my name is tom waldo i'm the attorney for southeast alaska conservation council and the other plaintiffs with me at the counsel table is my colleague eric jorgensen and i'm going to try to reserve about four minutes of my time for rebuttal are i would you keep track but yes i will thank you this case presents a question of first impression because the army corps of engineers fit something it had never done before based on  change interpretation of the clean water act the court issued a section for all four fill material permit to the kensington mine for the discharge of process waste water into a lake not withstanding an e p a new source performance standards that prohibits those discharges in my argument today i just want to cover two principle things maybe a dozen maybe you got it and have to question why we're here to answer well certainly the plain language of second the agencies interpretation of the act as expressed in the two thousand and two fuel rules and when you see the agency which you're referring to sections three zero one or three zero six they're perfectly clear section three zero one is the cornerstone of the clean water act and it prohibits its knows that the discharge of any pollutant by any person sh unlawful except as in compliance with section three o six and other sections of the clean water act section three zero six that in turn says that it shall be unlawful to operate any new source in violation of an applicable new source performance standards one thousand nine hundred eighty adopted a new source performance standard specifically applicable to mills that use the froth flotation process for the beneficiation of go charge limitation no discharge of process waste water can never go to water and that was based on a review of mines across the country that concluded that these kinds of discharges are not necessary so the plain language of three zero one and three  six together with the performance standard simply prohibit the discharge that the corps of engineers purported to authorize here and up and how i have a question for you we have very yeah  processed waste water to navigable waters from mills that use the froth rotation process it describes very specifically the precise type of facility used in this case whereas the film material definition is is merely a broad and general definition and up until a couple of years ago the corps of engineers would have refused to issue this permit but they've recently adopted a new interpretation of the clean water act it's based on of those two provisions section four o two says that permits have to be based upon the condition that discharges will comply with any applicable requirements of sections three zero one three zero six and other provisions section four  four does not contain comparable language and on the basis of this difference the defendants jump to the conclusion that fill material must be exempt from three zero one and three or six the problem with that inf contradicts the plain language of three zero one and three zero six themselves on their face those sections apply to the discharge of any pollutant and to the operator of any new source there is no exception in that language for film material in the absence of an explicit exemption for film material the agencies are in practical effect asking for an implied exception under the case of united states v rutherford where you have clearly delineated statutes like section three zero one and three zero six you should only find an implied exception if it's needed to avoid an absurd result certainly has the power to amend its regulations if it reviewed them and determined that this regulation was for whatever reason no longer appropriate but i certainly don't think that the facts exist at this time to warrant such a conclusion that clean water act requires that e p a adopt is zero discharge limitation if it's practicable and e p a made a determination over twenty years ago that it was practicable but  court has been very clear that looking at the plain language of section three zero six again in the in the dukan case that there are no exceptions to section three x so it's a nationwide standard and they can't make an exception for one particular mine now the defendants are certainly correct that you should assume that congress wrote sections four zero two and four hundred four with just different language deliberately but there's a perfectly good explanation for that difference that doesn't require finding the implied exception and in fact it's the interpretation that the agencies have historically followed and that is that congress simply didn't intend for the corps of engineers to issue for all four permits for discharges that are subject to effluent limitations and performance standards this interpretation gives full effect to the basic principles of statutory construction preclude the implied exception sought by the defendants in this case under chevron congress has spoken clearly to the issue in this case and it's not exceptions and four hundred two and four hundred four can be interpreted in a way that of voids the need to imply any exceptions to following those basic rules of statutory construction there is a clear result here we believe that for it to apply if you could permit this discharge it would need to be under section four hundred two because section four hundred two has the mechanism to enforce performance standards and effluent limitations  regulate the without the regulation you were just talking new sports performance standard yes oh yeah it would if there were no system if there were no new source performance standard that were applicable to this this discharge then i know no reason that it would not be permissible for the court to treat it as fill material so it would not be a violation of three a one a it were not for that particular right because it wouldn't be violating section thr interpretation here but the in the in the agency's interpretation of the clean water act as expressed in the two thousand and two fill rule actually reinforces the plain language interpretation of the clean water act that i've been discussing in the phil rule the corps of engineers an e p a jointly adopted a very broad definition of fill material includes anything that raises