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United States v. Homestake Mining Co.

Citation: 9 ELR 20245
No. No. 78-1728, 595 F.2d 421/13 ERC 1018/(8th Cir., 03/30/1979) Vacated

The Eighth Circuit Court of Appeals vacates a lower court's order, 8 ELR 20717, granting a mining company's motion under FED. R. CIV. P. 60(b)(5) for relief from a consent decree in an action to enforce discharge limitations in its national pollutant discharge elimination system (NPDES) permit. The district court erred in viewing § 309(a)(5)(B) of the 1977 Clean Water Act, which allows extensions of he statutory July 1, 1977 compliance date to April 1, 1979 in certain circumstances, as authorizing it to grant a time extension for compliance with defendant's NPDES permit which incorporates stringent effluent limitations based on state water quality standards. An examination of the statutory language and legislative history leads the court of appeals to conclude that § 309(a)(5)(B) authorizes extensions of only best practical technology-based effluent limitations and is thus inapplicable in this case. This conclusion is reinforced by the Dnvironmental Protection Agency's (EPA's) policy statement on the matter, which is both reasonable and, as a statutory interpretation by the agency administering the Act, entitled to deference. The court notes in addition that even if § 309(a)(5)(B) were applicable, the proper course would have been for the district court to remand the case to EPA for a discretionary determination as to whether the defendant met all the enumerated criteria for an extension. The district court instead invaded the Agency's primary jurisdiction by making findings on this question itself in the first instance. Acknowledging that unsuccessful good faith attempts at compliance might warrant modification of the consent decree under its own terms or constitute a defense to its enforcement, the court of appeals nonetheless holds that the extension order was based on both an erroneous view of the applicability of § 309(a)(5)(B) and a judicial intrusion into EPA's statutory discretion and therefore must be vacated.

Counsel for Plaintiff-Appellant
James W. Moorman, Ass't Attorney General; Jancy B. Firestone, Dirk D. Snel
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2757

Counsel for Defendant-Appellee
A. P. Fuller
Amundson & Fuller
215 West Main St., Lead SD 57754
(605) 584-2440

Hanson,* D.J. (joined by Gibson and Henley, JJ.)*