Miners Advocacy Council (Board decision, September 3, 1992)

Plain-English summary

The Miners Advocacy Council challenged 31 NPDES permits issued by EPA Region X to Alaska placer miners. The dispute concerned whether a permit could authorize discharges from sluicing while excluding discharges from hydraulic removal of overburden at the same mine. The Environmental Appeals Board held that the permit writer must consider the entire process when an applicant requests a single permit, although the limits must be based on site-specific facts. It remanded the proceeding and directed the region to notify each permit holder that it could apply for a revised permit covering both operations. The remand order left the proceeding pending until the amended-application deadline or the later permit issuance and appeal process described in the order.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 122.21, 124.15, 124.74, 124.91, and 125.3.
• Outcome: The proceeding was remanded to EPA Region X for notice to permit holders and site-specific consideration of revised applications.
• Key point: A technology-based NPDES permit must consider the entire process employed upstream from a discharge point when an applicant seeks coverage for the integrated operation, while the remand remains pending until the next agency action described in the order.

Full text (EPA EAB public release)

230 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
IN THE MATTER OF MINERS ADVOCACY COUNCIL
NPDES Appeal No. 91-23
REMAND ORDER
Decided September 3, 1992
Syllabus

In a previous decision in this appeal, the Board granted review on the issue of whether 40 CFR §125.3(d), which requires a permit writer to consider the “process employed” in setting case-by-case limitations in technology-based permits, precludes the Region from dividing the integrated placer mining process by authorizing dis- charges from one part of that process (sluicing) while not authorizing discharges from another part of that process (hydraulic removal of overburden). The parties have subsequently briefed this issue.

Held: The permit must consider the entire process, including the use of hydraulic removal of overburden, if any permit applicant so requests. The actual terms of the permit would depend on a site-specific factual analysis. The proceeding is remanded to the Region with direction to notify the permit holders of their right to apply for a single permit covering discharges from both sluicing operations and hydraulic overburden operations at the same mine site.

Before Environmental Appeals Judges Nancy B. Firestone, Ronald L. McCallum, and Edward E. Reich.

Opinion of the Board by Judge Reich:

On May 29, 1992, this Board granted in part and denied in part a petition for review filed by the Miners Advocacy Council (“MAC”). This petition arose out of the issuance in 1991 by U.S. EPA Region X of a set of 31 virtually identical NPDES permits to individual placer miners in Alaska. The Miners Advocacy Council requested an evidentiary hearing on numerous provisions of the per- mits. MAC is not a permit holder but rather is a trade association representing the affected industry. While this Board found that the denial of an evidentiary hearing was appropriate in all respects, VOLUME 4 MINERS ADVOCACY COUNCIL 231 it granted review of a legal issue not suitable for an evidentiary hearing.

The legal issue on which review was granted was whether 40 CFR § 125.3(d), which requires a permit writer to consider the “proc- ess employed” in setting case-by-case limitations in technology-based permits, precludes the Region from dividing the integrated placer mining process by authorizing discharges from one part of that proc- ess (sluicing) while not authorizing discharges from another part of that process (hydraulic removal of overburden). The parties submit- ted briefs on this issue in accordance with the previous order. More specifically, MAC submitted a brief on June 18, Region X a response on July 30, and MAC a reply brief on August 13.

MAC, in its June 18 brief, argues that a permit writer must consider the entire process used when setting case-by-case effluent limitations and that the regulations do not require a discharger to obtain different permits for different phases of his operation. For this reason, MAC argues that the Region “improperly denied a dis- charge from the hydraulic removal of overburden.” MAC Brief at

4. The MAC brief also states that it is not unusual for a miner
   to spend the first portion of a mining season removing the overburden and the second portion sluicing the pay gravels. Thus, MAC asserts “{ilf a miner is not sluicing at the time he is removing overburden, he cannot recycle any excess water created by thawing the frozen overburden through his recovery plant.” Id. In this instance, the prohibition of a discharge from the removal of the overburden would prohibit the use of hydraulic removal and effectively prohibit mining. MAC also presents data on the relative cost of hydraulic and mechan- ical methods for removing overburden, purporting to show that hy- 140 CFR §124.74(b)(1), 57 Fed. Reg. 5336 (Feb. 13, 1992), provides that the Environmental Appeals Board may review a purely legal issue, even though a Regional Administrator has correctly denied an evidentiary hearing on the issue:

This paragraph allows the submission of requests for evidentiary hearings even though both legal and factual issues may be raised, or only legal issues may be raised. In the latter case, because no factual issues were raised, the Regional Administrator would be required to deny the request. However, on review of the denial the Environmental Appeals Board is authorized by § 124.91(a)(1) to review policy or legal conclusions of the Regional Administrator. EPA is requiring an appeal to the Environmental Appeals Board even of purely legal issues involved in a permit decision to ensure that the Environmental Appeals Board will have an opportunity to review any permit before it will be final and subject to judicial review. VOLUME 4 232 ENVIRONMENTAL ADMINISTRATIVE DECISIONS draulic removal may be the only cost-effective method that can be employed at some sites.