the bottom elevation of a water body which covers discharge has suspended solids and e p a has adopted a lot of ethanol limitations for sources that include suspended solids so the question arose in this regulation whether what you would do with a pollutant that both meets the definition of fill material and is subject to effluent limitations adopted by e p a the rule itself doesn't address that question at all but the agencies addressed it directly in the federal register notice adopted with the with the adoption of the final rule and they stated squarely discharges subjects effluent limitations would continue to be governed under section four zero two of the clean water consistent with the agency's longstanding practice now the defendants point to other language in the rulemaking in which the agency said that any mining related materials with the effect of fill would be treated as fill material but even as to mining related materials the agencies clarified that if effluent limitations applied to the material that the that the discharge would have to be regulated under section four zero two rather than four hundred four that clarification occurs in the responses to public comments that the agency adopted in conjunction with the final rule the explanation appears in governed under section four zero two or four hundred four of the clean water act the agency's first level response was to assist with the statement preferred by the defendants that if it has the effect of phil then it still material but that statement was immediately followed by two further sentences the first of which begins with never the last and the second of which you can with more over the nevertheless sentence says that if he has adopted effluent limitations for the or has determined that effluent limitations apply to the material then the effluent limitations will continue to govern the moreover stephens says that process water will continue to be regulated under section four zero two with effluent agency's intent in adopting the regulation because it was issued in conjunction with their adoption of the final rule and moreover if you believe that there is significant ambiguity in the clean water act itself as to what congress intended in this regard then this statement is also a reasonable interpretation of the act but is entitle to substantial deference under chevron in contrast the four hundred four permit issued to the kensington min itself is not entitled to deference under chevron because it was not adopted as a rule with the force of law and it contradicts what the agency said when they adopted the final rule that isn't because two responses that your honor first just a clarification the discharge here meets the definition of fill material as part of the discharge there is a component  containing process wastewater which which does meet the definition and assess wastewater but i think you need to go back to the statute and not the regulations to determine the the statutory construction issue here and in that respect section four hundred four governs the discharge of two pollutants only dredge material and fill material and four o two governs discharges of all other  standard well your honor that the statute regulates just charges and here you have to look at the effect of the hold it does not regulate components particular components and some divide the isn't only one thing or the other what you do is what the army corps did hear with the e p a s concurrence that this was the proper way to do it you look at the effect of the discharge to determine whether it meets the they yes they did your honor and if you look at the there's a memorandum to that effect in the record it's written by diane regress of the e p a it's in the excerpts of record from four twelve to four sixteen that lays out the analytical structure and that memorandum agreed with the army corps of engineers here that the discharges here into an empowerment made specifically for that purpose fall within the definition of fill material and or break elated white why wouldn't that as a common sense matter be a violation of the intent of the clean water act that's that's a very good question your honor and the answer here is the army corps after extensive analysis determine that the regulatory scheme under four or four known as the four forty one guidelines would be met and the plaintiffs have not challenge that determination so that the questions you're asking go to e p a s determination here which that is not to see how their core could could out of their oral for guidelines on how could they have through have reached this conclusion when they're forced to look at fisheries and so forth when it kills all the fish yes  your honor there's a detailed record on that and it does it does agree that anything in the lake will probably die off it will be restored upon completion all the tailings will be kept over they'll be new reinstate the aquatic animals and fish and so forth that were there well the questions you're asking go to the challenge to the you know and i understand that it's just the agency made a determination that well water so long as you don't pollute something else to the creek well again i am not trying to sound of a set here because that's not they have not challenge that but this brings up the dichotomy between four  comply with three zero six four four takes a different route it requires compliance with the section four hundred four b one guidelines which are promulgated by e p a and which have to be applied by the army corps of engineers in every case where there's a discharge or fill material now those regulations are not necessarily in conflict with the the fourth location regulation here but if you look at the four for that they have to look at circulation patterns chemical and biological mean that they would have to have the same compliance it seems to me that if you're looking at it and it's only about farm roads why wouldn't why wouldn't it make sense that there is no implied exception for everything else that can pollute the water through mainstreams well what i again i'm not trying to be invasive what you're talking about really is the application of these guidelines to the facts here requirements for all of roads and overburden and so forth