Subject: NPDES permit vs State permit
Date: Sat, 26 Feb 2005 09:11:04 -0800

Hi Dan;

Yesterday I got a phone call from our State Representative. 
He had Holly XXXXXXXXXXXXXX of DEQ in the room with him on the speaker phone.

We talked about the permit.... and have reached a point where DEQ wants to
know if the miners will accept a NPDES permit or not.

If "no", then DEQ will halt work on the proposed permit... and may or may
not work on a State permit.  This would leave us with no permit for this
coming summer.  If we are correct that we do not need a NPDES or any other
CWA permit, then we should(?) be safe from 3rd party suits.  If we are
wrong, we run the risk of getting sued by greenies.

If "yes", then DEq is now saying they could change the ammount on the fees
(down to say $50/day for a permit violation, $500 for an intentional
violation).  They are talking about no turbidity restrictions on 4" dredge
and smaller... and larger than 4" would be held to 1800 NTUs over a 30 day
period figured at 10 NTUs 6 hrs. per day for 30 consecutiive days.

My Representative wants me to contact him Monday afternoon with an answer
concerning whether or not the miners will accept NPDES or not.  I may have
to go to Salem for a meeting with him and DEQ Tuesday depending on the
answer.

At this point, I need to know as clear as possible whether we legally need
a NPDES or not.  Any help you can give me in the next day or so would be
greatly appreciated.

Thanks Dan,

Tom XXXXXXXXXXX

    After extensive research, I have found that you (Tom XXXXXXXXXXXX) are
correct; ODEQ cannot prepare, acquire, or require, an NPDES Program Permit
or NPDES Permit for suction (vacuum) dredging; not State and not Federal! 
The exemptions in the applicable statutes and the applicable regulations are
clear; suction dredging is not administered under sec. 402 but, instead,
exclusively under sec. 404 of the CWA, as amended.  It will take a few days
to write my findings up.  Be patient; please!  You may, however, submit this
conclusion to ODEQ, at this time.

    The miners cannot accept an NPDES Program Permit because an NPDES
Program Permit cannot be applied to suction dredging.  Nor, would one (an
NPDES Program Permit and regulations promulgated thereupon) be of any use to
the ODEQ for they would be avoidable as a miner does not have a duty to
comply pursuant to 40 CFR s 122.21(a).  Even more profound, (because
suction dredge operations are small businesses), the Draft ODEQ Regulations,
as proposed by ODEQ, are avoidable because they are preclusive; (see 40 CFR
part 21).  Probably the greatest obstacle to the Draft ODEQ Regulations, as
proposed by ODEQ, is the fact that they were driven (created and caused) by
entities and individual officers who have clear conflicts of interests. (See
40 CFR s 233.4 and  40 CFR part 25)  This is strictly forbidden. 
Dan Cooper

Since I am not an attorney this is an
inappropriate title.  I am a professional planner or a planning consultant. 
Please use these titles.