Region X, in its response, argues first that the issue of permits for the hydraulic removal of overburden was not presented to the Region during the 1991 permit process. According to the Region, “(njone of the 1991 permit applications described hydraulic removal of overburden as a process that would be employed.” Region’s Re- sponse at 2. The Region further states that, to its knowledge, no 1991 permit applicant even considered using the process at his or her mine site. Id. The Region also indicates that it believes that whether the hydraulic removal of overburden and sluicing are an integrated process is a question of fact. If the Board determines this issue to be before it, it should remand it to the Region for resolution. Id. at 3.

MAC, in its reply brief, takes issue with the Region’s assertion that the issue was not raised in the permit process. MAC indicates that the issue was raised in its comments on the draft permit. MAC also indicates that “simply because no applicant mentioned the proc- ess of hydraulic removal of overburden when applying for a permit is not proof that such applicant did not wish to utilize that process.” MAC Reply at 2. MAC adds that since the Region has been prohibit- ing discharges from hydraulic removal in permits issued since 1986, a permit applicant would have been “foolish” to apply for a permit authorizing such a discharge. In addition, MAC states that “the appli- cations required by EPA Region X to apply for a permit to discharge simply do not provide an applicant the opportunity of supplying de- tailed information.” Id.

We find that the issue of the hydraulic removal of overburden was presented during the 1991 permit process. While it may not have been presented clearly by any permit application, MAC objected in its comments on the draft permit to the provision stating that “{d]ischarges from hydraulic overburden removal operations are not authorized under this permit.”2 By including this statement, the Region has anticipated at least the possibility of hydraulic removal and taken a position on the effect of this permit on such operations. We believe that is sufficient to find that the issue is before us.

On the legal issue presented, the Region states that it recognizes “that NPDES permit limitations are derived based on a consideration

2Permit at Part I.E.3.

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MINERS ADVOCACY COUNCIL 233
of the entire process employed upstream from a discharge point or points.” Region’s Response at 3-4. However, it goes on to say that:

Establishing permit limits for a particular mining operation involving the hydraulic removal of overbur- den, however, will require a “detailed evaluation” in- cluding, among other things, an analysis of available overburden removal methods and a determination that alternative, non-discharging methods are infea- sible at an applicant’s mine site. Region’s Response at 4.

The Region also states that it “does not dispute that one permit application could be submitted for all the mining activities conducted by a given mining operation” and that “[i]f any miner wants to have one permit issued for discharges from both operations, the miner may submit a single permit application to the Region.” Region’s Re- sponse at 3.

In addressing this issue, it is important to keep distinct two separate questions: whether the permit must address removal of over- burden, including proposed use of hydraulic removal, and what the terms of the permit addressing removal of overburden should be.

The Region seems to concede that the answer to the first question is that removal of overburden is part of the “process” to be considered for which a miner may obtain a single permit. We agree, and that resolves the legal issue for which we granted review.

Having determined that removal of overburden must be consid- ered, we also agree with the Region that determining the appropriate permit limits for hydraulic removal of overburden requires a site- specific factual analysis. Such an analysis did not take place here for any of the permits since, in the Region’s view, no permit applica- tion raised this issue. The Region has now acknowledged the possible confusion as to whether a single permit application could have been submitted covering both sluicing and overburden removal and has indicated that it will accept a single application for this purpose. While it is normally the obligation of the permit applicant to identify clearly all possible discharge points to be covered by a permit,? we believe this case warrants giving the permit applicants another, clear opportunity to at least apply for a permit covering discharges from

3 See 40 CFR § 122.21(g).

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234 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

hydraulic removal of overburden. This will provide an equitable reso- lution in light of the confusion that even the Region acknowledges exists.

Therefore, we are remanding this proceeding to Region X with direction that it provide within 30 days of the date of this Order a notice to each permit holder in this case that he or she may submit a revised permit application covering discharges from both sluicing operations and hydraulic overburden operations at the same mine site. Any such permit application received shall be processed in accordance with NPDES regulations and the resulting permit will supersede the 1991 permit.4 The resulting permit may be appealed as provided in 40 CFR § 124.91.

Permit condition Part I(E)(3), which provides that discharges from hydraulic removal of overburden are not authorized, is presently stayed by this appeal in accordance with 40 CFR § 124.15. This condi- tion will remain stayed until the conclusion of the period allowed for submission of an amended permit application. For any permit for which an amended permit application is submitted, the stay shall remain in effect throughout the permit issuance and permit appeal process. For any permit for which an amended permit application is not submitted, the remand will be considered completed upon the passage of the deadline for submitting an amended application. This will constitute final Agency action in accordance with 40 CFR
§ 124.91(f)(3).

So ordered.

4In issuing any revised permit, the Region should assure that the requirements relative to incidental water from hydraulic removal of overburden are clearly stated, given that the Region admits that there is an apparent inconsistency between the current permit limitation and the Region’s explanation of its effect.

5Stay of this condition does not allow discharges from hydraulic removal since even if the express prohibition is stayed, there is no permit presently authorizing such discharges.

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