Rybachek v. U.S. E.P.A.

• Court: U.S. Court of Appeals — Ninth Circuit
• Writing for the Court: Before O'SCANNLAIN, LEAVY and TROTT; O'SCANNLAIN
• Citation: Rybachek v. U.S. E.P.A., 904 F.2d 1276 (9th Cir. 1990)
• Decision Date: 16 May 1990
• Docket Number: 88-7403,Nos. 88-7393,s. 88-7393
• Parties: , 58 USLW 2735, 20 Envtl. L. Rep. 20,973 Stanley C. RYBACHEK; Rosalie A. Rybachek, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. ALASKA MINERS ASSOCIATION, INC., Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.

Page 1276

904 F.2d 1276

31 ERC 1585, 58 USLW 2735, 20 Envtl.

L. Rep. 20,973

Stanley C. RYBACHEK; Rosalie A. Rybachek, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.

ALASKA MINERS ASSOCIATION, INC., Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.

Nos. 88-7393, 88-7403.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 11, 1989.

Decided May 16, 1990.

Rosalie A. Rybachek, North Pole, Alaska, pro se.

Kathleen A. Weeks, Pacific Legal Foundation, Anchorage, Alaska, for petitioner Alaska Miners Ass'n.

Thomas R. Lotterman and Brian J. Plant, Dept. of Justice, Land & Natural Resources, Washington, D.C., Steven Neugeboren, E.P.A., Washington, D.C., for respondent.

Michael M. Wenig, Trustees for Alaska, Anchorage, Alaska, for the intervenors Trustees for Alaska and Northern Alaska Environmental Center.

Petitions for Review of a Decision of the Environmental Protection Agency.

Before O'SCANNLAIN, LEAVY and TROTT, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

In a dubious reincarnation of the 1890's world of Yukon poet Robert Service, we deal here a century later with "strange things done in the midnight sun by the men who moil for gold." ¹ We are asked to determine the validity of Environmental Protection Agency regulations under the Clean Water Act which govern placer mining and have particular impact on the gold-rich streambeds of Alaska. Because the regulations are complex and the issues raised are multitudinous, our opinion (written, alas, in arid prose) is outlined in some detail:

I

BACKGROUND

A. Placer Mining

Placer mining is one of the four basic methods of mining metal ores; it involves the mining of alluvial or glacial deposits of loose gravel, sand, soil, clay, or mud called "placers." These placers often contain particles of gold and other heavy minerals. Placer miners excavate the gold-bearing material (paydirt) from the placer deposit after removing the surface vegetation and non-gold-bearing gravel (overburden). The gold is then separated from the other materials in the paydirt by a gravity-separation process known as "sluicing."

In the sluicing process, a miner places the ore in an on-site washing plant (usually a sluice box) which has small submerged dams (riffles) attached to its bottom. He causes water to be run over the paydirt in the sluice box; when the heavier materials (including gold) fall, they are caught by the riffles. The lighter sand, dirt, and clay particles are left suspended in the wastewater released from the sluice box.

Placer mining typically is conducted directly in streambeds or on adjacent property. The water usually enters the sluice box through gravity, but may sometimes also enter through the use of pumping equipment. At some point after the process described above, the water in the sluice box is discharged. The discharges from placer mining can have aesthetic and water-quality impacts on waters both in the immediate vicinity and downstream. Toxic metals, including arsenic, cadmium, lead, zinc, and copper, have been found at a higher concentration in streams where mining occurs than in non-mining streams.

It is the treatment of the sluice-box discharge water before it reenters a natural water course that is at the heart of this case.

B. Statutory Framework

Congress enacted the Clean Water Act to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. Sec. 1251(a) (Supp. V 1987). ² Under the Act, the EPA must impose and enforce technology-based effluent limitations and standards through individual National Pollutant Discharge Elimination System ("NPDES") permits. See 33 U.S.C. Sec. 1342 (1982 & Supp. V 1987). These permits contain specific terms and conditions, as well as numerical discharge limits, which govern the activities of pollutant dischargers. Through the Clean Water Act, Congress has directed the EPA to incorporate into the permits increasingly stringent technology-based effluent limitations.

