Trustees for Alaska v. E.P.A.

• Decision Date: 10 December 1984
• Docket Number: Nos. 83-7764,83-7961,s. 83-7764
• Citation: 749 F.2d 549
• Parties: , 15 Envtl. L. Rep. 20,146 TRUSTEES FOR ALASKA and Gilbert M. Zemansky, Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, Alaska Miners Association, Inc., Intervenor. ALASKA MINERS ASSOCIATION, INC., Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, Trustees for Alaska, et al., Intervenors.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 549

749 F.2d 549

21 ERC 2222, 15 Envtl. L. Rep. 20,146

TRUSTEES FOR ALASKA and Gilbert M. Zemansky, Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, Alaska Miners Association, Inc., Intervenor.

ALASKA MINERS ASSOCIATION, INC., Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, Trustees for Alaska, et al., Intervenors.

Nos. 83-7764, 83-7961.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 21, 1984.

Decided Dec. 10, 1984.

Jeffrey M. Eustis, Randall E. Farleigh, Farleigh & Waldock, Anchorage, Alaska, for petitioners.

Margaret B. Silver, E.P.A., Scott Slaughter, U.S. Dept. of Justice, Land & Nat. Resources Div., Washington, D.C., for respondent.

Petition for Review of Decision of the Administrator of the Environmental Protection Agency.

Before CHAMBERS, FERGUSON and BEEZER, Circuit Judges.

FERGUSON, Circuit Judge:

These consolidated cases involve petitions for review of approximately 170 National Pollutant Discharge Elimination System (NPDES) permits issued by the Environmental Protection Agency (EPA) to Alaska gold placer miners in 1976 and 1977.

I. BACKGROUND

A. Placer Mining

A "placer" is an alluvial or glacial deposit containing particles of gold. Placer mining to remove the gold is often done on a large scale. The average mining operation requires an investment of $250,000 to $500,000 for bulldozers, a front-end loader, sluice box, airplane, airfield and buildings. Mining sites are usually in remote areas; many have no access by road. Miners remove surface soil and vegetation, then excavate the gold-bearing material (pay dirt) from the placer deposit. Next, the miners remove the gold from the pay dirt by a gravity separation process known as sluicing. Miners place the pay dirt in a sluice box, which is a channel having small submerged dams or riffles attached to its bottom. When rapidly moving water flows through the sluice box, the heavier particles, including gold, are caught in the riffles. Lighter materials, including sands, silts, and clays remain suspended in the waste water released from the end of the sluice box.

Untreated discharge water from these large-scale operations can kill fish and ruin their habitats before the suspended materials eventually settle out. The increased sediment load can alter stream flows or cause flooding and covering of historic sites. In addition, placer mining may release toxic arsenic and mercury into streams. Mercury is sometimes used in placer mining operations to increase the settling of gold-bearing materials. If mercury is added to the water flowing through the sluice box, it may contaminate the waste water. Arsenic apparently occurs in conjunction with some gold deposits in Alaska and may be released as a result of mining activities.

B. The Federal Water Pollution Control Act

Numerous opinions construing the statute have traced the history of the Federal Water Pollution Control Act (Act) and its amendments, e.g., EPA v. State Water Resources Control Board, 426 U.S. 200, 202-09, 96 S.Ct. 2022, 2023-26, 48 L.Ed.2d 578 (1976); Montgomery Environmental Coalition v. Costle, 646 F.2d 568 (D.C.Cir.1980). We thus review its provisions only briefly. In 1972, Congress enacted amendments to the Federal Water Pollution Control Act, Pub.L. No. 92-500, 86 Stat. 816, codified at 33 U.S.C. Secs. 1251-1376, declaring No industry-wide, nationally applicable effluent limitations have yet been promulgated for the placer mining industry. However, the Act authorizes the EPA to issue permits on a case-by-case basis upon "such conditions as the Administrator determines are necessary to carry out the provisions of this [Act]." 33 U.S.C. Sec. 1342(a)(1). In making this determination, the Agency must consider:

                the "national goal that the discharge of pollutants into the navigable waters be eliminated by 1985," Sec. 1251(a)(1).  The Act established a comprehensive scheme for federal regulation of water pollution, the National Pollution Discharge Elimination System, as a means of achieving and enforcing effluent limitations.  Under the NPDES, it is unlawful to discharge a pollutant without obtaining a permit and complying with its terms.  Sec.   1311(a).  For permits issued before July 1, 1977, as were those in this case, the Act requires limitations based on application of the "best practicable control technology currently available" (BPT), Sec. 1311(b)(1)(A).  By July 1, 1984, the Act requires industry to achieve effluent limitations for specified pollutants based on the application of the more stringent "best available technology economically achievable" (BAT), Sec. 1311(b)(2)(A).  With regard to other pollutants identified pursuant to Sec. 1314(b)(4), effluent limitations after July 1, 1984 require application of the best conventional pollutant control technology (BCT), Sec. 1311(b)(2)(E)
                

