ELR Citation: ELR 20973
No(s). s. 88-7393, -7403 (9th Cir. May 16, 1990)

The court holds that the Environmental Protection Agency's (EPA's) regulations under the Federal Water Pollution Control Act (FWPCA) governing placer mining are within the Agency's mandate from Congress and are not arbitrary or capricious. EPA promulgated regulations for placer mining that set "best practicable control technology currently available" (BPT), "best conventional pollution control technology," "best available technology economically achievable" (BAT), and new source performance standards for the discharging of processed wastewater from placer mining operations. The court first holds that EPA did not exceed the scope of its authority under the FWPCA in promulgating the challenged regulations because the placer mines discharge into waters of the United States and the discharge itself contains pollutants within the meaning of the FWPCA. The term "pollutant" encompasses the materials segregated from the gold in placer mining, regardless of whether these materials are dredged spoil, rock, or sand from the bank alongside a stream or from the streambed itself.

The court next holds that EPA's addition of over 6,000 pages to the administrative record, after the public review-and-comment period ended, did not violate petitioners' due process rights because petitioners' right was to comment on the proposed regulations, not on EPA's responses to public comments. Adherence to petitioners' view would trigger a new comment period any time EPA added responses to public comments. The court holds that EPA's failure to propose in advance the actual wording of five best management practices (BMPs) to be included in National Pollutant Discharge Elimination System permits does not make the BMPs invalid because EPA is only required to publish the terms or substance of proposed rules. Here, EPA's discussions of the BMPs in both the original and second notice clearly described the subjects and issues the BMPs involved. Moreover, the court noted that it would not strike down EPA's promulgation of BMPs merely on the grounds that the 14 sentences about the BMPs in EPA's original proposal were too short a notice. Inclusion of the BMPs in the final rule was in character with the original proposal and a logical outgrowth of the notice and comments received.

The court next holds that EPA provided the public with sufficient notice of the proposed adoption of recycling as BAT for small mines. EPA published a second notice of new information and request for comments in which it stated that recycling as BAT was economically achievable for small mines and that BAT limitations for those mines would be zero discharge of process wastewater. Evidence shows that EPA received comments regarding these elements of the notice. The court next holds that EPA properly considered costs in determining that settling ponds are BPT and in establishing BPT effluent limitations for settleable solids. Moreover, EPA properly weighed these costs against the benefits of settling ponds in concluding that the reduction in pollution associated with such compliance justified the costs. The court also holds that EPA's BAT limitations were both technologically available and economically achievable. EPA weighed the costs that recirculation would impose on gold placer mining, including the costs of pumps to recirculate water from settling ponds, piping, fuel, and equipment. EPA considered the relevant factors and articulated a rational connection between the facts found and the choice made. Since the record reveals that EPA adopted BAT standards to control the discharge of toxic pollutants, petitioners' claim that EPA adopted BAT to regulate the level of total suspended solids is incorrect. Further, EPA's decision to treat settleable solids as a nonconventional pollutant and thus subject to BAT standards was reasonable. Finally, the court upholds EPA's determination that the removal of solids in mine discharges is associated with substantial reduction of the concentration of all toxic metals in treated wastewater, and thus subject to BAT limitations.

The court next holds that EPA did not act arbitrarily or capriciously in setting forth regulations for new-source placer mines calling for an ad hoc, case-by-case application of criteria in determining whether a mine is a new source. No one factor automatically or immediately makes a mine a new source, and EPA's criteria are within the authority Congress gave the Agency under the FWPCA. The court finds that there is no inconsistency in EPA's description of the costs of recycling and settling ponds. Considering the three-and-one-half years that EPA accumulated, processed, commented on, and revised its data, any slight discrepancies in EPA's calculations are understandable and minor. The court next holds that EPA did not intentionally or fraudulently distort the processes and thus the results of its testing. EPA's estimate that toxic pollutants remained in the treated water at one-half the detectable level was reasonable and within EPA's broad discretion in its selection of data and in the method of calculation. The court holds that EPA also gave adequate consideration to environmental impacts other than water quality. EPA considered energy requirements necessitated by its rule, and the FWPCA leaves EPA with broad discretion in deciding how non-water quality environmental impacts will be taken into account. The court next holds that EPA was not required to study issues or consider data related to hydraulic overburden removal, which is different from hydraulic mining. EPA explained during the comment period that the final rule applies only to discharges resulting from the processing of ore and not from the removal of overburden.

The court next holds that EPA has not mandated the use of recirculation technology, even though it determined that recirculation is BAT. Merely because EPA established that zero discharge of process wastewater is achievable and should be the BAT limitation and new source performance standard, combined with the fact that recirculation is the only technology currently available to achieve that limit, does not mean that EPA is endorsing a single technology. Thus, EPA's setting of zero-discharge limitations based on recirculation results was within its mandate under the FWPCA. Finally, the court declines to rule on whether EPA's placer mining regulations do not constitute a taking under the Fifth Amendment. A takings claim is not ripe for judicial resolution, since petitioners do not claim that a particular item of their property has been taken by EPA's final rule. Moreover, because this court's jurisdiction is statutorily granted and Congress has specified federal district courts as the proper forums for takings claims, this court lacks authority to hear that claim.

Counsel for Petitioner
Jim Burling
Pacific Legal Foundation
2700 Gateway Oaks, Ste. 200, Sacramento CA 95833
(916) 641-8888

Counsel for Respondent
Thomas R. Lotterman
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2285

Steven Neugeboren
Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 382-7703