Regional Corporation for thirteenth region. If a majority of all eligible Natives eighteen years of age or older who are not permanent residents of Alaska elect, pursuant to subsection 5(c) [43 USCS § 1604(c)], to be enrolled in a thirteenth region for Natives who are non-residents of Alaska, the Secretary shall establish such a region for the benefit of the Natives who elected to be enrolled therein, and they may establish a Regional Corporation pursuant to this Act.
(d) Incorporation; business for profits; eligibility for benefits; provisions in articles for carrying out chapter. Five incorporators within each region, named by the Native association in the region, shall incorporate under the laws of Alaska a Regional Corporation to conduct business for profit, which shall be eligible for the benefits of this Act so long as it is organized and functions in accordance with this Act. The articles of incorporation shall include provisions necessary to carry out the terms of this Act.
(e) Original articles and bylaws: approval by Secretary prior to filing, submission for approval; amendments to articles: approval by Secretary; withholding approval in event of creation of inequities among Native individuals or groups. The original articles of incorporation and bylaws shall be approved by the Secretary before they are filed, and they shall be submitted for approval within eighteen months after the date of enactment of this Act [enacted Dec. 18, 1971]. The articles of incorporation may not be amended during the Regional Corporation's first five years without the approval of the Secretary. The Secretary may withhold approval under this section if in his judgment inequities among Native individuals or groups of Native individuals would be created.
(f) Board of directors; management; stockholders; provisions in articles or bylaws for number, term, and method of election. The management of the Regional Corporation shall be vested in a board of directors, all of whom, with the exception of the initial board, shall be stockholders over the age of eighteen. The number, terms, and method of election of members of the board of directors shall be fixed in the articles of incorporation or bylaws of the Regional Corporation.
(g) Issuance of stock. (1) Settlement common stock. (A) The Regional Corporation shall be authorized to issue such number of shares of Settlement Common Stock (divided into such classes as may be specified in the articles of incorporation to reflect the provisions of this Act as may be needed to issue one hundred shares of stock to each Native enrolled in the region pursuant to section 5 [43 USCS § 1604]. (B) (i) A Regional Corporation may amend its articles of incorporation to authorize the issuance of additional shares of Settlement Common Stock to-- (I) Natives born after December 18, 1971, and, at the further option of the Corporation, descendants of Natives born after December 18, 1971, (II) Natives who were eligible for enrollment pursuant to section 5 [43 USCS § 1604] but were not so enrolled, or (III) Natives who have attained the age of 65, for no consideration or for such consideration and upon such terms and conditions as may be specified in such amendment or in a resolution approved by the board of directors pursuant to authority expressly vested in the board by the amendment. The amendment to the articles of incorporation may specify which class of Settlement Common Stock shall be issued to the various groups of Natives. (ii) Not more than one hundred shares of Settlement Common Stock shall be issued to any one individual pursuant to clause (i).
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(iii) Conditions on certain stock. (I) In general. An amendment under clause (i) may provide that Settlement Common Stock issued to a Native pursuant to the amendment (or stock issued in exchange for that Settlement Common Stock pursuant to subsection (h)(3) or section 29(c)(3)(D) [43 USCS § 1626(c)(3)(D)]) shall be subject to 1 or more of the conditions described in subclause (II). (II) Conditions. A condition referred to in subclause (I) is a condition that-- (aa) the stock described in that subclause shall be deemed to be canceled on the death of the Native to whom the stock is issued, and no compensation for the cancellation shall be paid to the estate of the deceased Native or any person holding the stock; (bb) the stock shall carry limited or no voting rights; and (cc) the stock shall not be transferred by gift under subsection (h)(1)(C)(iii). (iv) Settlement Common Stock issued pursuant to clause (i) shall not carry rights to share in distributions made to shareholders pursuant to subsection (j) and (m) unless, prior to the issuance of such stock, a majority of the class of existing holders of Settlement Common Stock carrying such rights separately approve the granting of such rights. The articles of incorporation of the Regional Corporation shall be deemed to be amended to authorize such class vote. (C) (i) A Regional Corporation may amend its articles of incorporation to authorize the issuance of additional shares of Settlement Common Stock as a dividend or other distribution (without regard to surplus of the corporation under the laws of the State) upon each outstanding share of Settlement Common Stock issued pursuant to subparagraphs (A) and (B). (ii) The amendment authorized by clause (i) may provide that shares of Settlement Common Stock issued as a dividend or other distribution shall constitute a separate class of stock with greater per share voting power than Settlement Common Stock issued pursuant to subparagraphs (A) and (B). (2) Other forms of stock. (A) A Regional Corporation may amend its articles of incorporation to authorize the issuance of shares of stock other than Settlement Common Stock in accordance with the provisions of this paragraph. Such amendment may provide that-- (i) preemptive rights of shareholders under the laws of the State shall not apply to the issuance of such shares, or (ii) issuance of such shares shall permanently preclude the corporation from-- (I) conveying assets to a Settlement Trust, or (II) issuing shares of stock without adequate consideration as required under the laws of the State. (B) The amendment authorized by subparagraph (A) may provide that the stock to be issued shall be one or more of the following-- (i) divided into classes and series within classes, with preferences, limitations, and relative rights, including, without limitation-- (I) dividend rights, (II) voting rights, and (III) liquidation preferences; (ii) made subject to one or more of-- (I) the restrictions on alienation described in clauses (i), (ii), and (iv) of subsection (h)(1)(B), and (II) the restriction described in paragraph (1)(B)(iii); and (iii) restricted in issuance to-- (I) Natives who have attained the age of sixty-five; (II) other identifiable groups of Natives or identifiable groups of descendants of Natives defined in terms of general applicability and not in any way by reference to place of residence or family; (III) Settlement Trusts; or (IV) entities established for the sole benefit of Natives or descendants of Natives, in which the classes of beneficiaries are defined in terms of general applicability and not in any way by reference to place of residence, family, or position as an officer, director, or employee of a Native Corporation. (C) The amendment authorized by subparagraph (A) shall provide that the additional shares of stock shall be