Congress specified a number of means for the EPA to impose and to enforce these limitations in NPDES permits. For instance, it requires the Agency to establish effluent limitations requiring dischargers to use the "best practicable control technology currently available" ("BPT") within an industry. 33 U.S.C. Secs. 1311(b)(1)(A), 1314(b)(1)(A) (1982). These limits are to represent "the average of the best" treatment technology performance in an industrial category. See EPA v. National Crushed Stone Ass'n, 449 U.S. 64, 76 n. 15, 101 S.Ct. 295, 303 n. 15, 66 L.Ed.2d 268 (1980). The EPA is further required to promulgate limitations both for discharge of toxic pollutants by mandating that an industry use the "best available technology economically achievable" ("BAT") and for discharge of conventional pollutants by requiring the use of the "best conventional pollution control technology" ("BCT"); the congressionally imposed deadline for promulgation of these limitations was March 31, 1989. 33 U.S.C. Secs. 1311(b)(2)(A), (C), (D), and (E); 1314(a)(4), (b)(2), and (b)(4) (1982 & Supp. V 1987). Whether a pollutant should be considered toxic has been left to the discretion of the EPA. See 33 U.S.C. Sec. 1317(a)(1) (1982); see also 40 C.F.R. Sec. 401.15 (1989) (designating, pursuant to 33 U.S.C. Sec. 1317(a)(1), 65 toxic pollutants).

In addition, new pollution sources in an industry must meet a separate set of standards called new-source performance standards ("NSPS"). 33 U.S.C. Sec. 1316 (1982). These standards limit the discharge of pollutants by new sources based on the "best available demonstrated control technology" ("BDT"). Id. Finally, the EPA is authorized to establish best management practices ("BMPs") "to control plant site runoff, spillage or leaks, sludge or waste disposal, and drainage from raw material storage" in order to diminish the amount of toxic pollutants flowing into receiving waters. 33 U.S.C. Sec. 1314(e) (1982).

C. Rulemaking History

On November 20, 1985, proceeding under the Clean Water Act, the EPA proposed regulations for placer mining. See 50 Fed.Reg. 47,982 (1985). For most mines ³ processing fewer than 500 cubic yards of ore per day ("yd ³/day"), the EPA proposed BPT effluent limitations of 0.2 millilitres per litre ("ml/l") of discharge for settleable solids and 2,000 milligrams per litre ("mg/l") for total suspended solids. For mines processing more than 500 yd ³/day of ore, the EPA proposed more-stringent BCT and BAT limitations, as well as new-source performance standards (NSPS) prohibiting the discharge of processed wastewater. Twice during the rulemaking process, the Agency published notices of new information and requested public comment on additional financial and technical data. See 51 Fed.Reg. 5,563 (1986); 52 Fed.Reg. 9,414 (1987).

As a result of its studies, the comments received during the review-and-comment periods, and new studies undertaken in response to the submitted comments, the EPA promulgated final effluent-limitation guidelines and standards on May 24, 1988. See 53 Fed.Reg. 18,764 (1988). The EPA established a BPT limitation, based upon simple-settling technology, for settleable solids of 0.2 ml/l for virtually all mines. ⁴ The final rule also established BAT limitations and NSPS, based on recirculation technology, restricting the flow of processed wastewater that could be discharged. ⁵ In addition, the EPA promulgated five BMPs to control discharges due to mine drainage and infiltration. These regulations were to become effective on July 7, 1988.

During the rulemaking process, commenters had expressed concerns about the impact that the proposed regulations might have on small placer mines. In promulgating the final rule, the EPA therefore solicited, for a sixty-day period, further public comment on the economic impact of the rule on small mines. See id. at 18,779. The EPA stated that it would modify the rule if "significant additional data [were] presented to [it] on small placer mines during this comment period demonstrating that different effluent guidelines limitations and standards are warranted on a national basis...." Id. Following the close of the special comment period, the EPA published a notice stating that it had determined not to modify the rule and making available the record construing the data and analyses that the Agency had generated in response to the comments. See 54 Fed.Reg. 25, 28 (1989).

The Alaska Miners Association ("AMA") and Stanley and Rosalie Rybachek timely petitioned this court for review of the EPA's regulations. ⁶ We ordered the petitions consolidated.

II

DISCUSSION

A. Standard of Review

Our review of the EPA's regulations is governed by the Administrative Procedure Act ("APA"), the Clean Water Act, and the Constitution. Under the APA, we may set aside the EPA's actions here if we find them to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law"; or "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right"; or "without observance of procedure required by law." 5 U.S.C. Sec. 706(2)(A), (C), (D) (1988). Our function is to determine whether the Agency "has considered the relevant factors and articulated a rational connection between the facts found and the choice made." Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 105, 103 S.Ct. 2246, 2256, 76 L.Ed.2d 437 (1983). We must base this determination on a "review [of] the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error." 5 U.S.C. Sec. 706(2) (1988).

Because the EPA has been charged with administering the Clean Water Act, we must show great deference to the Agency's interpretation of the Act. See National Crushed Stone Ass'n, 449 U.S. at 83, 101 S.Ct. at 306 (court must show great deference to the interpretation given to a statute by the...