there dafur comply but it's only for those roads i can't see that it makes much sense to have an pretty clear that waste streams are still very regulated under four o two no it doesn't your honor the preamble talked about past practice and the past practice of the corps has been to complied in it's been concurred in by the state of alaska and nobody has challenged the issuance of the four o two permit here so i don't think that affects the analysis here now what i'd like to do is get to the provisions bunch of other things including four zero two one four zero four under their interpretation of that word and in the second clause that means you have to comply with every discharge has to comply with everything on that that would mean you to be considered as film with cereal well i didn't do it so long paragraph i didn't read it all but yes it is your sentence there are a couple other things in that paragraph and i'll get to the distinction you're drawing but among other things it says e t a has never y it doesn't make too general statements they're one as to one for it to applies and one is to one for all four applies but the basic fundamental dividing line is examining whether the discharge has the effect of phil here and that's a fact the pendent determination subject agency expertise you look at a particular discharge and its effect on the particular water body and all we're saying here we're not we're not looking for a blanket  charges that are in effect waste water we consider to consider such pollutants not  well i think if if you read that carefully and i don't have it in front of me but those are broad statements and pertain to this rule well this rule defines fill material in a prosecutor way and that's what you have to look first of all at the plain language of the role itself and look to the preamble then that's very relevant but that statement is just you know a broad general statement it's not saying that a discharge that has the effect of still is nevertheless the rule which the preamble says well we don't consider these things to be still well i'll have to i don't have that specific idea of what i think but again that that any restriction being given permission under section four or so i'm wondering why that isn't an indication that there could be a relationship between orto or and categories which are non prohibited discharges of dredge to fill material and if at the end of the list of those it says it's not prohibited by or otherwise subject to regulation under this section and then it says a i think that's just a very narrow reference to section three zero seven in a very small context and you still have to get back to four or four and a well it seems to me though to create at least an ambiguity provision upon which plaintiffs are going here so again i i think the plain language weighs in favor of the government's interpretation here under the permitting provisions themselves and the provisions outside  attorney for the defendant intervener quare alaska who is developing this mine in southeast of alaska close to general let me try to address two or three questions which have been raised here because my time this exceedingly limited first of all your honor with respect to your question judge hogg on the preamble the preamble and the regulation itself squarely squarely apply to these to this discharge to the fill here to it the definition of meting fill material my co counsel is already referred to in the definition of discharge of filmic curial in the regulation they were first specifically to the placement of tailings or similar mind related materials and i am quoting in the preamble they say quote and this is the e r one ninety four the language in today's final rule will clarify that any mining related material that has the effect of fill when that i only read of target so that wouldn't be filled if it's a come from main stream of water if it comes from a waste stream as opposed to mine tailings that would not be but keep in mind here too and i think it's important to understand the overall situation here this is in southeast alaska this has been exhausted at least study by the corps and by the e forest service and the record built for both the four and four permit particularly the four for b one guidelines is for thousands of pages they arrived after public hearings an opportunity for filled first and then the tailings placed upon the material which took the wetlands and here hundreds of acres of wetlands may have needed to have been taken under some of these alternatives and exhaustively looking at this the agency arrived at the conclusion that this lake would serve as the impoundment for these tailings for a period of ten years it will be reclaimed and and there is a four zero two permit for the discharge from this impoundment that meets that meets the requirements that meets the standards various already have for zero two i'm sorry if you say there's already a four zero two permit yes from the impound pressure from the m r how they say that that at that point they would have to look at this you have to settle out the tailings that they have to settle out you cannot apply these kinds of effluent limitation guidelines to solid material doesn't make sense and they never intended for that purpose that's why there are these two programs for two and four and four they are distinct programs real six applies in three to one apply within the four hundred two program it's nonsensical from a technical position that it would apply in the four or four program but the four poor program your honor is equally rigorous two four zero two and judge graber i think in terms of statute of statutory interpretation and how this is looked at it seems to me that this is much closer your honor to the decision in defenders of wildlife against browner in one nine hundred ninety nine decision of this court where here if if congress wanted if congress wanted three o six applied in the four hundred four program all they had to was say it but it's not in their four four program does not apply i three atsic because it doesn't make any sense technically to apply it to solid slurry such as this wet sand that is coming out and going into would be going into the impound and legally it's an entirely separate program