ELR Citation: ELR 20146
No(s). s. 83-7764, -7961 (9th Cir. Dec 10, 1984)

In a suit brought under Federal Water Pollution Control Act (FWPCA) §509(b) challenging National Pollutant Discharge Elimination System (NPDES) permits issued by the Environmental Protection Agency (EPA) to Alaskan gold placer miners, the court holds that EPA erred by failing to require an effluent limitation for turbidity and by failing to hold a public hearing on effluent limitations for arsenic and mercury, and that certain other claims are moot or otherwise fail. The court initially holds that petitioners, a resident of Alaska who uses streams where placer mining occurs, an Alaskan environmental group, and an Alaskan mining industry organization, have standing under the injury-in-fact test.

Because the challenged permits have expired, the court considers whether the challenges are moot. The court holds that the claims meet the first of the two conditions for exception from the mootness doctrine: the challenged action does not last long enough to be fully litigated before it terminates. Due to the slow EPA administrative review process, the permits have not been declared final for judicial review purposes until after their expiration. The court reserves discussion of the second condition of the mootness exception, that the parties are likely to be subjected to the same action again, for consideration in the context of each specific claim raised by petitioners.

The court first discusses the three claims raised by the environmental group and the individual petitioner. The court holds that the first claim, that EPA erroneously required them to bear the burden of persuasion at the permit hearing on a best practicable technology (BPT) issue, became moot when EPA enacted revised regulations after the permits were initially issued that make clear the permit applicant has this burden. The second claim, that EPA erred in its determination of the appropriate BPT, is moot in light of the subsequent change to more stringent technological standards. The court holds that in the third claim, EPA erred in couching its permit limitations in terms of Alaska's water quality standard rather than establishing effluent limitations to achieve the state standards for total suspended solids, turbidity, arsenic, and mercury, is not moot because EPA has continued this practice in subsequent permits and it is likely that petitioners will be subjected to this practice again. Reaching the merits, the court holds that FWPCA §301(b)(1)(C) requires EPA to establish and include in permits whatever effluent limitations it determines are necessary to achieve the state water quality standards. Further, EPA erred by failing to provide a requested public hearing on effluent limitations for arsenic and mercury.

Turning to the six challenges raised by the mining group, the court first holds that the mining activities at issue release pollutants from a discernable conveyance and are therefore point sources subject to NPDES regulation. Second, the claim that EPA failed to comply with its nondiscretionary duty to enact industry effluent guidelines and thereby deprived them of the protection of formal rulemaking can only be brought in the district court pursuant to FWPCA §505(a)(2). Third, the court holds that the claim that the current regulation erroneously requires permit applicants to bear the burden of persuasion on permit issuance is not moot, but is time barred because it was not raised within the 90-day period required by FWPCA §509(b)(1)(E). Fourth, the claim that application of the permit conditions limiting discharge resulted in an uncompensated taking of the miners' state water rights to use the stream and cause deterioration in water quality downstream is not moot. However, the court finds no Fifth Amendment violation because the miners failed to show they were deprived of any economically viable use of their property. Fifth, the claim that the self-monitoring, reporting, and recordkeeping provisions of the permits violated the miners' Fifth Amendment privilege against self-incrimination is not ripe because they have not expressly invoked the privilege in response to specific matters. Finally, the court holds that a Fourth Amendment challenge to a permit condition granting Alaska and EPA the right to inspect the miners' premises and records is too speculative in that the miners have not alleged that a search has occurred.

Counsel for Petitioners
Jeffrey M. Eustis
Trustees for Alaska
823 Gambell St., Suite B, Anchorage AL 99501
(907) 276-4244

Counsel for Respondent
Margaret B. Silver
Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 382-7709

Counsel for Intervenor
Randell E. Farleigh
Farleigh & Waldock
601 W. 5th Ave., Anchorage AL 99501
(907) 274-6641

Before CHAMBERS, FERGUSON, and BEEZER, Circuit Judges.