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issued-- (i) as a dividend or other distribution (without regard to surplus of the corporation under the laws of the State) upon all outstanding shares of stock of any class or series, or (ii) for such consideration as may be permitted by law (except that this requirement may be waived with respect to issuance of stock to the individuals or entities described in subparagraph (B)(iii)). (D) During any period in which alienability restrictions are in effect, no stock whose issuance is authorized by subparagraph (A) shall be-- (i) issued to, or for the benefit of, a group of individuals composed only or principally of employees, officers, and directors of the corporation; or (ii) issued more than thirteen months after the date on which the vote of the shareholders on the amendment authorizing the issuance of such stock occurred if, as a result of the issuance, the outstanding shares of Settlement Common Stock will represent less than a majority of the total voting power of the corporation for the purpose of electing directors. (3) Disclosure requirements. (A) An amendment to the articles of incorporation of a Regional Corporation authorized by paragraph (2) shall specify-- (i) the maximum number of shares of any class or series of stock that may be issued, and (ii) the maximum number of votes that may be held by such shares. (B) (i) If the board of directors of a Regional Corporation intends to propose an amendment pursuant to paragraph (2) which would authorize the issuance of classes or series of stock that, singly or in combination, could cause the outstanding shares of Settlement Common Stock to represent less than a majority of the total voting power of the corporation for the purposes of electing directors, the shareholders of such corporation shall be expressly so informed. (ii) Such information shall be transmitted to the shareholders in a separate disclosure statement or in another informational document in writing or in recorded sound form both in English and any Native language used by a shareholder of such corporation. Such statement or informational document shall be transmitted to the shareholders at least sixty days prior to the date on which such proposal is to be submitted for a vote. (iii) If not later than thirty days after issuance of such disclosure statement or informational document the board of directors receives a prepared concise statement setting forth arguments in opposition to the proposed amendment together with a request for distribution thereof signed by the holders of at least 10 per centum of the outstanding shares of Settlement Common Stock, the board shall either distribute such statement to the shareholders or provide to the requesting shareholders a list of all shareholder's names and addresses so that the requesting shareholders may distribute such statement. (4) Savings. (A) (i) No shares of stock issued pursuant to paragraphs (1)(C) and (2) shall carry rights to share in distributions made to shareholders pursuant to subsections (j) and (m). No shares of stock issued pursuant to paragraph (1)(B) shall carry such rights unless authorized pursuant to paragraph (1)(B)(iv). (ii) Notwithstanding the issuance of additional shares of stock pursuant to paragraphs [paragraph] (1)(B), (1)(C), or (2), a Regional Corporation shall apply the ratio last computed pursuant to subsection (m) prior to the date of the enactment of the Alaska Native Claims Settlement Act Amendments of 1987 [enacted Feb. 3, 1988] for purposes of distributing funds pursuant to subsections (j) and (m). (B) The issuance of additional shares of stock pursuant to paragraphs (1)(B), (1)(C), or (2) shall not affect the division and distribution of revenues pursuant to subsection (i). (C) No provision of this Act shall limit the right of a Regional Corporation to take an action authorized by the laws of the State unless such action is inconsistent with the provisions of this Act.
(h) Settlement Common Stock. (1) Rights and restrictions. (A) Except as otherwise expressly provided in this Act, Settlement Common Stock of a Regional Corporation shall-- (i) carry a right to vote in elections for the board of directors and on such other questions as properly may be presented to shareholders;
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(ii) permit the holder to receive dividends or other distributions from the corporation; and (iii) vest in the holder all rights of a shareholder in a business corporation organized under the laws of the State. (B) Except as otherwise provided in this subsection, Settlement Common Stock, inchoate rights thereto, and rights to dividends or distributions declared with respect thereto shall not be-- (i) sold; (ii) pledged; (iii) subjected to a lien or judgment execution; (iv) assigned in present or future; (v) treated as an asset under-- (I) title 11 of the United States Code or any successor statute, (II) any other insolvency or moratorium law, or (III) other laws generally affecting creditors' rights; or (vi) otherwise alienated. (C) Notwithstanding the restrictions set forth in subparagraph (B), Settlement Common Stock may be transferred to a Native or a descendant of a Native-- (i) pursuant to a court decree of separation, divorce, or child support; (ii) by a holder who is a member of a professional organization, association, or board that limits his or her ability to practice his or her profession because he or she holds Settlement Common Stock; or (iii) as an inter vivos gift from a holder to his or her child, grandchild, great-grandchild, niece, nephew, or (if the holder has reached the age of majority as defined by the laws of the State of Alaska) brother or sister, notwithstanding an adoption, relinquishment, or termination of parental rights that may have altered or severed the legal relationship between the gift donor and recipient. (2) Inheritance of settlement common stock. (A) Upon the death of a holder of Settlement Common Stock, ownership of such stock (unless canceled in accordance with subsection (g)(1)(B)(iii)) shall be transferred in accordance with the lawful will of such holder or pursuant to applicable laws of intestate succession. If the holder fails to dispose of his or her stock by will and has no heirs under applicable laws of intestate succession, the stock shall escheat to the issuing Regional Corporation and be canceled. (B) The issuing Regional Corporation shall have the right to purchase at fair value Settlement Common Stock transferred pursuant to applicable laws of intestate succession to a person not a Native or a descendant of a Native after the date of the enactment of the Alaska Native Claims Settlement Act Amendments of 1987 [enacted Feb. 3, 1988] if-- (i) the corporation-- (I) amends its articles of incorporation to authorize such purchases, and (II) gives the person receiving such stock written notice of its intent to purchase within ninety days after the date that the corporation either determines the decedent's heirs in accordance with the laws of the State or receives notice that such heirs have been determined, whichever later occurs; and (ii) the person receiving such stock fails to transfer the stock pursuant to paragraph (1)(C)(iii) within sixty days after receiving such written notice. (C) Settlement Common Stock of a Regional Corporation-- (i) transferred by will or pursuant to applicable laws of intestate succession after the date of the enactment of the Alaska Native Claims Settlement Act Amendments of 1987 [enacted Feb. 3, 1988], or (ii) transferred by any means prior to the date of the enactment of the Alaska Native Claims Settlement Act Amendments of 1987 [enacted Feb. 3, 1988], to a person not a Native or a descendant of a Native shall not carry voting rights. If at a later date such stock is lawfully transferred to a Native or a descendant of a Native, voting rights shall be automatically restored. (3) Replacement common stock. (A) On the date on which alienability restrictions terminate in accordance with the provisions of section 37 [43 USCS § 1629c], all Settlement Common Stock previously issued by a Regional Corporation shall be deemed canceled, and shares of Replacement Common Stock of the appropriate class shall be issued to each shareholder, share for share, subject only to subparagraph (B) and to such restrictions consistent with this Act as may be provided by the articles of
