ELR Citation: ELR 21135
No(s). 91-70176 (9th Cir. May 27, 1992)

The court holds that the U.S. Environmental Protection Agency's (EPA's) stormwater discharge rule under Federal Water Pollution Control Act (FWPCA) §402(p), which includes stormwater discharges from inactive mines within the definition of discharges "associated with industrial activity" for which a national pollutant discharge elimination system (NPDES) permit is required, is consistent with congressional intent and is not arbitrary and capricious. The court first holds that EPA's regulation of inactive mines under FWPCA §402(p)(2)(B) is consistent with the plain language and legislative history of the FWPCA, and is reasonable. FWPCA §402(p)(1)(B) allows EPA to require a permit for a discharge associated with industrial activity and Congress did not stipulate that the activity must occur concurrently with the discharge of stormwater. Moreover, EPA has concluded that discharges from areas of past industrial activity at a variety of facilities, including mines, may be associated with that industrial activity. Even accepting that "operations" must be currently active, the mining operation exemption in §402(1) does not necessarily imply that only active operations were to be regulated under §402(p) or any other provisions of the FWPCA. The court also finds that Congress left it to EPA to define a "discharge associated with industrial activity," specifying only that the term refers to discharges "directly related to manufacturing, processing or raw materials storage areas at an industrial plant" and not to discharges associated with parking lots and administrative and employee buildings. Although nothing in the legislative history reflects a congressional intent to impose permitting requirements on inactive mines, nothing was presented to indicate that Congress would not have allowed EPA to require such permits. If Congress has failed to address the issue, or if the statute is silent or ambiguous, courts must defer to EPA's reasonable interpretation of the statute. EPA noted that some mine sites represent a significant source of contaminated stormwater runoff, and because EPA has exempted from the permitting requirement mine sites where stormwater does not come into contact with any overburden, raw material, byproduct, or waste product, EPA's regulation of inactive mines only applies to sites at which stormwater discharge is likely to have become contaminated through association with industrial activity. Moreover, EPA's interpretation is consistent with the overall goals of the FWPCA. Thus, EPA's regulation of inactive mines under §402(p)(2)(B) is reasonable.

The court next holds that EPA did not arbitrarily promulgate its stormwater rule in conflict with the Surface Mining Control and Reclamation Act's (SMCRA's) abandoned mine lands (AML) program. The existence of SMCRA's AML program does not limit EPA's authority to regulate mine discharges under the FWPCA. While the AML program was enacted to help correct the environmental problems caused by past coal mining, nothing in its legislative history suggests that Congress intended it as the exclusive means to address these problems. The AML program does nothing to regulate the discharge of pollutants from abandoned mine lands. Thus, there is no reason to suppose that the AML program serves the same purpose as the stormwater rule, nor that any inconsistency exists between the obligations of mine owners under the AML program and the stormwater rule. Moreover, nothing in the language or legislative history of the AML program or SMCRA indicates a congressional intent to exempt inactive mines from the NPDES permit requirement. Further, no evidence has been presented that EPA's stormwater rule duplicates, varies, or frustrates the goals or administration of SMCRA, and EPA's classification of discharges from inactive mines as "associated with industrial activity" is consistent with its earlier practice.

The court next holds that EPA acted reasonably in both determining that mines reclaimed under pre-SMCRA state laws should not be exempt from NPDES permit requirements, and in exempting from the definition of "associated with industrial activity" in the stormwater rule non-coal mines reclaimed under federal or state laws similar to SMCRA. Although EPA's stormwater rule does not exempt coal mining sites reclaimed under SMCRA's interim program, the differences between SMCRA's interim and final programs make this a reasonable choice. Moreover, because sites reclaimed under older laws might continue to discharge contaminated stormwater, EPA's decision to limit the exemption tomines released from reclamation requirements on or after the stormwater rule's effective date is not arbitrary and capricious.

The court also holds that the stormwater rule does not impose retroactive liability on owners of inactive mines, because it only regulates discharges of contaminated stormwater that occur in the future. Although the rule may reduce the financial attractiveness of mine ownership, the rule requires only that owners or operators apply for permits for future discharges from inactive mines. The fact that the present contamination is the result of past mining activities does not make the rule retroactive. Moreover, regulations are not retroactive merely because they require a change in existing practices. The court holds that EPA satisfied the notice of requirement of the Administrative Procedure Act, because the final rule and the proposed rule are almost identical, and EPA specifically requested—and received—comments in response to this notice in the Federal Register. Finally, the court holds that although the record shows that EPA failed to understand the number of inactive mines covered by its rule, EPA was not required to consider economic and administrative impacts in formulating this rule. The legislative history suggests that Congress wanted to limit administrative burdens on municipal regulatees, but no such suggestion exists with respect to industrial dischargers. Economic and administrative burdens are properly considered in determining permit conditions, but not in deciding which facilities must obtain a permit.

Counsel for Petitioners
John A. Macleod
Crowel & Moring
1001 Pennsylvania Ave. NW, Washington DC 20004
(202) 624-2500

Counsel for Respondent
Randolph L. Hill
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 260-2090

Before Pregerson and O'Scannlain, JJ.