and the appellant's agree with that that they do not dispute its fact in fact they can see their opening brief here right now i will be here to do that all right thank you point that mr berg off was making and about the nature of this discharge how it's solid suspended in a liquid solution and waste water discharge that was exactly the type of just charge jurisdiction over the water part that's not the way e p a addressed it it was a wastewater discharge that by its very nature because of the way these froth floatation mills work it contains a very high component of suspended solids and when adopted that new source performance standards it was specifically with the intent and knowledge that it was governing the entire wastewater just charge including all these this and that solids and that was a reasonable exercise of  discretion and authority under the clean water act now if you interpreted the discharge at the kensington mine as phil material because it has the effect of raising the bottom elevation it renders that effluent that that new source performance standards to be a complete knowledge because the discharge from frost floatation milled by its nature always contains these high level that will have the effect of steel that will meet the definition of fill material and under their interpretation that regulation becomes completely superfluous and that that's just an unacceptable interpretation  the fill rule because it was merely an informal agency interpretation an informal agency memo rather than a rule adopted with the force of law it also seems to edge quite  extent that the memo suggests that the wastewater discharge from the kensington mine can be regulated as still material and therefore be exempt from the new source performance standards   mr starr cited for circuit's decision in kentucky and as an example of its supporting the fact the past practice of the court and regulating still material of course the important distinction between this case and kentucky and is that the valley fills or mountaintop removal in kentucky and we're not subject to any affluent limit you have been pointing out from the beginning in this case that this was a substantial change an agency practice that or that the core it or rather had never issued a permit like this before the defendants have virtually scoured the country looking for an example to establish a precedent and they haven't found a single one not one of the permits they cited as as providing some sort of precedent actually authorized the discharge of actually with a four hundred four permit authorizing discharge did something subject to an f one limitation or a performance standard and that's very strong evidence that what we are seeing now after the two thousand and two for phil rule is a substantial change in agency practice that w not described in the few thousand to fill rule the final thing i would like to address is the interpretation of section three a one a and the fact that section three of six is listed on there mr starr argued that it doesn't make sense to say that every discharge has to apply with all of those provisions and yet that's exactly what the language that's now he's clearly correct that some of those provisions just want to apply to some discharges so for example if there is no new source performance standards three zero six just doesn't apply but in this case the question under three of six is whether there is a preferred scandal of performance  it's clearly applicable and in and if you accepted defendants argument that three zero six only is applied to section four hundred two it has no self standing authority then its presence in section no one any would be completely superfluous it wouldn't serve any purpose there because it would be included within section four or to the fact that three or six is listed in that section shows that congress intended that that section has a separate that as i discussed in my argument that this charge is subject to effluent limitations would continue to be regulated under section four hundred two consistent with the agency's longstanding practice and as i also discussed in my argument that mr mr burghoff made reference to the statements about how mining related materials would be treated as fill material that had the effect of phil but even that statement was qualified in the responses to comments from the question came up how does it relate to effluent limitations that statement i read from i think it's e r to seventy seven addresses that issue directly that even for mining related materials with the effect of fill if there is an affluent limitation applicable to it as there is in this case then the effluent limitation controls and it has to be programmed through for it has to be permeated through section four hundred two if at all problem with a kind of fix if you will in this situation is the second reason we are asking for this injunction to be lifted and that is the new usually heavy but without findings number one we are having difficulty frankly interpret ing this proviso which at best is vague because the proposal but my point is if we have to under the approved engineer plan which would mean the construction of the earth and it's an earthen phase one dam at that site so that we could stabilize it yes that would all to permit requirements that are in place there at the base of the lake compounce and we are concerned keep in mind there are the there are no tailings of course going into the lake at this stage and this is a process by the way that does not use cyanide or any such toxic materials we are concerned the overflow of sediment into lower slate creek why can't that because it is basically an impoundment at this stage of the game you're on a construction has been ongoing until the august injunction was issued construction has been ongoing consistent with the permit consistent with the approved plan by what kind of construct increasing the area around the lake so as the lake rises in the acreage surface it reach increases that that can be accomplished and secondly there is also a water been vague and difficult for us to adequately interpret and frankly we did not want to proceed in a way that would be of concern with respect to the way that proviso in the present injunction is