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incorporation of the corporation or in agreements between the corporation and individual shareholders. (B) (i) Replacement Common Stock issued in exchange for Settlement Common Stock issued subject to the restriction authorized by subsection (g)(1)(B)(iii) shall bear a legend indicating that the stock will eventually be canceled in accordance with the requirements of that subsection. (ii) Prior to the termination of alienability restrictions, the board of directors of the corporation shall approve a resolution to provide that each share of Settlement Common Stock carrying the right to share in distributions made to shareholders pursuant to subsections (j) and (m) shall be exchanged either for-- (I) a share of Replacement Common Stock that carries such right, or (II) a share of Replacement Common Stock that does not carry such right together with a separate, non-voting security that represents only such right. (iii) Replacement Common Stock issued in exchange for a class of Settlement Common Stock carrying greater per share voting power than Settlement Common Stock issued pursuant to subsections (g)(1)(A) and (g)(1)(B) shall carry such voting power and be subject to such other terms as may be provided in the amendment to the articles of incorporation authorizing the issuance of such class of Settlement Common Stock. (C) The articles of incorporation of the Regional Corporation shall be deemed amended to authorize the issuance of Replacement Common Stock and the security described in subparagraph (B)(ii)(II). (D) Prior to the date on which alienability restrictions terminate, a Regional Corporation may amend its articles of incorporation to impose upon Replacement Common Stock one or more of the following-- (i) a restriction denying voting rights to any holder of Replacement Common Stock who is not a Native or a descendant of a Native; (ii) a restriction granting the Regional Corporation, or the Regional Corporation and members of the shareholder's immediate family who are Natives or descendants of Natives, the first right to purchase, on reasonable terms, the Replacement Common Stock of the shareholder prior to the sale or transfer of such stock (other than a transfer by will or intestate succession) to any other party, including a transfer in satisfaction of a lien, writ of attachment, judgment execution, pledge, or other encumbrance; and (iii) any other term, restriction, limitation, or provision authorized by the laws of the State. (E) Replacement Common Stock shall not be subjected to a lien or judgment execution based upon any asserted or unasserted legal obligation of the original recipient arising prior to the issuance of such stock. (4) (A) As used in this paragraph, the term "Cook Inlet Regional Corporation" means Cook Inlet Region, Incorporated. (B) The Cook Inlet Regional Corporation may, by an amendment to its articles of incorporation made in accordance with the voting standards under section 36(d)(1) [43 USCS § 1629b(d)(1)], purchase Settlement Common Stock of the Cook Inlet Regional Corporation and all rights associated with the stock from the shareholders of Cook Inlet Regional Corporation in accordance with any provisions included in the amendment that relate to the terms, procedures, number of offers to purchase, and timing of offers to purchase. (C) Subject to subparagraph (D), and notwithstanding paragraph (1)(B), the shareholders of Cook Inlet Regional Corporation may, in accordance with an amendment made pursuant to subparagraph (B), sell the Settlement Common Stock of the Cook Inlet Regional Corporation to itself. (D) No sale or purchase may be made pursuant to this paragraph without the prior approval of the board of directors of Cook Inlet Regional Corporation. Except as provided in subparagraph (E), each sale and purchase made under this paragraph shall be made pursuant to an offer made on the same terms to all holders of Settlement Common Stock of the Cook Inlet Regional Corporation. (E) To recognize the different rights that accrue to any class or series of shares of Settlement Common Stock owned by stockholders who are not residents of a Native village (referred to in this paragraph as "non-village shares"), an amendment made pursuant to subparagraph (B) shall authorize the board of directors (at the option of the board) to offer to purchase-- (i) the non-village shares, including the right to share in distributions made to shareholders pursuant to subsections (j) and (m) (referred to in this paragraph as "nonresident distribution rights"), at a price that includes a premium, in addition to the amount that is offered for the purchase of other village shares of Settlement Common Stock of the Cook Inlet Regional Corporation, that reflects the value of the nonresident distribution rights; or
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(ii) non-village shares without the nonresident distribution rights associated with the shares. (F) Any shareholder who accepts an offer made by the board of directors pursuant to subparagraph (E)(ii) shall receive, with respect to each non-village share sold by the shareholder to the Cook Inlet Regional Corporation-- (i) the consideration for a share of Settlement Common Stock offered to shareholders of village shares; and (ii) a security for only the nonresident rights that attach to such share that does not have attached voting rights (referred to in this paragraph as a "non-voting security"). (G) An amendment made pursuant to subparagraph (B) shall authorize the issuance of a non-voting security that-- (i) shall, for purposes of subsections (j) and (m), be treated as a non-village share with respect to-- (I) computing distributions under such subsections; and (II) entitling the holder of the share to the proportional share of the distributions made under such subsections; (ii) may be sold to Cook Inlet Region, Inc.; and (iii) shall otherwise be subject to the restrictions under paragraph (1)(B). (H) Any shares of Settlement Common Stock purchased pursuant to this paragraph shall be canceled on the conditions that-- (i) non-village shares with the nonresident rights that attach to such shares that are purchased pursuant to this paragraph shall be considered to be-- (I) outstanding shares; and (II) for the purposes of subsection (m), shares of stock registered on the books of the Cook Inlet Regional Corporation in the names of nonresidents of villages; (ii) any amount of funds that would be distributable with respect to non-village shares or non-voting securities pursuant to subsection (j) or (m) shall be distributed by Cook Inlet Regional Corporation to itself; and (iii) village shares that are purchased pursuant to this paragraph shall be considered to be-- (I) outstanding shares, and (II) for the purposes of subsection (k) shares of stock registered on the books of the Cook Inlet Regional Corporation in the names of the residents of villages. (I) Any offer to purchase Settlement Common Stock made pursuant to this paragraph shall exclude from the offer-- (i) any share of Settlement Common Stock held, at the time the offer is made, by an officer (including a member of the board of directors) of Cook Inlet Regional Corporation or a member of the immediate family of the officer; and (ii) any share of Settlement Common Stock held by any custodian, guardian, trustee, or attorney representing a shareholder of Cook Inlet Regional Corporation in fact or law, or any other similar person, entity, or representative. (J) (i) The board of directors of Cook Inlet Regional Corporation, in determining the terms of an offer to purchase made under this paragraph, including the amount of any premium paid with respect to a non-village share, may rely upon the good faith opinion of a recognized firm of investment bankers or valuation experts. (ii) Neither Cook Inlet Regional Corporation nor a member of the board of directors or officers of Cook Inlet Regional Corporation shall be liable for damages resulting from terms made in an offer made in connection with any purchase of Settlement Common Stock if the offer was made-- (I) in good faith; (II) in reliance on a determination made pursuant to clause (i); and (III) otherwise in accordance with this paragraph. (K) The consideration given for the purchase of Settlement Common Stock made pursuant to an offer to purchase that provides for such consideration may be in the form of cash, securities, or a combination of cash and securities, as determined by the board of directors of Cook Inlet Regional Corporation, in a manner consistent with an amendment made pursuant to subparagraph (B). (L) Sale of Settlement Common Stock in accordance with this paragraph shall not diminish a shareholder's status as an Alaska Native or descendant of a Native for the purpose of qualifying for those programs, benefits and services or other rights or privileges set out for the benefit of Alaska Natives and Native Americans. Proceeds from the sale of Settlement Common Stock shall not be excluded in determining eligibility for any needs-based programs that may be provided by Federal, State or local agencies.
