ELR Citation: ELR 20032
No(s). 92-70239 (9th Cir. Oct 14, 1993)

The court upholds national pollution discharge elimination system (NPDES) permits issued by the U.S. Environmental Protection Agency (EPA) that require gold placer miners in Alaska to meet state water quality standards for turbidity and arsenic, and to monitor settleable solid discharges once per day of discharge. The court first holds that EPA's establishment of a direct effluent limitation for turbidity, rather than a volumetric effluent limitation for settleable solids, is supported by substantial evidence. The turbidity limitation is in compliance with Alaska's water quality standards—as required by the Federal Water Pollution Control Act (FWPCA), and economic and technological restraints are not valid considerations. The court holds that EPA's establishment of an effluent limitation for arsenic is entitled to deference as a reasonable interpretation of Alaska's water quality standards governing toxic substances. In addition, EPA adequately addressed requirements regarding limitations for arsenic previously imposed by the Ninth Circuit, and correctly included in the NPDES permit provisions the testing procedure for arsenic established by 40 C.F.R. part 36. The court next holds that EPA's requirement that discharge for settleable solids be monitored once per day of discharge, rather than once per day of sluicing, is supported by substantial evidence. The miners have not demonstrated that the monitoring requirement, which applies only to discharges associated with mining operations, is unreasonable. The court further holds that EPA had discretion to accept Alaska's certification of the miners' permits beyond the 60-day period provided in 40 C.F.R. §124.53(c)(3). The Regional Administrator may authorize an extension of the state certification deadline upon finding that unusual circumstances require more time, and Congress intended to encourage state certification in order to protect the nation's waterways through a dual federal and state permitting process. The court notes that EPA lacked authority to reject Alaska's imposition of a more stringent settleable solids limitation, and the miners' only recourse is to challenge the state certification in state judicial proceedings. The court upholds the procedures EPA employed in issuing identical NPDES permits to the miners, noting that to the extent petitioners challenge EPA's enforcement of contested conditions, they should do so as a defense to any enforcement proceedings in district court under FWPCA §309. The court also finds that the miners' claims regarding notice of enforceable conditions lack merit. The court holds that the miners' request that the permits include a mixing zone for arsenic and their challenge to the absence of terms involving hydraulic removal of overburden in the 1987 permits are moot. Finally, the court holds that it lacks jurisdiction to hear the miners' claims regarding improper issuance of FWPCA §309 compliance orders and Fifth Amendment takings, and seeking review of national effluent guidelines and standards.

Counsel for Petitioners
Rosalie A. Rybacheck
P.O. Box 55698, North Pole AK 99705
(907) 488-6453

Counsel for Respondents
James W. Rubin
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Fletcher and Alarcon, JJ.