worded that's the sum and substance of our concerns we frankly did not anticipate this second element your honor and that is the excessive rains in southeast  constructed ongoing and that was constructed earlier this year your honor in the spring i don't know precisely whether it was before or after march but it was in the spring this year when it wouldn't normally when you figure that there's all this being contested that if you go ahead and start putting some of the construction and particularly this earth a materialist you're worried  ch fish doing at your own risk but it's no question we were your honor we understood that and we were frankly confident still confident that this permit will be upheld and the forum for permit as well as the fo permit at the base of the empowerment we're still comfortable with that we are confident of that and secondly secondly most importantly your honor this can be all reclaimed nothing has been done honor given the weather conditions it is now frozen but that can change quickly and you know it can start raining on the snow which is what we're concerned about move forward with construction of the earth and phase one dam which is roughly thirty eight feet in height and again that's an earthen dam the plaintiffs make this out to be as if it's the  that tom although again for the pellets and as an initial matter i would like to answer the question that judge judge asked that mr berkoff wasn't certain about and that is the timing of the construction of the dam before the permit was reinstated on march twenty ninth they didn't have a permit to put any film material into the wetlands there and so there was no construction taking place at that time that construction had to of taken place after m agree that you agree that there is a danger to whether that temporary coffer dam might fail we don't have any reason to doubt that that's true all that we know about it is what they've said in their motion and they haven't even and but we don't have reason to doubt that it is very likely it is possible that if you were to have particularly adverse weather conditions where you had a lot of snow combined with a lot of snow melt all at once that it could pose some kind of threat to that very day assuming assuming there is you know some probability of some kind of threat what is your position on you know what to who or what the proper remedy for that is well short from vacating the injunction it's something that we need to work more on and as mr burke off pointed out it's been difficult to get out to the site and it's all covered in snow right now  but from the conversations that we've had with engineers it should be possible just to put in a spillway that would take care of any overflow and and address the problem without going to the extreme measure of building the entire thirty going around ok there are i think there are two dams and that might be the source of the confusion here there's one above the lake that is diverting the stream water around of the lake into the possible to some you get something called journey of pollution into the into the creek right now there'd be some bad runoff from that it would not be a good situation and we agree that you want to avoid that as i say our understanding  that could let water flow out if the water level were to rise in the low and spillway you mean it would go through the dam yeah you'd have to excavate and put it in there that's right and we've been told that that's sort of a reasonable measure to deal with that but you know this is candidly a pretty preliminary assessment based on not really knowing all the facts and not seeing everything out there my understanding right now is that there's no water actually pushing against that temporary dam because they've brought the level of the lake down so much by diverting all that water around it by pumping water out of the lake the water the water level the lake is actually quite low and so it would actually take a lot of snow melt combined with a lot of rain to create enough extra water to cause a problem there but another thing that's really important to be aware of here is that i'm told that well first of all be aware that the injunction applies to not only core alaska but also to the forest service and the corps of engineers who have jurisdiction over the site up there and my understanding is that neither the corps of engineers nor the forest service is tak can't agree or if there's some uncertainty about what the injunction would allow you can deal with that issue through a separate motion through a motion that's focused on that particular dispute at this point  resolve that it's premature to resolve that there needs to be more work among the parties including the agencies the jurisdiction to authorize whatever it is that cooler wants to do and so we think that's the best way to injunction just to deal with some unspecified uncertainty the better approach is to determine what measures are best to take first among all the parties and then only if there is some one certainty or dispute about that injunction i wish that i was an engineer and could speak with that expertise but i'm just a poor warrior and my expertise is limited but we did offer the af particularly of mr wilder and it's not as if we're just flying blind here we have a site approved engineering plan to go forward there is nothing in that plan that is  retrievable on reclaimable but there is an agreed potential problem of stability moving forward and the easiest way to deal with that will be to lift the injunction true your honor and keep in mind when i said it hardly deserves the term damn it's this is pervious dirt that's all it is and what we would be putting in is an earthen dam with know it's actually quite limited at the base of the lake i would say significantly less than five hundred feet at this stage of the game it looks more like over to cast what would be how much one hundred fifty one hundred it looks more like a roadway just at the at the base of the lake and it looks like kind of the the dams i'd put in my backyard sometimes to stop the flow of water that are quickly taken care of by water information you have the agencies haven't come to any conclusion that's correct all right thank you thank you that's part of the