(i) Certain natural resource revenues; distribution among twelve Regional Corporations; computation of amount;
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subsection inapplicable to thirteenth Regional Corporation. (1) (A) Except as provided by subparagraph (B), 70 percent of all revenues received by each Regional Corporation from the timber resources and subsurface estate patented to it pursuant to this Act shall be divided annually by the Regional Corporation among all twelve Regional Corporations organized pursuant to this section according to the number of Natives enrolled in each region pursuant to section 5 [43 USCS § 1604]. The provisions of this subsection shall not apply to the thirteenth Regional Corporation if organized pursuant to subsection (c) hereof. (B) In the case of the sale, disposition, or other use of common varieties of sand, gravel, stone, pumice, peat, clay, or cinder resources made during a fiscal year ending after the date of enactment of this subparagraph [enacted Oct. 31, 1998], the revenues received by a Regional Corporation shall not be subject to division under subparagraph (A). Nothing in this subparagraph is intended to or shall be construed to alter the ownership of such sand, gravel, stone, pumice, peat, clay, or cinder resources. (2) For purposes of this subsection, the term "revenues" does not include any benefit received or realized for the use of losses incurred or credits earned by a Regional Corporation.
(j) Corporate funds and other net income, distribution among: stockholders of Regional Corporations; Village Corporations and nonresident stockholders; and stockholders of thirteenth Regional Corporation. During the five years following the enactment of this Act [enacted Dec. 18, 1971], not less than 10% of all corporate funds received by each of the twelve Regional Corporations under section 6 [43 USCS § 1605] (Alaska Native Fund), and under subsection (i) (revenues from the timber resources and subsurface estate patented to it pursuant to this Act), and all other net income, shall be distributed among the stockholders of the twelve Regional Corporations. Not less than 45% of funds from such sources during the first five-year period, and 50% thereafter, shall be distributed among the Village Corporations in the region and the class of stockholders who are not residents of those villages, as provided in subsection to it. In the case of the thirteenth Regional Corporation, if organized, not less than 50% of all corporate funds received under section 6 [43 USCS § 1605] shall be distributed to the stockholders.
(k) Distributions among Village Corporations; computation of amount. Funds distributed among the Village Corporations shall be divided among them according to the ratio that the number of shares of stock registered on the books of the Regional Corporation in the names of residents of each village bears to the number of shares of stock registered in the names of residents in all villages.
(l) Distributions to Village Corporations; village plan: withholding funds until submission of plan for use of money; joint ventures and joint financing of projects; disagreements, arbitration of issues as provided in articles of Regional Corporation. Funds distributed to a Village Corporation may be withheld until the village has submitted a plan for the use of the money that is satisfactory to the Regional Corporation. The Regional Corporation may require a village plan to provide for joint ventures with other villages, and for joint financing of projects undertaken by the Regional Corporation that will benefit the region generally. In the event of disagreement over the provisions of the plan, the issues in disagreement shall be submitted to arbitration, as shall be provided for in the articles of incorporation of the Regional Corporation.
(m) Distributions among Village Corporations in a region; computation of dividends for nonresidents of village; financing regional projects with equitably withheld dividends and Village Corporation funds. When funds are distributed among Village Corporations in a region, an amount computed as follows shall be distributed as dividends to the class of stockholders who are not residents of those villages: The amount distributed as dividends shall bear the same ratio to the amount distributed among the Village Corporations that the number of shares of stock registered on the books of the Regional Corporation in the names of nonresidents of villages bears to the number of shares of stock registered in the names of village residents: Provided, That an equitable portion of the amount distributed as dividends may be withheld and combined with Village Corporation funds to finance projects that will benefit the region generally.
(n) Projects for Village Corporations. The Regional Corporation may undertake on behalf of one or more of the Village Corporations in the region any project authorized and financed by them.
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(o) Annual audit; place; availability of papers, things, or property to auditors to facilitate audits; verification of transactions; report to stockholders, Secretary, and Congressional committees. The accounts of the Regional Corporation shall be audited annually in accordance with generally accepted auditing standards by independent certified public accountants or independent licensed public accountants, certified or licensed by a regulatory authority of the State or the United States. The audits shall be conducted at the place or places where the accounts of the Regional Corporation are normally kept. All books, accounts, financial records, reports, files, and other papers, things, or property belonging to or in use by the Regional Corporation and necessary to facilitate the audits shall be available to the person or persons conducting the audits; and full facilities for verifying transactions with the balances or securities held by depositories, fiscal agent, and custodians shall be afforded to such person or persons. Each audit report or a fair and reasonably detailed summary thereof shall be transmitted to each stockholder.
(p) Federal-State conflict of laws. In the event of any conflict between the provisions of this section and the laws of the State of Alaska, the provisions of this section shall prevail.
(q) Business management group; investment services contracts. Two or more Regional Corporations may contract with the same business management group for investment services and advice regarding the investment of corporate funds.
(r) Benefits for shareholders or immediate families. The authority of a Native Corporation to provide benefits to its shareholders who are Natives or descendants of Natives or to its shareholders' immediate family members who are Natives or descendants of Natives to promote the health, education, or welfare of such shareholders or family members is expressly authorized and confirmed. Eligibility for such benefits need not be based on share ownership in the Native Corporation and such benefits may be provided on a basis other than pro rata based on share ownership.
