ELR Citation: ELR 20782
No(s). s. S-2369, -2370 (Alaska Jul 28, 1989)

The court holds that the Alaska Department of Environmental Conservation (DEC) may certify draft national pollution discharge and elimination system (NPDES) permits covering a number of permittees, provided the certification ensures that state water quality standards will be met. The Environmental Protection Agency (EPA) proposed to modify or issue 539 NPDES permits for placer mining in the state. However, EPA sent DEC only one draft permit for certification because EPA intended to issue 539 identical permits. DEC issued a blanket certification conditioned on the adoption of a more stringent 0.2 ml/l limit for settleable solids that applied to all permits. The court holds that federal law does not require the state to certify NPDES permits individually. The procedures for certification are left to the state's discretion. The court also holds that DEC's imposition of a 0.2 ml/l effluent limit for settleable solids on all placer mining operations through DEC's blanket NPDES permit certification is not an improper promulgation of de facto regulations. The limits are now set by the EPA, and Alaska has not set its limits lower, so Alaska's Administrative Procedure Act is not applicable. The court finds that the limitation reasonably assures compliance with state water quality standards. There is substantial evidence in the record to support DEC's finding that the 0.2 ml/l limit will lead to compliance with state water quality standards. The court holds that DEC's interpretation of the standard of certainty required of its certification under federal and state law has a reasonable basis.

Counsel for Appellants
William R. Satterberg
709 Fourth Ave., Fairbanks AK 99701
(907) 452-4454

Michael Wenig
Trustees for Alaska
725 Christensen Dr., Ste. 4, Anchorage AK 99501
(907) 276-4244

Counsel for Appellees
John A. McDonagh, Ass't Attorney General
101 12th Ave., Box 2, Fairbanks AK 99701-6682
(907) 456-0245

Grace Berg Schaible, Attorney General
P.O. Box K, Juneau AK 99811
(907) 465-3600

Before MATTHEWS, C.J., and RABINOWITZ, BURKE, COMPTON, and MOORE, JJ.