[T]he total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application, ... the age of equipment and facilities involved, the process employed, the engineering aspects of the application of various types of control techniques, process changes, non-water quality environmental impact (including energy requirements), and such other factors as the Administrator deems appropriate.

33 U.S.C. Sec. 1314(b)(1)(B).

C. Procedural History

Under former 40 C.F.R. Sec. 125.36 (1978), any interested person who has specified an interest which would be affected by the proposed issuance, denial, or modification of a permit could be joined as a party. Pursuant to that regulation, Gilbert M. Zemansky requested an adjudicatory hearing to review approximately 170 NPDES permits issued in 1976 and 1977 to Alaska placer miners. Zemansky is a resident of Alaska who uses for recreational purposes a number of streams where placer mining operations are conducted. The Trustees for Alaska joined the action. The Trustees for Alaska (Trustees) is an organization established and supported by persons interested in using and protecting the Alaskan environment. Members and employees of the organization use the streams which are subject to placer mining discharge for subsistence and recreation. The Trustees and Zemansky contended that the permits were too lenient and that the EPA should have required the miners to eliminate discharge entirely by recycling sluice water. Recycling is accomplished by pumping waste water which collects in a settling pond back to the site of the mining operation.

The Alaska Mining Association also joined the action. The Alaska Mining Association (Miners) is a trade organization which represents the mining industry in Alaska. Approximately 40 of the permittees are or have been members of the organization. The Miners protested that the permit conditions were too stringent and that no discharge limitations should have been imposed. In order to achieve the 0.2 ml/l limitation on settleable solids, each miner would have to construct a settling pond where waste water discharges from mining operations would be impounded for a period of time to allow silt, sand, and clay particles to "settle out" before the waste water is returned to the receiving waters. The amount of particles that settle out while in the pond depends upon the pond's holding capacity and the period of time that the waste water is held there. The type of settling pond envisioned in the permits would require waste water to be held for a 24-hour period and would have Although the Miners raised additional statutory and constitutional arguments for limiting the EPA's action, the Administrative Law Judge (ALJ) limited the issues for the hearing to questions of best practicable control technology. The ALJ reserved the parties' rights to raise the stricken issues on appeal. The ALJ held an initial adjudicatory hearing in October 1977. Based on the ALJ's findings, the Regional Administrator issued an initial decision in October 1978, upholding the terms of the permits.

the capacity to hold one day's water use. The miners argue that the costs of constructing and maintaining such ponds is prohibitive. Moreover, according to the Miners, there are topographical constraints which make the construction of settling ponds impracticable or, in some instances, impossible.

The Trustees and the Miners petitioned the Administrator of the EPA for review. On March 1980, the Administrator issued his decision on review. The Administrator remanded for determination whether recycling constitutes BPT. The hearing on remand was held in March and June 1981; the presiding officer issued an Initial Decision on Remand on March 17, 1982. The presiding officer held that zero discharge from recycling was not "practicable." The effect of this decision was to uphold the use of settling ponds as BPT. The Administrator ultimately denied review and the Initial Decision on Remand became final on September 20, 1983. The Trustees and Zemansky petitioned for review in this court; the court consolidated their petitions.

D. The Permits

Each of the permits issued in 1976-77 had identical effluent limitations, monitoring requirements, and reporting requirements. The permits required the miners to treat waste water so that the maximum daily concentration of settleable solids was 0.2 milliliters per liter (ml/l). The permits incorporated the State of Alaska's water quality standard, which limits the increase over natural turbidity to 25 Jackson Turbidity Units (JTU) at a point 500 feet downstream from the discharge point, but did not limit arsenic or mercury discharge.

The permits required the miners to conduct periodic monitoring of the discharge water for the concentration of settleable solids, to report the results of their testing to the EPA enforcement division and the State of Alaska, and to allow the State and the EPA to inspect the permittees' premises and to review their records. These permits expired under their own terms after five years. They no longer...