HISTORY: (Dec. 18, 1971, P.L. 92-203, § 7, 85 Stat. 691; Dec. 2, 1980, P.L. 96-487, Title XIV, Part A, § 1401(a), (c), 94 Stat. 2491; Feb. 3, 1988, P.L. 100-241, §§ 4, 5, 12(a), 101 Stat. 1790, 1792, 1810; Oct. 14, 1992, P.L. 102-415, §§ 4, 8, 106 Stat. 2113, 2114.) (As amended May 18, 1995, P.L. 104-10, § 1(a), 109 Stat. 155; Nov. 2, 1995, P.L. 104-42, Title I, § 109(a), 109 Stat. 357; Oct. 31, 1998, P.L. 105-333, §§ 8, 12, 112 Stat. 3134, 3135; May 2, 2000, P.L. 106-194, § 2, 114 Stat. 242; Dec. 2, 2008, P.L. 110-453, Title II, § 206, 122 Stat. 5030.)
HISTORY; ANCILLARY LAWS AND DIRECTIVES
References in text: "This Act", referred to in this section, is Act Dec. 18, 1971, P.L. 92-203, 85 Stat. 688, which generally appears as 43 USCS §§ 1601 et seq. For full classification of this Act, consult USCS Tables volumes.
Explanatory notes: The bracketed word "paragraph" has been inserted in subsec. (g)(4)(A)(ii) as the word probably intended by Congress.
Amendments:
1980. Act Dec. 2, 1980, in subsec. (h), in para. (1), inserted "or by stockholder who is a member of a professional
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LEXISNEXIS' CODE OF FEDERAL REGULATIONS Copyright (c) 2011, by Matthew Bender & Company, a member of the LexisNexis Group. All rights reserved.
*** THIS SECTION IS CURRENT THROUGH THE MAY 26, 2011 *** *** ISSUE OF THE FEDERAL REGISTER ***
TITLE 40 -- PROTECTION OF ENVIRONMENT CHAPTER I -- ENVIRONMENTAL PROTECTION AGENCY SUBCHAPTER D -- WATER PROGRAMS PART 124 -- PROCEDURES FOR DECISIONMAKING SUBPART A -- GENERAL PROGRAM REQUIREMENTS
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40 CFR 124.19
§ 124.19 Appeal of RCRA, UIC, NPDES, and PSD Permits.
(a) Within 30 days after a RCRA, UIC, NPDES, or PSD final permit decision (or a decision under 270.29 of this chapter to deny a permit for the active life of a RCRA hazardous waste management facility or unit) has been issued under § 124.15 of this part, any person who filed comments on that draft permit or participated in the public hearing may petition the Environmental Appeals Board to review any condition of the permit decision. Persons affected by an NPDES general permit may not file a petition under this section or otherwise challenge the conditions of the general permit in further Agency proceedings. They may, instead, either challenge thegeneral permit in court, or apply for an individual NPDES permit under § 122.21 as authorized in § 122.28 and then petition the Board for review as provided by this section. As provided in § 122.28(b)(3), any interested person may also petition the Director to require an individual NPDES permit for any discharger eligible for authorization to discharge under an NPDES general permit. Any person who failed to file comments or failed to participate in the public hearing on the draft permit may petition for administrative review only to the extent of the changes from the draft to the final permit decision. The 30-day period within which a person may request review under this section begins with the service of notice of the Regional Administrator's action unless a later date is specified in that notice. The petition shall include a statement of the reasons supporting that review, including a demonstration that any issues being raised were raised during the public comment period (including any public hearing) to the extent required by these regulations and when appropriate, a showing that the condition in question is based on:
(1) A finding of fact or conclusion of law which is clearly erroneous, or
(2) An exercise of discretion or an important policy consideration which the Environmental Appeals Board should, in its discretion, review.
(b) The Environmental Appeals Board may also decide on its initiative to review any condition of any RCRA,
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UIC, NPDES, or PSD permit decision issued under this part for which review is available under paragraph (a) of this section. The Environmental Appeals Board must act under this paragraph within 30 days of the service date of notice of the Regional Administrator's action.
(c) Within a reasonable time following the filing of the petition for review, the Environmental Appeals Board shall issue an order granting or denying the petition for review. To the extent review is denied, the conditions of the final permit decision become final agency action. Public notice of any grant of review by the Environmental Appeals Board under paragraph (a) or (b) of this section shall be given as provided in § 124.10. Public notice shall set forth a briefing schedule for the appeal and shall state that any interested person may file an amicus brief. Notice of denial of review shall be sent only to the person(s) requesting review.
(d) The Regional Administrator, at any time prior to the rendering of a decision under paragraph (c) of this section to grant or deny review of a permit decision, may, upon notification to the Board and any interested parties, withdraw the permit and prepare a new draft permit under § 124.6 addressing the portions so withdrawn. The new draft permit shall proceed through the same process of public comment and opportunity for a public hearing as would apply to any other draft permit subject to this part. Any portions of the permit which are not withdrawn and which are not stayed under § 124.16(a) continue to apply.
(e) A petition to the Environmental Appeals Board under paragraph (a) of this section is, under 5 U.S.C. 704, a prerequisite to the seeking of judicial review of the final agency action.
(f)(1) For purposes of judicial review under the appropriate Act, final agency action occurs when a final RCRA, UIC, NPDES, or PSD permit decision is issued by EPA and agency review procedures under this section are exhausted. A final permit decision shall be issued by the Regional Administrator:
(i) When the Environmental Appeals Board issues notice to the parties that review has been denied;
(ii) When the Environmental Appeals Board issues a decision on the merits of the appeal and the decision does not include a remand of the proceedings; or
(iii) Upon the completion of remand proceedings if the proceedings are remanded, unless the Environmental Appeals Board's remand order specifically provides that appeal of the remand decision will be required to exhaust administrative remedies.
(2) Notice of any final agency action regarding a PSD permit shall promptly be published in the FEDERAL REGISTER.
(g) Motions to reconsider a final order shall be filed within ten (10) days after service of the final order. Every such motion must set forth the matters claimed to have been erroneously decided and the nature of the alleged errors. Motions for reconsideration under this provision shall be directed to, and decided by, the Environmental Appeals Board. Motions for reconsideration directed to the administrator, rather than to the Environmental Appeals Board, will not be considered, except in cases that the Environmental Appeals Board has referred to the Administrator pursuant to § 124.2 and in which the Administrator has issued the final order. A motion for reconsideration shall not stay the effective date of the final order unless specifically so ordered by the Environmental Appeals Board.
