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United States v. Homestake Mining Co.

Citation: 8 ELR 20717
No. No. CIV78-5002, 12 ERC 1071/(D.S.D., 08/03/1978)

On defendant's motion for relief from the terms and conditions of a final consent decree regarding the treatment of pollutants discharged from a gold mine, the court rules that it has the power under FED. R. CIV. P. 60(b)(5) and the terms of the decree itself to grant defendant's motion because extraordinary circumstances and changed conditions have made continued enforcement of the decree inequitable. Mechanical failures, severe weather conditions, and labor strikes have frustrated defendant's extensive compliance efforts. In addition, after the consent decree was agreed to, Congress passed the Clean Water Act of 1977, § 309(a)(5)(B) of which allows the Environmental Protection Agency Administrator to grant compliance extensions to dischargers which are making good-faith efforts to comply with applicable discharge limitations. An examination of the statutory language and the legislative history indicates that Congress intended § 309(a)(5)(B) to apply to discharge permits based on state water quality standards as well as those focused on best practicable control technology. The court notes that defendant has met the prerequisites for receipt of an extension under § 309(a)(5)(B), including the making of a good-faith effort to comply with the decree in which over $14 million have been expended for the construction of a treatment facility.

Counsel for Plaintiff
David V. Vrooman, U.S. Attorney
Federal Bldg. & U.S. Courthouse, 400 S. Phillips St., Sioux Falls SD 57102
(605) 336-2980

Counsel for Defendant
A. P. Fuller
P.O. Box 898, Lead SD 57754
(605) 584-2440