HISTORY: [48 FR 14264, Apr. 1, 1983, as amended at 54 FR 9607, Mar. 7, 1989; 57 FR 5335, Feb. 13, 1992; 65 FR 30886, 30911, May 15, 2000]
AUTHORITY: AUTHORITY NOTE APPLICABLE TO ENTIRE PART: Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq.; Safe Drinking Water Act, 42 U.S.C. 300f et seq.; Clean Water Act, 33 U.S.C. 1251 et seq.; Clean Air Act, 42 U.S.C. 7401 et seq.
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2008, Contact: Donald Burns 212– ENVIRONMENTAL PROTECTION Dated: September 8, 2008. 668–2182. AGENCY James T. Owens, III, EIS No. 20080454, Final EIS, OSM, 00, Director, Office of Site Remediation and Black Mesa Project, Revisions to the [FRL–8738–6] Restoration, Region 1. Life-of-Mine Operation and [FR Doc. E8–26670 Filed 11–6–08; 8:45 am] Reclamation for the Kayenta and Proposed CERCLA Administrative BILLING CODE 6560–50–P Cost Recovery Settlement; City of Black Mesa Surface-Coal Mining Waterbury, CT, Chase Brass & Copper Operations, Right-of-Way Grant, Site, Watertown, CT ENVIRONMENTAL PROTECTION Mohave, Navajo, Coconino and AGENCY Yavapai Counties, AZ, and Clark AGENCY: Environmental Protection County, NV, Wait Period Ends: 12/08/ Agency (EPA). [FRL–8739–5] 2008, Contact: Dennis Winterringer ACTION: Notice of proposed settlement; State Program Requirements; 303–293–5030. request for public comment. Approval of Application by Alaska To Administer the National Pollutant Amended Notices SUMMARY: In accordance with Section Discharge Elimination System 122(i) of the Comprehensive EIS No. 20080296, Final EIS, FHW, TX, (NPDES) Program; Alaska Environmental Response Compensation, Grand Parkway (State Highway 99) and Liability Act, as amended AGENCY: Environmental Protection Selected the Preferred Alternative (‘‘CERCLA’’), 42 U.S.C. 9622(i), notice is Agency (EPA). Alignment, Segment F–2 from SH 249 hereby given of a proposed ACTION: Notice. to IH 45, Right-of-Way Permit and administrative settlement for recovery of U.S. Army COE Section 404 Permit, past costs concerning the Chase Brass & SUMMARY: On October 31, 2008, the Harris County, TX, Wait Period Ends: Copper Superfund Site in Watertown, Regional Administrator for the 11/26/2008, Contact: Justin Ham 512– Connecticut with the following settling Environmental Protection Agency, 536–5963. Revision to FR Notice party: City of Waterbury, Connecticut. Region 10 (EPA), approved the Published 08/08/2008. Extending The settlement requires the settling application by the State of Alaska to Wait Period from 11/07/2008 to 11/ party to pay $75,000 to the Hazardous administer and enforce an Alaska 26/2008. Substance Superfund. The settlement version of the National Pollutant Discharge Elimination System (NPDES) EIS No. 20080333, Draft EIS, IBR, CO, includes a covenant not to sue for the program, pursuant to section 402 of the Windy Gap Firming Project, Construct settling party pursuant to Section 107(a) of CERCLA, 42 U.S.C. 9607(a). For thirty Clean Water Act (CWA or ‘‘the Act’’). a New Water Storage Reservoir To The State will administer the approved Deliver Water to Front Range and (30) days following the date of publication of this notice, the Agency Alaska Pollutant Discharge Elimination West Slope Communities and System (APDES) program through the Industries, Funding, NPDES and U.S. will receive written comments relating to the settlement. The Agency will Alaska Department of Environmental Army COE Section 404 Permit, Grand consider all comments received and Conservation (ADEC) regulating and Larimer Counties, CO, Comment may modify or withdraw its consent to discharges of pollutants into waters of Period Ends: 12/29/2008, Contact: the settlement if comments received the United States under its jurisdiction. Will Tully 970–962–4368. Revision to disclose facts or considerations which EPA has approved the State’s FR Notice Published 08/29/2008: indicate that the settlement is implementation plan that transfers the Extending Comment Period 10/28/ inappropriate, improper, or inadequate. administration of specific program 2008 to 12/29/2008. The Agency’s response to any components from EPA to the State over EIS No. 20080416, Final EIS, BLM, OR, comments received will be available for a three year period from the date of program approval, subject to continuing Western Oregon Bureau of Land public inspection at One Congress EPA oversight and enforcement Management Districts of Salem, Street, Boston, MA 02114–2023. authority, in place of the NPDES Eugene, Roseburg, Coos Bay, and DATES : Comments must be submitted by program previously administered by Medford Districts, and the Klamath December 8, 2008. EPA in Alaska. Upon approval of the Falls Resource Area of the Lakeview ADDRESSES: Comments should be Alaska program, the Regional District, Revision of the Resource addressed to Mary Jane O’Donnell, Administrator notified the State, signed Management Plans, Implementation, Chief, ME/VT/CT Superfund Section, the Memorandum of Agreement OR, Wait Period Ends: 11/17/2008, U.S. Environmental Protection Agency, between EPA and ADEC, and will Contact: Jerry Hubbard 503–808– Region I, One Congress Street, Suite suspend issuance of NPDES permits in 6115. Revision of FR Notice Published 1100 (HBT), Boston, Massachusetts Alaska in accordance with the State’s 10/17/2008: Correction to Wait Period 02114–2023 (Telephone No. 617–918– approved schedule to transfer NPDES from 12/01/2008 to 11/17/2008. 1371) and should refer to: In re: Chase program authority. EPA retains NPDES Brass & Copper Superfund Site, U.S. Dated: November 4, 2008. permitting authority and primary EPA Docket No. 01–2008–0010. enforcement responsibility for: the bio- Robert W. Hargrove, FOR FURTHER INFORMATION CONTACT: A solids program; facilities operating in Director, NEPA Compliance Division, Office copy of the proposed settlement may be the Denali National Park and Preserve of Federal Activities. obtained from Mary Jane O’Donnell, pursuant to Alaska Statehood Act [FR Doc. E8–26605 Filed 11–6–08; 8:45 am] Chief, ME/VT/CT Superfund Section, Section 11; facilities discharging in BILLING CODE 6560–50–P U.S. Environmental Protection Agency, Indian Country as defined in 18 U.S.C. Region I, One Congress Street, Suite 1151; facilities operating outside state 1100 (HBT), Boston, Massachusetts waters (three miles offshore); and 02114–2023 (Telephone No. 617–918– facilities with CWA section 301(h) 1371; E-mail odonnell.maryjane@ waivers. This approval includes an epa.gov). implementation plan that transfers the
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administration of specific program EPA disapproves or approves the State’s a schedule for EPA to transfer permit, components from EPA to the State over application or EPA and the State compliance, and enforcement a three year period from the date of mutually agree to extend this 90-day responsibility for the NPDES program to program approval. In making its statutory review period in accordance DEC over three years from the APDES decision, EPA considered and addressed with 40 CFR 123.21(b)(1) and 123.61(b). program approval date, October 31, the comments and issues raised during EPA Region 10 determined that the 2008. The following schedule identifies the public comment period, public APDES program application received on the phasing plan that the approved testimony at three public hearings, and May 1, 2008, along with revisions APDES program will administer for its comments expressed by tribes during received up to June 9, 2008, were permitting, compliance, and the requested government-to- administratively complete pursuant to enforcement activities associated with government tribal consultations. 40 CFR 123.21. On June 10, 2008, a each major component: Phase I, at DATES: Pursuant to 40 CFR 123.61(c), letter of completeness and confirmation program approval the APDES program the APDES program was approved and of the mutual agreement to extend the will include Domestic Discharges, became effective on October 31, 2008. statutory review period was sent to the Timber Harvesting, Seafood Processing FOR FURTHER INFORMATION CONTACT: Commissioner of ADEC. Facilities, and Hatcheries. Phase II, one Michael Lidgard, Office of Water and In accordance with section 305(b) of year from program approval, the APDES Watersheds, U.S. Environmental the Magnuson-Stevens Fishery program will include Federal Facilities, Protection Agency, Region 10, 1200 6th Conservation and Management Act, EPA Stormwater Program (excluding the Bio- Avenue, Suite 900, Mail Stop OWW– completed a ‘‘Determination of No Solids Program), Pretreatment Program, 130, Seattle, WA 98101–3140, (206) Adverse Effect on Essential Fish Habitat and miscellaneous non-domestic 553–1755, [email protected]; or of Alaska’s APDES Program discharges. Phase III, two years from Sharon Morgan, Alaska Department of Authorization,’’ August 2008. On program approval, the APDES program Environmental Conservation, P.O. Box August 28, 2008, EPA sent the National will include Mining. Phase IV, three 111800, 410 Willoughby Avenue, Suite Marine Fisheries Service a courtesy years from program approval, the 303, Juneau, AK 99811–1800, (907) 465– copy of the no effect determination. APDES program will include Oil and 5530, [email protected]. The A. Scope of APDES Program Gas, Cooling Water intakes and State’s program application, supporting dischargers, Munitions, and all other The State of Alaska is applying to documentation and EPA’s response to remaining facilities. administer the NPDES permitting, comments can be viewed and compliance and enforcement programs Pursuant to CWA section 402(d), in downloaded from the EPA Web site, for individual and general permits, as specified circumstances EPA retains the http://www.epa.gov/r10earth/ well as for the pretreatment and right to object to APDES permits waterperimits, and the State’s program stormwater programs in Alaska. The proposed by ADEC and, if the objections application can also be viewed from the State did not apply to regulate the are not resolved, to issue the permits ADEC’s Web site, http:// disposal of sewage sludge (Bio-Solids itself. As part of operating the approved www.dec.state.ak.us/water/npdes/ Program) in Alaska. EPA retains NPDES program, ADEC generally will have the npdes.htm. permitting authority and primary lead responsibility for enforcement. SUPPLEMENTARY INFORMATION: The enforcement responsibility over the Bio- However, EPA will retain its full Alaska program application was Solids Program in accordance with statutory enforcement authorities under described in the Federal Register (73 FR section 405 of the Act and 40 CFR part CWA sections 308, 309, 402(i) and 504. 34746) published on June 18, 2008, in 503. Thus, EPA may continue to bring which EPA requested comments. Notice Additionally, EPA will retain NPDES federal enforcement action under the of Alaska’s program application was permitting authority and primary CWA in response to any violation of the published in four State of Alaska enforcement responsibility over the CWA, as appropriate. In particular, if newspapers on June 18, 2008. Combined following: operations in the Denali EPA determines that the State has not NPDES educational workshops and National Park and Preserve pursuant to taken timely and/or appropriate public hearings on the Alaska program Alaska Statehood Act section 11; enforcement action against a violator in application were held in Fairbanks, NPDES facilities discharging in Indian Alaska, EPA may take its own Alaska, on July 21, 2208, in Juneau, Country as defined in 18 U.S.C. 1151; enforcement action. Alaska, on July 22, 2008, and in facilities operating outside state waters Additional details about the scope Anchorage, Alaska, on July 23, 2008. (three miles offshore); and facilities with and summary of the APDES program EPA held government-to-government CWA section 301(h) waivers. application can be found in the Federal tribal consultations as requested in The State of Alaska has been Register (73 FR 34746) published on Dillingham, Alaska, on May 12, 2008, in approved to assume responsibility for June 18, 2008. Additionally, the APDES Kotzebue, Alaska, on August 5, 2008, in the NPDES programs in phases, program is described in documents the Sitka, Alaska, on September 11, 2008, pursuant to the CWA section 402(n)(4). State submitted in accordance with 40 and in Bethel, Alaska, on September 30, Alaska’s application meets the CFR 123.21, which include a letter from 2008. Additionally, EPA held requirements for such a phased the Governor requesting program government-to-government consultation approach. In accordance with CWA approval; a Memorandum of Agreement teleconferences as requested by the section 402(n)(4), EPA may approve a (MOA) for execution by ADEC and EPA; Loudon Tribal Council of Galena, phased permit program covering a Program Description outlining the Alaska, on May 8, 2008; and with administration of a major component procedures, personnel, and protocols Sun’aq Tribe of Kodiak, Alaska, on that represents a significant and that will be relied on to implement the October 3, 2008. identifiable part of the NPDES program. State’s permitting, compliance, and Section 402(c)(1) of the CWA provides The State will administer the NPDES enforcement program; a Statement that ninety days after a State has program by phases and agrees to make signed by the Attorney General that submitted an application to administer all reasonable efforts to assume such describes the State’s legal authority to the NPDES program, EPA’s authority to administration by the deadlines. administer a program equivalent to the issue such permits is suspended unless Specifically, ADEC’s approval includes federal NPDES program; and a
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description of the State’s Continuing Dated: October 31, 2008. Deterding; and Mary Lou Bauer, each as Planning Process. Elin D. Miller, Trustees of the Plan, together with Regional Administrator, EPA, Region 10. David Hauskins; Mary Hauskins; The B. Public Comments [FR Doc. E8–26486 Filed 11–6–08; 8:45 am] Roger L. Deterding Declaration of Trust; The EPA received numerous public BILLING CODE 6560–50–P Roger L. Deterding as Trustee; The comments concerning the Alaska Nancy K. Deterding Declaration of APDES program. Several comments Trust; Nancy K. Deterding as Trustee, all urged the EPA to approve the State’s FEDERAL ELECTION COMMISSION of Sparta, Illinois, and Mary Lou Bauer, program. Supporters of approval felt the Red Bud, Illinois, to gain control of First State had met all of the CWA Sunshine Act Notices Bancorp of Sparta, Ltd., and thereby requirements and that the program indirectly acquire control of First AGENCY: Federal Election Commission. would benefit from being operated by National Bank of Sparta, both of Sparta, DATE AND TIME: Friday, November 7, ADEC though increased accessibility, Illinois. 2008 at 10 a.m. resources, and familiarity with Alaska Board of Governors of the Federal Reserve conditions. Comments were received PLACE: 999 E Street, NW., Washington, System, November 4, 2008. that urged EPA to not approve the DC. Jennifer J. Johnson, authorization request based on grounds STATUS: This meeting will be closed to Secretary of the Board. the public. that the application did not meet CWA [FR Doc. E8–26601 Filed 11–6–08; 8:45 am] ITEMS TO BE DISCUSSED: Compliance requirements, including the lack of an BILLING CODE 6210–01–S adequate state enforcement program. matters pursuant to 2 U.S.C. 437g. Numerous Tribal governments and Audits conducted pursuant to 2 communities expressed concerns that U.S.C. 437g, 438(b), and Title 26, U.S.C. FEDERAL RESERVE SYSTEM once Alaska receives authorization, Matters concerning participation in civil government-to-government tribal actions or proceedings or arbitration. Formations of, Acquisitions by, and consultation with EPA would no longer Internal personnel rules and procedures Mergers of Bank Holding Companies be required and Tribes would lose an or matters affecting a particular avenue for providing input into permit employee. The companies listed in this notice decisions. Some Tribes assert EPA’s PERSON TO CONTACT FOR INFORMATION: have applied to the Board for approval, trust responsibilities to Tribes prohibit Mr. Robert Biersack, Press Officer, pursuant to the Bank Holding Company program approval until all Tribal Telephone: (202) 694–1220. Act of 1956 (12 U.S.C. 1841 et seq.) concerns are addressed. All public (BHC Act), Regulation Y (12 CFR Part Mary W. Dove, comments are addressed in the EPA 225), and all other applicable statutes Response to Comments document dated Secretary of the Commission. and regulations to become a bank October 31, 2008, and can be viewed [FR Doc. E8–26420 Filed 11–6–08; 8:45 am] holding company and/or to acquire the and downloaded from the EPA Web site, BILLING CODE 6715–01–M assets or the ownership of, control of, or http://www.epa.gov/r10earth/ the power to vote shares of a bank or waterpermits.htm. bank holding company and all of the FEDERAL RESERVE SYSTEM banks and nonbanking companies C. Obtaining Copies of Documents owned by the bank holding company, Change in Bank Control Notices; including the companies listed below. To obtain copies of documents Acquisition of Shares of Bank or Bank The applications listed below, as well contact Audrey Washington, Office of Holding Companies as other related filings required by the Water and Watersheds, U.S. Board, are available for immediate Environmental Protection Agency, The notificants listed below have inspection at the Federal Reserve Bank Region 10, 1200 6th Avenue, Suite 900, applied under the Change in Bank indicated. The applications also will be Mail Stop OWW–130, Seattle, WA Control Act (12 U.S.C. 1817(j)) and available for inspection at the offices of 98101–3140, (206) 553–0523, § 225.41 of the Board’s Regulation Y (12 the Board of Governors. Interested [email protected]; or Sharon CFR 225.41) to acquire a bank or bank persons may express their views in Morgan, Alaska Department of holding company. The factors that are writing on the standards enumerated in Environmental Conservation, P.O. Box considered in acting on the notices are the BHC Act (12 U.S.C. 1842(c)). If the 111800, 410 Willoughby Avenue, Suite set forth in paragraph 7 of the Act (12 proposal also involves the acquisition of 303, Juneau, AK 99811–1800, (907) 465– U.S.C. 1817(j)(7)). a nonbanking company, the review also 5530, [email protected]. The notices are available for immediate inspection at the Federal includes whether the acquisition of the D. Notice of Decision Reserve Bank indicated. The notices nonbanking company complies with the also will be available for inspection at standards in section 4 of the BHC Act I hereby provide public notice that the office of the Board of Governors. (12 U.S.C. 1843). Unless otherwise EPA has taken final action authorizing Interested persons may express their noted, nonbanking activities will be Alaska to administer and implement the views in writing to the Reserve Bank conducted throughout the United States. approved Alaska Pollutant Discharge indicated for that notice or to the offices Additional information on all bank Elimination System (APDES) program of the Board of Governors. Comments holding companies may be obtained through the Alaska Department of must be received not later than from the National Information Center Environmental Quality (ADEC) November 24, 2008. website at www.ffiec.gov/nic/. regulating discharges of pollutants into A. Federal Reserve Bank of St. Louis Unless otherwise noted, comments waters of the United States under its (Glenda Wilson, Community Affairs regarding each of these applications jurisdiction. Officer) P.O. Box 442, St. Louis, must be received at the Reserve Bank Authority: This action is taken under the Missouri 63166–2034: indicated or the offices of the Board of authority of section 402 of the Clean Water 1. First National Bank of Sparta Profit Governors not later than December 4, Act as amended, 42 U.S.C. 1342. Sharing Plan; David Hauskins; Roger 2008.
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